United States of America v. Dazmine Erving

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 23-2828 & 23-2831
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
D AZMINE E RVING ,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Central District of Illinois.
Nos. 1:22-cr-10033 & 1:20-cr-10012 — James E. Shadid, Judge.
____________________
A RGUED A PRIL 15, 2024 — D ECIDED J ANUARY 20, 2026
____________________
Before KIRSCH , P RYOR , and KOLAR , Circuit Judges.
P RYOR , Circuit Judge. Dazmine Erving was charged with
unlawfully possessing a firearm after a police officer found a
handgun in his car. 18 U.S.C. § 922(g). Erving moved to sup-
press the evidence against him, arguing that the officer lacked
reasonable suspicion for the search. The district court found
the question to be a “close call” but ultimately denied the mo-
tion. Erving then pleaded guilty and received a sentence at

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2 Nos. 23-2828 & 23-2831
the upper end of the advisory United States Sentencing
Guidelines range.
On appeal, Erving contends that the district court should
have granted his suppression motion because the officer did
not have reasonable suspicion to conduct a protective search
of his car. He also argues that the court committed procedural
and constitutional errors at sentencing. Because Erving points
to no reversible error, we affirm.
I. BACKGROUND
We recount the facts, which are not in dispute, as they
were developed at the suppression hearing. See United States
v. Davis, 44 F.4th 685, 688 (7th Cir. 2022).
A. Factual Background
On September 14, 2022, Lieutenant Erin Barisch of the City
of Peoria Police Department was on patrol in an unmarked
police vehicle. He entered Peoria’s River Front Park at about
2:45 a.m. and noticed a red Dodge Durango SUV parked at
the back of a closed, dark parking lot. He decided to investi-
gate. Lt. Barisch illuminated the vehicle with his headlights
and then lit up the driver’s side windows with a spotlight. Lt.
Barisch exited his squad car and used his handheld flashlight
to light up the darkly tinted rear passenger windows of the
Durango.
Two individuals were observed in the rear passenger
seats. As Lt. Barisch approached, he watched them make
“sudden movements,” one of which caught his attention: “the
individual – the male behind the driver’s seat [made] a quick,
sudden movement leaning down and then toward the rear of
the back driver’s seat toward the floorboard, and then he
quickly sat up.” To Lt. Barisch, it looked like the man was

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Nos. 23-2828 & 23-2831 3
hiding something. As Lt. Barisch approached the Durango,
the male started to open the rear passenger door and Lt.
Barisch used his flashlight to illuminate the interior.
Inside sat Dazmine Erving and a female companion. Erv-
ing was semi-dressed; his companion was mostly dressed but
her shirt was pulled upwards. Lt. Barisch assumed he had in-
terrupted a couple attempting to engage in sexual relations.
In addition to observing their state of undress, Lt. Barisch
smelled a “lingering odor of burnt cannabis” but saw no other
indicia of marijuana use. (A later search of the Durango
turned up no other evidence of cannabis.)
Lt. Barisch asked the pair for identification. Erving pro-
vided his Illinois state ID card. The woman said her name was
“Adriana Smith,” born February 5, 2005. But she did not have
identification. Lt. Barisch closed the door to the Durango and
returned to his car to run their information. He discovered
that Erving was serving a term of federal supervised release
for a weapons offense, which began twelve days earlier on
September 2, 2022. He also realized that the woman gave him
false identifying information because a search for her name
and birthdate returned no results, even though she indicated
she had a driver’s license.
When Lt. Barisch returned to the Durango, he asked
whether Erving was on supervised release. Erving said that
he was and gave Lt. Barisch the name of his probation officer.
Lt. Barisch told the pair to step out of the vehicle and they
complied. Erving asked if he could retrieve his shoes from the
front seat. Lt. Barisch agreed and allowed the woman to re-
trieve her belongings too.

