United States of America v. Jeffrey E. Creek

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1942
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JEFFREY E. C REEK,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 22 CR 40045 — Staci M. Yandle, Judge.
____________________
A RGUED J ANUARY 19, 2024 — DECIDED M ARCH 6, 2024
____________________
Before ST. EVE, K IRSCH , and LEE, Circuit Judges.
ST. EVE, Circuit Judge. This appeal asks whether a tin can
for chewing tobacco could be a “destructive device” within
the meaning of the National Firearms Act. Yes, the district
court held—so long as that can is filled with energetic pow-
der, sealed with adhesive, and outfitted with a fuse. Because
Jeffrey Creek possessed such a can, the court applied a two-
level “destructive device” enhancement in calculating his

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Guidelines range. Our precedent supports that enhancement,
and his other grounds for appeal fail too. We affirm.
I. Background
Jeffrey Creek came to the attention of federal agents when
United States Customs and Border Patrol agents intercepted
a package from China headed to his address. When they
opened the package, labeled “TIRE REMOVAL EXTENSION
TUBE,” they found a silencer. After securing an anticipatory
warrant to search Creek’s residence, they conducted a con-
trolled delivery of the silencer and then executed the warrant.
Inside, they found five firearms (including two “ghost guns”
made from plastic parts), magazines, and ammunition.
Creek also told the agents about a “firework” on his
dresser. This “firework” comprised a “tin can” that Creek had
filled with black powder, rigged with a wick, and covered in
tape. Later testing confirmed the can contained 12.35 grams
of energetic powder, something like gunpowder. Creek told
agents that he wanted the device to be “watertight” because
he liked to throw this kind of device into a lake or field to “get
a big boom.” He also admitted to using meth regularly.
Creek was thereafter charged with unlawfully possessing
a firearm as a felon in violation of 18 U.S.C. § 922(g)(1). Creek
pleaded guilty to the charge. Probation prepared Creek’s
presentence investigation report (“PSR”), which disclosed
three previous convictions in the criminal history section.
Two of those convictions, dating back to 1996 and before,
were for unlawfully possessing a silencer, an Illinois crime.
These convictions were too old to formally count toward
Creek’s criminal history score under the Guidelines, which
look back only 15 years. The other offense did count, though.

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No. 23-1942 3
In 1999, authorities caught Creek operating a meth lab where
they discovered 22 firearms (including an M16 rifle), a pipe
bomb, and a grenade. That conviction counted for three crim-
inal history points.
The PSR also outlined Creek’s history of drug abuse. Da-
ting back to high school, he had a history of using cocaine and
methamphetamine. After his stint in prison for the 1999 meth
lab conviction, he stayed clean for about six years. He re-
lapsed in 2019 and fell into daily methamphetamine use.
Creek’s sentencing hearing took place on May 4, 2023.
Over Creek’s objection, the district court applied a two-level
sentencing enhancement for possessing a “destructive de-
vice,” reasoning that what Creek called a firework was “fully
assembled” and essentially a bomb. After all, it “had a metal
canister, it contained ignitable powder, and, it was completely
sealed and had an ignitable fuse.” With this enhancement, the
district court calculated Creek’s Guidelines range of impris-
onment at 41–51 months.
The district court varied upward from this range. Reflect-
ing on Creek’s criminal history and advising counsel that it
was considering this variance, the court posited that “the
Guidelines to some degree understate or underrepresent the
seriousness of Mr. Creek’s criminal history” because his mid-
1990s offenses were relevant despite their exclusion from the
Guidelines calculation. It also expressed concern over Creek’s
possession of “ghost guns,” which came with an “increased
risk associated with untraceable weapons.”
After Creek’s allocution, the district court returned to the
concern that he was dangerous and beyond deterrence. Dis-
patching Creek’s argument that he had not hurt anyone, the

