United States of America v. Anthony Gay

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2097
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY GAY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 4:20-cr-40026-JES-JEH-1 — James E. Shadid, Judge.
____________________
ARGUED APRIL 4, 2024 — DECIDED APRIL 12, 2024
____________________
Before EASTERBROOK, HAMILTON, and KOLAR, Circuit
Judges.
EASTERBROOK, Circuit Judge. Anthony Gay was a passenger
in a car that police stopped for a traffic offense. As soon as the
car came to rest (following a high-speed chase), Gay walked
away briskly, ignored an order to halt, then took off running.
Police pursued and caught him after he fell, resumed running,
but eventually surrendered. They testified at his trial that they
found a gun where Gay had fallen—and later the police found

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2 No. 23-2097
bullets in a motel room Gay had rented. Because of his felony
convictions, Gay is forbidden to possess either firearms or am-
munition. 18 U.S.C. §§ 922(g)(1), 924(a), 924(e). The indict-
ment contained one firearms count and one ammunition
count. After the jury returned verdicts of guilty, Gay was sen-
tenced to 84 months’ imprisonment on each count, to run con-
currently, plus three years’ supervised release.
Gay’s lead argument on appeal is that the evidence does
not support his conviction on the firearms charge. He does not
contest the sufficiency of the evidence on the ammunition
count. Still, the ammunition illuminates the firearms dispute.
Gay checked into a motel for a prepaid, week-long stay.
He insisted that the motel not clean his room or allow anyone
else to enter. Gay extended the stay for two more weeks, each
prepaid. Because Gay was on parole, he was required to tell
his supervising officer where he was staying, but he did not
do so. Gay was arrested the day before his allowed time at the
motel expired. He called the motel from jail and asked the
manager to let his girlfriend pick up his property. The man-
ager replied that the room would be sealed until the police
accompanied Gay’s girlfriend or he obtained a court order.
The room was locked so that the staff’s electronic keys could
not open it. Two weeks passed without any further payment
by Gay, and the motel needed the room for other clients. The
manager entered to remove Gay’s property and found a bag
of bullets in a dresser drawer. After the manager called 911,
police arrived and retained the bullets.
Gay asked the district judge to suppress the bullets on the
ground that the entry had violated his rights under the Fourth
Amendment. That motion was denied for multiple reasons:
First, Gay’s right to occupy the room had expired two weeks

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No. 23-2097 3
earlier, and the manager was entitled to reclaim the space. A
guest’s reasonable expectation of privacy ends when his right
to occupy the room ends. See, e.g., United States v. Procknow,
784 F.3d 421, 426 (7th Cir. 2015). Second, the manager found
the bullets before the police were involved, and a private
search does not require a warrant or probable cause even
when a privacy interest is involved. See, e.g., United States v.
Jacobsen, 466 U.S. 109 (1984). Third, the manager admi`ed the
police and had every right to do so under applicable state law.
Cf. United States v. Thomas, 65 F.4th 922 (7th Cir. 2023). The
judge might have added that Gay, who was on parole, had a
severely diminished expectation of privacy to begin with.
Samson v. California, 547 U.S. 843 (2006), holds that parole is a
form of custody allowing searches that would require a war-
rant once the sentence expires.
So the bullets were properly admi`ed into evidence,
which supports the firearms charge too. Gay maintains that
the weapon the police recovered may have been planted or
perhaps was on the street before he fell. The squad car’s dash-
board camera and the pursuing officer’s body camera lost him
when he ran around a corner. Yet the testimony of one eye-
witness can support conviction without video (or other) cor-
roboration—and the bullets provided any corroboration that
a jury may have wanted. For the gun contained cartridges of
two different kinds (though the same caliber). Two weeks
later the police acquired the bag of bullets from the motel
room and found the same mixture of cartridge types. This is
powerful evidence that the gun and bullets belonged to the
same person. What’s more, the jury could infer that Gay ran
from the police precisely so that he could get rid of a gun that
he knew he was forbidden to possess. All in all, the evidence
permi`ed a reasonable jury to convict on both counts.

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4 No. 23-2097
The trial at which Gay was convicted was his second. The
jury at the first could not reach a unanimous verdict, so the
judge set the case for another. Originally the judge named a
date about six weeks after the end of the first trial but later cut
the gap to four weeks, stating that a later start might push the
trial into a holiday period that could make it difficult to select
a jury. Gay now argues that the reduction of two weeks in
preparation time was prejudicial. Yet the parties had just been
through a trial; the evidence had been assembled, and mem-
ories about what had happened at the first trial were fresh.
Judges have discretion in se`ing trial dates. See, e.g., United
States v. Egwaoje, 335 F.3d 579, 587–88 (7th Cir. 2003); United
States v. Davis, 604 F.2d 474, 480 (7th Cir. 1979). That discretion
was not abused. We appreciate that Gay, who was represent-
ing himself, may have had more difficulty than a lawyer when
preparing for the second trial. Still, the judicial system need
not extend special accommodations to someone who exer-
cises his right to self-representation.
The evidence at the two trials was not identical. The judge
excluded from the second trial some evidence, admi`ed at the
first, that the judge deemed irrelevant or distracting. For ex-
ample, Gay wanted to call Officer Jason Foy to testify that the
area where the gun was found was a “high crime” area. The
district judge doubted the relevance of this testimony. To the
extent the point was relevant, it could have been elicited
through the testimony of Detective Greg Whitcomb, yet Gay
never asked about this while Whitcomb was on the stand.
Another example: Gay wanted Officer Jennifer Laud to
testify that the gun had been reported stolen. The judge
thought this irrelevant (Gay was charged with possessing a
firearm, not a stolen firearm in particular). Allowing the jury