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4 Nos. 23-2828 & 23-2831
After allowing Erving and the female companion to get
their belongings, Lt. Barisch directed the pair to the rear of the
vehicle but did not handcuff them. Lt. Barisch poked his head
into the Durango and looked under the driver’s seat, which is
where he thought Erving may have stashed something. He
saw a gun but left it alone and radioed for backup. Once
backup arrived, Lt. Barisch retrieved the gun. Erving was ar-
rested, received Miranda warnings, and admitted the gun be-
longed to him.
B. Procedural History
On September 20, 2022, Erving was indicted for unlaw-
fully possessing a weapon as a felon. 18 U.S.C. § 922(g)(1). The
charge also resulted in a petition to revoke Erving’s super-
vised release.1
1. The Suppression Motion
Erving moved to suppress the firearm, arguing that Lt.
Barisch unlawfully searched the Durango by looking under
the front seat. He contended the warrantless search of his car
was not justified as a protective search. He also claimed that,
because Illinois has legalized cannabis, the odor of burnt can-
nabis does not create probable cause to suspect a violation of
state law.
1 On February 20, 2020, Erving was indicted for unlawfully possessing a
weapon as a felon in violation of 18 U.S.C. § 922(g)(1). For that offense,
Erving pleaded guilty, and the district court sentenced him to serve 37
months in prison and three years’ supervised release. One of the manda-
tory conditions of his supervised release was not committing another fed-
eral, state, or local crime. Based on his arrest for the instant offense, the
Probation Office filed a petition to revoke Erving’s supervised release.

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Nos. 23-2828 & 23-2831 5
In response, the government asserted that the search was
a permissible protective search and that, in any case, the odor
of cannabis gave Lt. Barisch probable cause to search for evi-
dence of a violation of Illinois law. As for this latter argument,
the government requested the district court take sides in a
then-unresolved split among the Illinois appellate courts over
whether the odor of cannabis creates probable cause.2
The district court denied Erving’s motion after an eviden-
tiary hearing. The court concluded Lt. Barisch permissibly
performed a protective search. See Michigan v. Long, 463 U.S.
1032 (1983). In the court’s view, Erving’s furtive movements,
his status as a person on supervised release for a weapons of-
fense, and his companion’s false statements made it reasona-
ble to suspect that Erving was armed and dangerous and
could access the gun. The court did not address whether the
odor of cannabis creates probable cause of an Illinois crime.
2. The Sentencing Hearing
With respect to the new offense, Erving pleaded guilty to
possessing the firearm unlawfully, though he preserved his
right to appeal the court’s suppression decision. As for the
revocation petition in the separate criminal matter, Erving ad-
mitted to violating the conditions of his supervised release.
The district court held the final hearing for Erving’s revoca-
tion of supervised release with his scheduled sentencing hear-
ing in the instant offense.
At the hearing, the parties agreed that Erving faced an ad-
visory guidelines range of 33 to 41 months’ imprisonment
2 The Supreme Court of Illinois has since ruled that the odor of burnt can-
nabis alone does not provide probable cause to conduct a warrantless
search of a vehicle. People v. Redmond, 248 N.E.3d 1026, 1041 (Ill. 2024).

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6 Nos. 23-2828 & 23-2831
based on his criminal history category (VI) and total offense
level (13). U.S.S.G §§ 2K2.1(a)(6)(A), 2K2.1(b)(4)(A), 3E1.1(a)–
(b), 4A1.1(a)–(b), 4A1.2(k). The parties also agreed that Erv-
ing’s supervised-release violation carried a term of 21 to 24
months’ imprisonment.
The government asked the court to impose within-guide-
lines sentences for both offenses, with the terms to be served
consecutively. The government argued Erving was a repeat
offender whose latest offense came just a few days into his
term of supervised release.
Erving sought a below-guidelines term of thirty months’
imprisonment on the § 922(g) charge and asked to serve con-
currently any revocation sentence. He argued his criminal his-
tory was overstated and that pending amendments to the
United States Sentencing Guidelines would reduce his crimi-
nal history score, too. He also argued that there were signifi-
cant factors in mitigation that pointed to a lower sentence, in-
cluding that he voluntarily left behind a former gang affilia-
tion at no small danger to himself and his family and that he
was battling mental health issues. In allocution, Erving took
responsibility for his actions, described growing up in a cycle
of trauma, and maintained that he carried a gun only for self-
defense.
In rendering the sentence, the district court began by ac-
cepting Erving’s argument that pending amendments to the
United States Sentencing Guidelines would reduce his crimi-
nal history points, and the court agreed to give him the benefit
of those amendments. But that adjustment did not change
Erving’s criminal history category. To reduce his criminal his-
tory category, Erving also needed to demonstrate that his
criminal history was overstated.