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4 No. 23-1942
district court stated: “The headlines are riddled with situa-
tions and cases that are similar,” referring to mass shootings.
Summing up its reasoning, the court leaned on the sen-
tencing factors set forth in 18 U.S.C. § 3553(a), explaining that
“[Creek’s] personal history, … criminal history, the nature
and circumstances of this offense, the need to promote a re-
spect for the law, the need to attempt to address specific de-
terrence … the combination of his acts containing explosive
devices and his use of dangerous drugs, including metham-
phetamine” justified a stiff sentence.
The court went on: “the most important thing to this Court
in this case is the need to protect the public from future crimes
by Mr. Creek. I will not shrug off his conduct as not hurting
anybody. I think the public is at a significant risk.”
All told, the district court imposed a sentence of 96
months’ imprisonment—45 months above the top end of
Creek’s Guidelines range. The court confirmed that defense
counsel neither needed further explanation on the § 3553(a)
factors nor felt that it had not addressed the main arguments
in mitigation.
II. Analysis
This appeal raises three disputes about Creek’s sentence.
We start with the destructive device enhancement, then turn
to Creek’s other arguments about his criminal history score
and the district court’s explanation for his sentence.
A. Destructive Device Enhancement
To contest his two-level enhancement, Creek claims his
makeshift explosive was just a firework. If he is correct, this
would bear on his Guidelines range.

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No. 23-1942 5
Section 2K2.1(b)(3)(A) of the Sentencing Guidelines calls
for a two-level increase in the defendant’s offense level if the
offense involved “a destructive device” that is not a “portable
rocket, missile, or a device for use in launching a portable
rocket or a missile” (those latter get a much weightier en-
hancement). The provision adopts the National Firearms
Act’s definition of “destructive device” in applying the en-
hancement for possessing them. The Act provides:
The term “destructive device” means (1) any ex-
plosive, incendiary, or poison gas (A) bomb …
or (F) similar device; (2) [certain cannonlike
large-bore devices]; and (3) any combination of
parts either designed or intended for use in con-
verting any device into a destructive device …
and from which a destructive device may be
readily assembled. The term “destructive de-
vice” shall not include any device which is nei-
ther designed nor redesigned for use as a
weapon …. 26 U.S.C. § 5845(f).
The Act thus treats a “bomb” differently from a “combina-
tion of parts.” A “bomb” is facially a “destructive device” un-
der subsection (f)(1). But a “combination of parts” is a “de-
structive device” under subsection (f)(3) only if it is “de-
signed” to convert a device into a destructive device or the
parts are intended to be readily assembled into such a device.
See United States v. Copus, 93 F.3d 269, 272 (7th Cir. 1996). And
under either rubric, devices “neither designed nor redesigned
for use as a weapon” enjoy an exception.
That brings us to the crux of Creek’s argument on appeal.
He wanted the district court to proceed under subsection
(f)(3), with its subjective intent inquiry, rather than the

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6 No. 23-1942
subsection (f)(1) rule. In support, Creek relies on one of our
leading “destructive device” precedents, United States v. John-
son, 152 F.3d 618 (7th Cir. 1998). On Creek’s read of Johnson,
subsection (f)(1) applies only when the device is unambigu-
ously a bomb or similar device. But, he says, a device that has
other, licit purposes cannot fall within subsection (f)(1)—in-
stead analysis must proceed under (f)(3) and fold in its sub-
jective intent inquiry. Creek finally argues that fireworks do
have a licit purpose and says it follows that the district court
should have considered his subjective intent.
Creek’s argument tracks with Johnson to an extent. It is
true, for example, that we have held a “firecracker has a useful
social and commercial purpose.” Id. at 627. It is also true that
we have set up a device’s “legitimate social purpose” (or lack
thereof) as the “ultimate issue” in determining whether a
weapon’s “design” places it within the statute. Id. at 626. But
that does not save Creek.
Where Creek goes wrong is assuming a bare assertion that
the device he possessed was a “firework” sufficed to head off
(f)(1)’s application. But the district court looked at our prece-
dent placing a device in the (f)(1) category that exhibited four
features: a metal casing, an adhesive seal, explosive powder,
and a fuse. Copus, 93 F.3d at 272. Then it determined Creek’s
device shared those four characteristics and was “fully assem-
bled.” That amounted to a factual finding that the device was
an (f)(1) “bomb … [or] similar device,” not a “combination of
parts” as in (f)(3).
We review that finding for clear error only. United States v.
Barker, 80 F.4th 827, 834 (7th Cir. 2023). There was none. We
have explained that devices are “both built like bombs and …
capable of producing bomb-like effects” when they include “a