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No. 23-2097 5
to hear that the gun had been stolen could have made Gay
worse off by implying that he was the thief or had acquired
the weapon from a thief.
Last example: Gay wanted to call Dora Villareal, a local
prosecutor, to testify that police had seized and retained some
of his property (including cash) when they arrested him. The
judge thought this irrelevant to the charges and observed that
exploring it at trial would divert a`ention toward what had
become civil litigation between Gay and the police after they
arrested him on a prior occasion. Although the judge did not
cite Fed. R. Evid. 403, the rationale for exclusion is clear.
We have said enough to show that Gay was convicted on
sufficient evidence in a fair trial. We have not mentioned all
of his arguments, but those we have omi`ed do not require
separate discussion—except for his contention that the prose-
cution was unconstitutional, root and branch. Gay maintains
that the Second Amendment permits persons with felony con-
victions to possess both firearms and ammunition, notwith-
standing statutes such as 18 U.S.C. §922(g)(1).
This argument is hard to square with District of Columbia
v. Heller, 554 U.S. 570 (2008), which in the course of holding
that the Second Amendment creates personal rights pointedly
stated that “longstanding prohibitions on the possession of
firearms by felons” are valid. Id. at 626, 635. When extending
Heller to the states, the Court in McDonald v. Chicago, 561 U.S.
742, 786 (2010) (lead opinion), reassured readers that all of the
reservations and provisos in the Heller opinion retain validity.
And in the Court’s most recent Second Amendment decision,
New York State Rifle and Pistol Association, Inc. v. Bruen, 597 U.S.
1 (2022), Justices Alito and Kavanaugh, whose votes were es-
sential to the majority, wrote separately to say that Bruen did

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6 No. 23-2097
not change anything about Heller. See 597 U.S. at 72 (Alito, J.,
concurring) (“Our holding decides nothing about who may
lawfully possess a firearm or the requirements that must be
met to buy a gun. Nor does it decide anything about the kinds
of weapons that people may possess. Nor have we disturbed
anything that we said in Heller or McDonald about restrictions
that may be imposed on the possession or carrying of guns.”);
id. at 80–81 (Kavanaugh, J., joined by the Chief Justice, con-
curring) (endorsing the statement in Heller about the propri-
ety of denying firearms to felons).
One must not read decisions of the Supreme Court as if
they were statutes. The Justices have yet to consider the ques-
tion whether non-violent offenders may wage as-applied
challenges to §922(g)(1). One circuit has held that they may,
in light of Bruen, and that someone whose most serious con-
viction is for a non-violent crime that did not lead to even one
day in prison retains a constitutional right to keep and bear
arms. Range v. ALorney General, 69 F.4th 96 (3d Cir. 2023) (en
banc), petition for certiorari pending under the name Garland
v. Range (No. 23-374). Other circuits have disagreed with that
conclusion in post-Bruen decisions. See, e.g., United States v.
Cunningham, 70 F.4th 502, 506 (8th Cir. 2023); Vincent v. Gar-
land, 80 F.4th 1197, 1199–1202 (10th Cir. 2023). We may as-
sume for the sake of argument that there is some room for as-
applied challenges, but that assumption does not assist Gay.
When describing the persons who possess rights under
the Second Amendment, Bruen repeatedly used the phrase
“law-abiding, responsible citizens” or a variant. E.g., 597 U.S.
at 26, 70. Gay does not fit that description. He has been con-
victed of 22 felonies, including aggravated ba`ery of a peace
officer and possessing a weapon while in prison.

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No. 23-2097 7
Gay was on parole after spending almost 25 years in con-
finement and had promised as part of the agreement to obtain
his release that he would not possess a firearm. He violated
that condition (in addition to violating the condition requir-
ing him to report his residence). To repeat what we said
above: Parole is a form of custody. Gay’s sentences had not
expired; all parole did was allow him to serve some of his sen-
tences outside prison walls.
Just as Samson holds that parolees lack the same privacy
rights as free persons, we conclude that parolees lack the same
armament rights as free persons. Cf. United States v. Perez-Gar-
cia, 2024 U.S. App. LEXIS 6392 (9th Cir. Mar. 18, 2024) (person
on bail awaiting trial lacks a constitutional right to carry fire-
arms).
Instead of contesting §922(g)(1) through a declaratory-
judgment action, as Range did, Gay violated the law in secret
and tried to avoid detection. Cf. United States v. Holden, 70
F.4th 1015 (7th Cir. 2023). He fled from the police by car and
on foot, and flight to avoid prosecution is a crime in most if
not all states. No, Gay is not a “law-abiding, responsible” per-
son who has a constitutional right to possess firearms.
AFFIRMED

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