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Nos. 23-2828 & 23-2831 7
The court recognized Erving’s argument that his criminal
history was overstated but saw things differently:
[Counsel] argues why the criminal history cate-
gory is overstated and points to an obstruction,
a contempt, and a mob action. And if those were
ignored or set aside or excused, might change
the Criminal History Category from VI to V.
But I would likely say -- and I haven’t reviewed
the transcript of the previous sentencing, [coun-
sel] -- that that argument was probably made by
defense counsel at that time when Mr. Erving
was sentenced to 37 months for a gun violation
which ironically, the criminal history, the guide-
line range was the same then as it is now, 33 to
41 months.
…
But I would say, Mr. Erving, you’re making it
difficult for people to defend you and make
these arguments by continuing to commit these
same crimes.
After next addressing Erving’s statements in allocution, the
court imposed a 41-month sentence followed by a consecutive
24-month revocation sentence.
At the end of the hearing, the court offered “one last com-
ment.”
I wanted to leave -- I don’t mean this -- I wanted
to leave your children out of this, but these de-
cisions you’re making are now making it so that
more children are growing up without the

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8 Nos. 23-2828 & 23-2831
guidance of a father, but if you're going to make
the choices you make, maybe that's better for
them.
But having said that, clearly the last child that
you made, the one born in January was made
probably while you were in a halfway house.
These are simply poor decisions, and they keep
leading to more poor decisions.
And the gun you picked up here was within 12
days after you were put on supervised release.
So, I don’t want to say that it points -- paints a
picture of somebody who’s just likely to con-
tinue to recidivate because I, frankly, think after
listening to you now and listening to you a cou-
ple years ago you can figure out a way to move
away from this. I hope you do so.
Erving timely appealed.
II. A NALYSIS
On appeal, Erving insists that the district court erred by
denying his motion to suppress the firearm. He also contends
that the district court erred at sentencing in two ways. First,
by rejecting the arguments about his criminal history because
he “probably” made those same argument before. Second, by
penalizing him for having children. We address these argu-
ments in turn.
A. The Protective Search
Erving argues that Lt. Barisch’s warrantless search vio-
lated the Fourth Amendment and the district court erred by
denying his suppression motion. “When reviewing a district

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Nos. 23-2828 & 23-2831 9
court’s denial of a motion to suppress, we ‘review the district
court’s legal conclusions de novo and its factual findings for
clear error.’” United States v. Walker, 143 F.4th 889, 895 (7th Cir.
2025) (quoting United States v. Williams, 106 F.4th 639, 653 (7th
Cir. 2024)). Within the realm of fact-finding, we give special
deference to the district court’s credibility determinations un-
less “we are ‘left with the definite and firm conviction that a
mistake has been made.’” United States v. Olson, 41 F.4th 792,
802 (7th Cir. 2022) (quoting United States v. Wendt, 465 F.3d
814, 816 (7th Cir. 2006)).
The Fourth Amendment to the United States Constitution
prohibits “unreasonable searches and seizures.” U.S. C ONST .
amend. IV. This constitutional protection means the govern-
ment usually must obtain a warrant before conducting a
search or seizure. Arizona v. Gant, 556 U.S. 332, 338 (2009). In-
deed, warrantless searches are “per se unreasonable” unless
one of the “few specifically established and well-delineated
exceptions” to the warrant requirement applies. Id. (quoting
Katz v. United States, 389 U.S. 347, 357 (1967)).
Among these is the protective search exception. See Terry
v. Ohio, 392 U.S. 1, 20–27 (1968); Long, 463 U.S. at 1045–52.
Terry marks the genesis of this exception. 392 U.S. at 20–27.
There the Supreme Court held that for “officers to protect
themselves and other[s],” the Fourth Amendment allows
them to conduct a search of a person, often referred to as a
“frisk” or “pat down,” where they “point to specific and ar-
ticulable facts” indicating “that criminal activity may be afoot
and that the persons with whom [they are] dealing may be
armed and presently dangerous.” Id. at 21, 24–25, 30.
Protective searches, though, are not necessarily limited to
a brief search of an individual’s person. Consistent with the