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No. 23-1942 7
metal casing containing explosive powder that was epoxied
shut and … a fuse.” Copus, 93 F.3d at 273. Creek’s device
checked all those boxes, with the slight variation that tape, not
epoxy, sealed his explosive. It was proper to proceed under
(f)(1) for this “fully assembled” device. That is what the dis-
trict court did, so we need not address Creek’s subjective in-
tent argument.
The Johnson language Creek relies on does not compel a
different result. Nor need we decide whether his take on the
case—that an object that has “both a legitimate and an illegit-
imate use” can fall only within (f)(3)—is correct. We have no
trouble concluding that Creek’s object had no legitimate use.
Id. at 628. Even if Creek planned to use his contraption as a
firework, that is irrelevant. This was a fully assembled de-
structive device under (f)(1), as Copus and Johnson explain.
That ends the inquiry.
Creek also argues that even if his “firework” otherwise fell
within the definition of a “destructive device,” it nevertheless
was not such a device because it falls within § 5845(f)’s “nei-
ther designed nor redesigned for use as a weapon” exception.
His argument relies on United States v. Hammond, 371 F.3d 776
(11th Cir. 2004). There, the Eleventh Circuit required a “plus
factor” to establish that someone designed the explosive as a
weapon: “Statutory coverage depends upon proof that a de-
vice is an explosive plus proof that it was designed as a
weapon.” Id. at 780. Examples of plus factors might include
the explosive charge being “surrounded by metal or contain-
ing other hard projectiles.” Id. at 781.
We have never adopted the “plus factor” analysis. Instead,
we handle that “designed for use as a weapon” inquiry
through the “legitimate social or commercial purpose” test

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8 No. 23-1942
that Creek has now failed. Besides, Creek’s device was “sur-
rounded by metal,” so even under the Hammond test he would
struggle. Id. The can here is a far cry from the “cardboard tube
explosive device” in that case, which would have “propelled
[nothing] but bits and pieces of cardboard.” Id. at 781, 780.
In short, the district court properly imposed the destruc-
tive device sentencing enhancement.
B. Sentencing Challenges
Creek also raises four other challenges to his sentence.
First, he says the district court mismanaged his criminal his-
tory score by considering stale offenses that the Guidelines do
not. He next contends the district court rested its sentence, in
part, on improper speculation. He then argues the district
court did not properly consider his substance abuse disorder
as a mitigating factor. And finally, he charges the court with
imposing a substantively unreasonable sentence. All fail.
1. Criminal History Score
Creek first complains the district court erred by looking
back too far in assessing his criminal history. Recall that in the
mid-1990s, Creek twice pleaded guilty to possessing a si-
lencer. But in calculating a defendant’s criminal history score,
the Sentencing Guidelines do not take into account a defend-
ant’s conduct dating back more than fifteen years before the
convicted offense (unless the resulting imprisonment extends
into the fifteen-year lookback). See U.S.S.G. § 4A1.2(e)(1). The
district court, therefore, could not include these old convic-
tions in Creek’s criminal history score. Nor did it.
The district court did, however, consider them in varying
upwards from Creek’s Guidelines range. Creek says the dis-
trict court should have explained itself more fully. He notes

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No. 23-1942 9
that under U.S.S.G. § 4A1.3(c)(1), a “court shall specify in
writing” “the specific reasons why the applicable criminal
history category substantially under-represents the serious-
ness of the defendant’s criminal history or the likelihood that
the defendant will commit other crimes” when making an up-
ward departure. This was not a departure, though—it was a
variance. Those get a more deferential, holistic review. See
United States v. Settles, 43 F.4th 801, 805 (7th Cir. 2022).
That is partly why we have reaffirmed, time and again,
that district courts are “entitled to consider the defendant’s
full criminal history and to impose a sentence tailored to his
record.” United States v. Vasquez-Abarca, 946 F.3d 990, 995 (7th
Cir. 2020); see also United States v. Griffin, 793 Fed. App’x 424,
426 (7th Cir. 2019). Indeed, this is entirely consistent with the
maxim that “a sentencing judge has the discretion to disagree
… with a particular provision of the Sentencing Guidelines.”
United States v. Rosales, 813 F.3d 634, 637 (7th Cir. 2016). Sen-
tencing judges exercise discretion. That—and not anything
improper—is what happened here.
The district court found that “the Guidelines to some de-
gree understate or underrepresent the seriousness of Mr.
Creek’s criminal history.” In particular, the district court
mused that the age of Creek’s convictions—“20 years ago, or
what have you”—only “makes a difference when there’s no
relationship or any concern with the current offense conduct.
But that’s not the case here.” Citing “a continuum between
that previous criminal history” and Creek’s current offense,
the court determined an upward variance was appropriate.
This explanation was sufficient.