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10 Nos. 23-2828 & 23-2831
Fourth Amendment, an officer may also conduct “area
searches” for weapons “in limited circumstances.” United
States v. Richmond, 924 F.3d 404, 413–14 (7th Cir. 2019) (citation
omitted).
Relevant here, an officer armed with a “reasonable belief
based on ‘specific and articulable facts which, taken together
with the rational inferences from those facts, reasonably war-
rant’ the officers in believing that the suspect is dangerous
and the suspect may gain immediate control of weapons,”
may “conduct[] a legitimate Terry search of the interior of [an]
automobile.” Long, 463 U.S. at 1049–50 (quoting Terry, 392
U.S. at 21). Still, such a search “must be strictly limited to that
which is necessary for the discovery of weapons,” Minnesota
v. Dickerson, 508 U.S. 366, 373 (1993) (internal quotation mark
and citation omitted), and confined to “those areas in which a
weapon may be placed or hidden” within the car, Long, 463
U.S. at 1049. Thus, a protective search of a vehicle is permissi-
ble if officers have reasonable suspicion to believe: (1) “the
suspect is dangerous” and (2) the suspect “may gain immedi-
ate control of weapons.” Id.; see also United States v. Vaccaro,
915 F.3d 431, 436–37 (7th Cir. 2019); United States v. Arnold, 388
F.3d 237, 239 (7th Cir. 2004); United States v. Wimbush, 337 F.3d
947, 950 (7th Cir. 2003).
1. Dangerousness
To meet the first criterion, Lt. Barisch needed reasonable
suspicion to believe that Erving was dangerous. Long, 463 U.S.
at 1049. Reasonable suspicion rests on particularized facts and
requires “more than a hunch but less than probable cause.”
Richmond, 924 F.3d at 411. Put another way, determinations of
reasonable suspicion “must be based on commonsense judg-
ments and inferences about human behavior.” Illinois v.

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Nos. 23-2828 & 23-2831 11
Wardlow, 528 U.S. 119, 125 (2000) (citation omitted). And to
resolve this question, we conduct an objective inquiry, con-
sidering the totality of the circumstances. Richmond, 924 F.3d
at 411.
When evaluating whether a stop is objectively dangerous,
context matters. See United States v. Ford, 872 F.3d 412, 416 (7th
Cir. 2017). The stop here was conducted by a lone officer at
2:45 a.m., in a park known for its propensity to host vice and
narcotics-related crime. Stops that occur in the dead of night
in “area[s] where crime is not a stranger” are generally “more
fraught with potential danger to an officer than would be a
stop during the light of day.” Id. (quoting United States v.
Brown, 273 F.3d 747, 748 (7th Cir. 2001)). That’s a fair descrip-
tion of the scenario that Lt. Barisch encountered in River Front
Park. The increased potential for danger in a secluded, crime-
prone location colors what happened next. Cf. Vaccaro, 915
F.3d at 436.
As Lt. Barisch approached the Durango to investigate, he
saw Erving move in a manner consistent with hiding some-
thing, not with getting dressed quickly. We have long held
that a suspect’s furtive movements matter to the reasonable
suspicion analysis. E.g., Vaccaro, 915 F.3d at 434, 436 (recount-
ing that the suspect “aggressive[ly] move[d] … his entire top
torso and both arms into the back seat of the vehicle”); Arnold,
388 F.3d at 238 (noting the suspect “wormed his way” into the
back seat after being stopped, apparently hid something, and
then returned to the front seat).
Rather than contest Lt. Barisch’s testimony (which the
court expressly found credible), Erving makes two general ar-
guments. First, he contends the phrase “furtive movement” is
not a magic incantation that permits police to justify a vehicle

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12 Nos. 23-2828 & 23-2831
search at every traffic stop. Cf. Long, 463 U.S. at 1049 n.14 (em-
phasizing that every protective search must be justified on its
own terms and there is no blanket right to search a vehicle).
We agree in principle, but this is not a magic words case. Lt.
Barisch explained the movements he saw were “not associ-
ate[d] with getting dressed.” Rather, as he approached the
car, he observed Erving make “a deliberate, sudden, quick
movement leaning down and then quickly back up.” Lt.
Barisch then explained why this was suspicious: “the move-
ments of trying to get dressed would have been significantly
longer and different …. [M]ore of an up-and-leaning-back
movement.” In short, “furtive movements” is shorthand for
Lt. Barisch’s assessment that Erving was trying to hide some-
thing, not to regain his composure.
Second, Erving argues that even if his movements were
vaguely suspicious, the obvious, innocuous explanation for
his movements—getting dressed after being caught during a
back seat escapade—means his movements alone do not sug-
gest objective dangerousness. We agree reasonable suspicion
does not arise from acts that are “consistent” with lawful be-
havior rather than illegal activity. United States v. Paniagua-
Garcia, 813 F.3d 1013, 1014 (7th Cir. 2016). But the presence of
“an innocent explanation” for suspicious behavior alone does
not dispel reasonable suspicion because “absolute[] cer-
tain[ty]” of criminality is not required for a protective search.
Vaccaro, 915 F.3d at 436. And, as already explained, Lt. Barisch
reasonably ruled out the purported innocent explanation for
the movements Erving now presses before us.
Even if Erving’s surreptitious actions alone did not create
reasonable suspicion that Erving was dangerous, we cannot
miss the forest for the trees. After observing Erving move

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Nos. 23-2828 & 23-2831 13
furtively in a vehicle parked at the back of a closed parking
lot at nearly 3 a.m., he opened the door as Lt. Barisch ap-
proached the Durango’s rear passenger door. The odor of
burnt cannabis emanated from the vehicle. This, too, contrib-
uted to reasonable suspicion. Reason to believe a suspect may
be “under the influence of drugs,” including the mere smell
of intoxicants, contributes to reasonable suspicion. Vaccaro,
915 F.3d at 436–37; Ford, 872 F.3d at 415–16. We have little
trouble concluding that the odor of burnt cannabis contrib-
uted to reasonable suspicion for a protective search here.3 It is
reasonable to suspect that someone who is under the influ-
ence of intoxicants is more likely to pose a danger to others.
United States v. Colbert, 54 F.4th 521, 528 (7th Cir. 2022).
Yet, even after all this, Lt. Barisch did not conduct a pro-
tective search immediately. Instead, he waited until after he
learned about Erving’s criminal history and the fact that Erv-
ing was presently on supervised release for a weapons of-
fense. That adds important context because we have repeat-
edly held that knowledge of prior criminal activity can “con-
tribute to reasonable suspicion.” Vaccaro, 915 F.3d at 437.
We see this as a case where the whole is greater than the
sum of its parts. Only once Lt. Barisch knew that he was alone
in a dark parking lot in the dead of night, had smelled burnt
3 Lt. Barisch testified that he smelled burnt cannabis, and the district court
credited this testimony. Erving seems to contest that finding, arguing that
there is no way to verify whether an officer has, in fact, detected an odor
of burnt cannabis. Maybe so. But it is the district court’s prerogative to sort
through witness testimony, even if uncorroborated, and decide who to be-
lieve. United States v. Biggs, 491 F.3d 616, 621–22 (7th Cir. 2007). We see no
reason to think the district court clearly erred in accepting Lt. Barisch’s
account of what he smelled. See Olson, 41 F.4th at 802.

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14 Nos. 23-2828 & 23-2831
cannabis, learned one of the individuals provided him with
false identifying information, and realized that he was deal-
ing with a convicted felon who had apparently hidden some-
thing did Lt. Barisch conduct a search for weapons. At that
point, Lt. Barisch had reasonable suspicion that Erving was
dangerous.
2. Immediate Control of a Weapon
The second Long criterion—ability to gain immediate con-
trol of a weapon—can be satisfied if the suspect is likely to be
released, or permitted to gather belongings from the vehicle.
Vaccaro, 915 F.3d at 437–38.
The parties agree that Erving committed no arrestable of-
fense before Lt. Barisch discovered the weapon, so Erving was
likely to be released. Thus, under Vaccaro, Erving “was not
under arrest [and] could have regained access to his vehicle,”
so the second prerequisite for a protective search is met. Id.
(citations omitted). Erving concedes the second Long criterion
is satisfied given our decision in Vaccaro. Erving argues Vac-
caro was wrongly decided and asks us to overrule it.
We decline the invitation. Vaccaro is not Erving’s real ob-
stacle—Long is. The Supreme Court held that a protective
search is permitted “if the suspect is not placed under arrest”
and will be allowed to return to the vehicle. Long, 463 U.S. at
1051–52. In other words, Vaccaro applied binding precedent
and forecloses Erving’s argument. 915 F.3d at 436–38.
3. Erving’s Fallback Position
Relying on United States v. Rodgers, 924 F.2d 219 (11th Cir.
1991), Erving’s last argument is that Long does not apply be-
cause Lt. Barisch did not act concerned for his own safety
prior to searching the Durango. If Lt. Barisch was not really