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10 No. 23-1942
2. Public Safety
Creek also takes issue with the district court’s comments
about his possession of “ghost guns.” At the sentencing hear-
ing, Creek argued in mitigation that he did not hurt anyone,
preferring to collect guns rather than shoot them at people.
The district court dismissed that argument, explaining:
The headlines are riddled with situations and
cases that are similar. And family, friends, folks
in general, when they talk about it, or talk about
how there was no indication, they were shocked
and surprised that certain individuals engaged
in conduct that did hurt people. I’m not putting
that on Mr. Creek. But what I am saying is,
again, this Court will not bury its head in the
sand when we got a person possessing silencers
and ghost guns and explosive devices.
Creek reads this portion of the transcript to premise the
sentence on “speculation or unfounded allegations.” United
States v. England, 555 F.3d 616, 622 (7th Cir. 2009). That would
be error, for “due process requires that sentencing determina-
tions be based on reliable evidence.” Id. Still, a sentencing
court may “situate a defendant’s firearm offense against the
backdrop of statistics and observations about widespread gun
violence in the area.” United States v. Saldana-Gonzalez, 70
F.4th 981, 984 (7th Cir. 2023) (cleaned up).
The district court’s concerns here fall into that latter, per-
missible category. Far from speculating about Creek, the dis-
trict court set him apart, clarifying: “I’m not putting that on
Mr. Creek.” The court only identified the potential for Creek

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No. 23-1942 11
to go from gun collector to gun user. There was no error in
tailoring Creek’s sentence to mitigate that risk.
3. Drug Use
Next Creek accuses the district court of skipping over his
drug-use mitigation argument. At sentencing, he urged the
court to impose a lower sentence to account for his substance
abuse disorder. But he waived any claim that the district court
failed to consider this mitigation argument by opting not to
raise it at sentencing. We have encouraged district courts to
“inquire of defense counsel whether they are satisfied that the
court has addressed their main arguments in mitigation.”
United States v. Garcia-Segura, 717 F.3d 566, 569 (7th Cir. 2013).
If counsel answers in the affirmative, he waives a later chal-
lenge for failure to address an argument on appeal. Id. This
district court heeded that call, and Creek’s lawyer indicated
he was satisfied. That is waiver.
Even on the merits, we would reach the same result. Drug
abuse might have some mitigating impact in a case about
money—fraud or the like—because the substance abuse dis-
order engenders financial desperation. See, e.g., United States
v. Dixon, 527 Fed. App’x 524, 526 (7th Cir. 2013) (district court
could conclude conspiracy involvement “fueled in large
measure by [the defendant’s] own addiction and her physical
need for drugs”). The district court was entitled to find miti-
gation absent here. Creek did not need to own guns to feed
his habit, and (as the district court observed) his drug use
makes the cache of illegal guns more worrisome.
4. Substantive Reasonableness
Last, Creek complains that the district court imposed a
substantively unreasonable sentence that was dispropor-

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12 No. 23-1942
tionately severe for his conduct. He bears a heavy burden, for
we review challenges to the substantive reasonableness of a
sentence only for abuse of discretion. United States v. Miles, 86
F.4th 734, 743 (7th Cir. 2023). The ultimate question is whether
the district judge “imposed a sentence for logical reasons that
are consistent with the § 3553(a) factors” that govern sentenc-
ing. Id. Even for an above-Guidelines sentence like we face
here, we “will not presume a sentence to be unreasonable.”
United States v. Hendrix, 74 F.4th 859, 871 (7th Cir. 2023).
One of the key factors is “the need for the sentence im-
posed … to protect the public from further crimes of the de-
fendant.” 18 U.S.C. § 3553(a)(2)(C). This formed the founda-
tion for Creek’s above-Guidelines sentence. The district
court’s explanation had a consistent theme: Creek is danger-
ous. “[T]here is an absolute need to protect the public from
Mr. Creek,” the court averred. It went on. “[T]he most im-
portant thing to this Court in this case is the need to protect
the public from future crimes by Mr. Creek.” Further still: “I
think the public is at a significant risk.”
The factors also call on district courts to consider the need
“to afford adequate deterrence to criminal conduct.”
§ 3553(a)(2)(B). Here too the court’s message was plain: “I’m
not sure that anything will deter Mr. Creek at this point.” It is
entitled to that judgment—and equally entitled to vary
Creek’s sentence accordingly.
* * *
The judgment of the district court is
AFFIRMED.

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