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Nos. 23-2828 & 23-2831 15
concerned for his safety, the argument goes, then Long cannot
apply because Long is about officer safety. See Vaccaro, 915
F.3d at 436.
In Rodgers, an officer entered a mobile-home trailer with-
out a warrant “for the purpose of seizing contraband,” seized
the contraband, and then left. 924 F.2d at 222. The Eleventh
Circuit concluded that there were no “specific and articulable
facts” that the area searched “harbored an individual posing
a danger to the officer or others,” in part because the officer
did not search anywhere else in the trailer. Id. (quoting Mary-
land v. Buie, 494 U.S. 325, 327 (1990)). Given the targeted na-
ture of the search and the lack of any reason to suspect that a
dangerous person could access the trailer, the Eleventh Cir-
cuit concluded that the government was trying to shoehorn a
warrantless search of a home into the protective sweep excep-
tion. Id.
Erving maintains that because Lt. Barisch let Erving re-
main in the Durango while he ran Erving’s information, let
Erving retrieve belongings from the vehicle, did not handcuff
Erving until backup arrived, and searched only under the
driver’s seat—rather than conducting a full protective search
of the vehicle or physically restraining either Erving or the fe-
male passenger—it shows Lt. Barisch was not concerned for
officer safety, and thus not permitted to conduct a protective
search.
This argument fails to persuade for numerous reasons.
Fundamentally, our inquiry under the Fourth Amendment is
objective; we are generally unconcerned with officers’ subjec-
tive motivations. Brigham City v. Stuart, 547 U.S. 398, 404
(2006). As such, unusually calm or brave officers can conduct
protective searches. Also, a quick, tailored search is less

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16 Nos. 23-2828 & 23-2831
intrusive on a person’s interests than a longer one. See Terry,
392 U.S. at 10–12, 20–21. By limiting a search to the area that
prompted concern in the first place, officers promote the pur-
pose of the protective search—ensuring safety—while re-
specting the constitutional rights and dignitary interests of
the person searched. Here, Lt. Barisch had reasonable suspi-
cion to believe there was a weapon hidden beneath the
driver’s seat and he conducted a targeted search to confirm or
dispel that suspicion. See Wardlow, 528 U.S. at 123.
* * *
In sum, we conclude the district court rightly denied Erv-
ing’s motion to suppress the evidence obtained from Lt.
Barisch’s search of Erving’s vehicle. The search was justified
by the protective search exception to the Fourth Amend-
ment’s warrant requirement.4
B. Sentencing
Erving contends that the district court committed reversi-
ble procedural and constitutional error at sentencing. We re-
view these claims de novo. United States v. Shaw, 39 F.4th 450,
455 (7th Cir. 2022). Though Erving never objected to either er-
ror during the sentencing hearing, he was not given a chance
to object and did not have to take exception afterwards. See
United States v. Wilcher, 91 F.4th 864, 871 (7th Cir. 2024).
This appeal implicates several principles of proper sen-
tencing procedure. District “[c]ourts must ‘adequately ex-
plain’ the sentences they hand down,” id. (quoting Gall v.
United States, 552 U.S. 38, 50 (2007)), and address the
4 Accordingly, we need not resolve the parties’ dispute over whether the
automobile exception applies.

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Nos. 23-2828 & 23-2831 17
defendant’s principal arguments in mitigation, United States
v. Williams, 887 F.3d 326, 328 (7th Cir. 2018). Separately, de-
fendants have a due process right to be sentenced based on
accurate, reliable information. United States v. Oliver, 873 F.3d
601, 608–09 (7th Cir. 2017); United States v. Helding, 948 F.3d
864, 870 (7th Cir. 2020). A corollary of that right is the prohi-
bition on sentencing defendants based on speculation. United
States v. Newton, 76 F.4th 662, 674 (7th Cir. 2023).
When it comes to reviewing claims of procedural or con-
stitutional error, we review the record “fairly and as a whole.”
United States v. Coe, 992 F.3d 594, 598 (7th Cir. 2021). When
reviewing a sentencing transcript, we read the court’s re-
marks in context, not in isolation. United States v. Gary, 613
F.3d 706, 709–10 (7th Cir. 2010).
1. The Alleged Procedural Error
Erving first argues the district court procedurally erred by
rejecting his “primary” mitigation argument that his criminal
history was overstated. Specifically, he argued to the court
that his prior convictions for obstruction, contempt, and a
mob action exaggerated his criminal history.
But the court concluded otherwise. It focused on Erving’s
recidivism, remarking that by “continuing to commit these
same crimes,” he made “it difficult for people to defend” him.
Indeed, he committed the offense within “12 days after [he]
[was] put on supervised release” for a conviction of the same
offense. In rejecting Erving’s request, the court also remarked
that his arguments “[were] probably made by defense coun-
sel” before at Erving’s prior sentencing for “a gun violation.”
On appeal, Erving contends this statement shows the district
court improperly speculated in rejecting his argument.

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18 Nos. 23-2828 & 23-2831
We disagree. When fairly reviewed in context and as a
whole, the court did not reject Erving’s arguments regarding
his criminal history because they were “probably made” be-
fore. From the record, it is clear the court determined Erving
was a repeat offender who engaged in the same criminal be-
havior—possession of a firearm by convicted felon—even
while on supervised release for a similar weapons conviction.
Thus, we find the district court appropriately considered Erv-
ing’s mitigation argument and did not rely on speculation in
imposing Erving’s sentence. See United States v. Donelli, 747
F.3d 936, 939–40 (7th Cir. 2014); United States v. Nelson, 774
F.3d 1104, 1107 (7th Cir. 2014) (per curiam).5
2. The Alleged Constitutional Error
Next, Erving asserts the district court committed constitu-
tional error at sentencing for penalizing his decision to bear
and raise children, a fundamental right. E.g., Troxel v. Gran-
ville, 530 U.S. 57, 65 (2000) (plurality); Skinner v. Oklahoma ex
rel. Williamson, 316 U.S. 535, 541 (1942); Meyer v. Nebraska, 262
U.S. 390, 399 (1923).
Only constitutionally permissible factors may be used to
determine a sentence. Pepper v. United States, 562 U.S. 476, 489
n.8 (2011). A wide swath of information falls into that cate-
gory. But not everything. For example, a court cannot
5 At oral argument, Erving claimed the district court did not adequately
address several other of Erving’s primary arguments in mitigation, in-
cluding his mental health struggles and difficult, voluntary withdrawal
from a street gang. Because Erving omitted these arguments from his brief
and did not meaningfully press these alleged errors until oral argument,
we conclude he has waived them. Tuduj v. Newbold, 958 F.3d 576, 579 (7th
Cir. 2020) (per curiam) (“[A]rguments not raised in an opening brief are
waived.”(citation omitted)).

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Nos. 23-2828 & 23-2831 19
sentence a person based in part on race or gender; those con-
siderations are constitutionally out-of-bounds. Oliver v.
United States, 951 F.3d 841, 844 (7th Cir. 2020); United States v.
Trujillo-Castillon, 692 F.3d 575, 579 (7th Cir. 2012). The United
States Sentencing Guidelines, too, provide that “race, sex, na-
tional origin, creed, religion, and socio-economic status” are
off the table at sentencing. Trujillo-Castillon, 692 F.3d at 579
(citing U.S.S.G. § 5H1.10).
Erving points to these comments, which the court made at
the end of his sentencing hearing, in support of his argument
that the court committed constitutional error:
[T]hese decisions you’re making are now mak-
ing it so that more children are growing up
without the guidance of a father, but if you’re
going to make the choices you make, maybe
that’s better for them. … [C]learly the last child
that you made, the one born in January was
made probably while you were in a halfway
house. These are simply poor decisions, and
they keep leading to more poor decisions.
These comments, Erving contends, show that the court im-
properly punished him for exercising his fundamental consti-
tutional right to bear and raise children. Erving maintains the
court’s comments “poison the judgment” because they show
that the court relied on a constitutionally impermissible factor
in imposing sentence.
The Supreme Court has long recognized a constitutional
right to familial relations, e.g., Moore v. City of East Cleveland,
431 U.S. 494, 499 (1977), including the right to “establish a
home and bring up children,” Meyer, 262 U.S. at 399. Indeed,

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20 Nos. 23-2828 & 23-2831
we have recognized the right “to bear and raise … children is
the most fundamental of all rights—the foundation of not just
this country, but of all civilization.” Brokaw v. Mercer County,
235 F.3d 1000, 1018 (7th Cir. 2000) (citing Wisconsin v. Yoder,
406 U.S. 205, 232 (1972)).
We reject the idea that courts may penalize defendants for
exercising their fundamental constitutional rights.6 But there
is a world of difference between pointing out the harm that a
defendant inflicts on his family by committing crimes and
punishing a person for choosing to have children in the first
place. When defendants invoke their family responsibilities
as a reason for a lesser sentence, the district court is permitted
to engage with the argument. This may include the district
court reminding the defendant that his actions create hard-
ship for his family, or even, in “truly extraordinary” cases, the
6 The Supreme Court has repeatedly rejected such arguments. E.g., Bor-
denkircher v. Hayes, 434 U.S. 357, 363 (1978) (“To punish a person because
he has done what the law plainly allows him to do is a due process viola-
tion of the most basic sort.”); Mitchell v. United States, 526 U.S. 314, 328–29
(1999) (holding that courts cannot draw adverse inference at sentencing
from a defendant’s choice to exercise his right to remain silent); North Car-
olina v. Pearce, 395 U.S. 711, 725 (1969) (holding that courts cannot increase
a sentence because of a successful appeal), overruled in part on other grounds
by Alabama v. Smith, 490 U.S. 794 (1989). So too have the courts of appeals.
E.g., United States v. Peskin, 527 F.2d 71, 87 (7th Cir. 1975) (“A sentence
which reflects punishment for a defendant’s availing himself of his right
to trial will be set aside.”); United States v. Singletary, 75 F.4th 416, 422 (4th
Cir. 2023) (concluding that an appellate waiver in a plea agreement will
be set aside if “the sentencing court violated a fundamental constitutional
… right” (quoting United States v. Archie, 771 F.3d 217, 223 (4th Cir. 2014));
United States v. Barahona-Montenegro, 565 F.3d 980, 985 (6th Cir. 2009) (re-
versing sentence imposed in part because of “irrelevant factors” like hav-
ing fathered five children out of wedlock).

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Nos. 23-2828 & 23-2831 21
district court identifying family ties as a reason to impose a
lesser sentence. United States v. Reed, 859 F.3d 468, 473 (7th Cir.
2017). But these permissible responses are far afield of incar-
cerating someone because of or based in part on their decision
to bear and raise children.
We do not condone the district court’s insinuation that
Erving’s children are better off without him. Nor do we ap-
prove of the suggestion that Erving’s decision to have chil-
dren was a “poor decision” on par with illegally possessing
weapons.
Even so, we do not think that the district court’s unfortu-
nate comments reflect a decision to punish Erving more
harshly for bearing children. The comments came after the
court had imposed sentence. At that point, the court had al-
ready announced its chosen sentence after it completed its
analysis of the United States Sentencing Guidelines, the 18
U.S.C. § 3553(a) factors, and the parties’ arguments. There is
no indication in the transcript that the court relied on Erving’s
childbearing choices in choosing a sentence or that the com-
ments reveal a previously unannounced sentencing rationale.
See Coe, 992 F.3d at 598 (requiring a showing of reliance on the
impermissible statement); Trujillo-Castillon, 692 F.3d at 579
(same). The court’s “one last comment,” in other words,
strikes us as a poorly worded personal entreaty to Erving, not
an explanation for the court’s sentencing decision.
III. CONCLUSION
For these reasons, we AFFIRM the denial of Erving’s sup-
pression motion and the court’s sentencing decision.

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