United States of America v. Jacob Mikulski

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2680
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JACOB M IKULSKI ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20-CR-00645(1) — John J. Tharp, Jr., Judge.
____________________
A RGUED A PRIL 27, 2022 — DECIDED J UNE 1, 2022
____________________
Before S YKES , Chief Judge, and BRENNAN and S CUDDER ,
Circuit Judges.
PER C URIAM . Jacob Mikulski was involved in a shootout in
a public park. After police questioned him about the incident,
he instructed his mother (with whom he lived) to hide his
gun. He eventually pleaded guilty to unlawful possession of
a firearm in violation of 18 U.S.C. § 922(g), and he was sen-
tenced above the guidelines range to 48 months in prison.
Mikulski appeals his sentence, arguing that the district court

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misapplied a sentencing enhancement for obstruction of jus-
tice based on his efforts to hide the gun. Because the district
judge imposed an appropriate sentence, we affirm.
I.
On a summer afternoon in 2020, Mikulski—a Polish
national residing illegally in the United States—took a gun
loaded with blanks to confront a man who had threatened to
harm him and his friends. Mikulski cornered the man at a
park next to an elementary school in Mount Prospect, Illinois,
northwest of Chicago. The confrontation quickly escalated
into a shootout. Companions came to the aid of the man and
fired live rounds. Mikulski responded with fire of his own,
though he shot only blanks. No one was shot or injured.
One week later, local police arrested Mikulski for driving
on a suspended license. They took him to a police station, and,
because witnesses to the park shootout had identified Mikul-
ski as one of the shooters, they questioned him about the in-
cident. Afterward, Mikulski called his mother from the sta-
tion and told her in Polish to take the bag containing the gun
out of his bedroom and to throw it away in the back of the
apartment complex. Unknown to Mikulski, an officer who
understood Polish overheard the conversation. The officers
searched the Mikulski house. By this time, however, Mikul-
ski’s mother had hidden the gun under a tree behind the
house, so the officers found nothing. The next day they
brought her to the police station for questioning. When
Mikulski saw her, he told her to give up the gun’s location.
She did, and the officers recovered the gun.
Mikulski, who had a prior felony conviction, was charged
in Illinois state court with aggravated discharge of a firearm,

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No. 21-2680 3
see 720 ILCS 5/24-1.2(a). Later, he was federally charged and
pleaded guilty to unlawful possession of a firearm, in viola-
tion of 18 U.S.C. § 922(g)(1).
The presentence investigation report (PSR) set Mikulski’s
base offense level at 14 based on his felon status at the time of
the offense. See U.S.S.G. § 2K2.1(a)(6). With a three-level
reduction for accepting responsibility, see § 3E1.1(a), (b),
offset by a four-level enhancement for committing another
gun offense (the Illinois charge for aggravated discharge),
see § 2K2.1(b)(6)(B), and a two-level enhancement for
obstruction of justice, see § 3C1.1, the PSR tallied a total
offense level of 17 and criminal history category of III,
yielding a guidelines range of 30 to 37 months in prison.
See U.S.S.G. Ch. 5, Pt. A.
At sentencing, Mikulski objected to the enhancement for
obstruction of justice. He argued that when he instructed his
mother to hide the gun, he did not intend to obstruct the in-
vestigation, but only to ensure that she did not get in trouble
for possessing the gun. No search for the gun had begun, he
added, so he could not have obstructed any ongoing investi-
gation. If anything, he suggested, by calling his mother, he
unwittingly tipped off law enforcement to the gun’s presence.
The district judge overruled Mikulski’s objection. The
enhancement was appropriate, the judge ruled, because
Mikulski had tried “to conceal the evidence of a crime.” That
Mikulski’s instruction to his mother preceded law
enforcement’s decision to search the house did “not mean that
[the search] would not have happened … . The entire point of
the instruction to Mr. Mikulski’s mother was so that the gun
would not be found in the house. That anticipates that the
house likely [would be] the subject of a law enforcement

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4 No. 21-2680
search.” Whether Mikulski gave the instruction in order to
conceal evidence of his crime or to avoid implicating his
mother “doesn’t matter … . It’s still obstructive conduct
designed to conceal evidence.” The judge adopted the
remaining calculations in the PSR.
Mikulski was sentenced above the guidelines range to
48 months in prison followed by three years’ supervised re-
lease. Explaining how this sentence was warranted for Mikul-
ski under the 18 U.S.C. § 3553(a) factors, the judge focused on
the circumstances of the offense, specifically the location of
the incident—a park where children were present—and
Mikulski’s escalation of the danger through his shots, even if
they were blanks:
[I]t is beyond comprehension that the public
can’t even use a park next door to a school be-
cause people like Mr. Mikulski are putting them
in danger … . Yes, Mr. Mikulski’s firearm had
blanks in it, and yes, according to the police re-
ports, he didn’t fire the first shot. But … when
he returned fire, that prompted additional firing
from the other side. And the other side wasn’t
using blanks. … [T]he fact that nobody was hit
or injured, the fact that no child was gunned
down in this shootout in a public park is noth-
ing more than blind luck. … Had anyone been
hit by these bullets, the idea that we would be
talking about the sufficiency of 30 to 37 months
would be laughable.
Compounding the seriousness of the offense, the judge
added, was that Mikulski had possessed the gun for more
than a year, he implicated his mother in the crime, and he

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No. 21-2680 5
attempted to hide the gun. The other factors under § 3553(a)
also required an above-guidelines sentence: Mikulski had a
“significant criminal record,” his previous sentences had been
less than two years in duration and “inadequate to deter him
from further criminal activity,” and he posed a recidivism risk
because he lacked a high school diploma or GED. The judge
acknowledged that Mikulski had a one-year-old child but
explained that this relationship warranted only minimal
mitigating weight, given that “concern for his family was not
foremost on his mind when he was deciding” that “it was a
good idea to go participate and initiate a shootout in a public
park.”
II.
On appeal, Mikulski argues that the district judge misap-
plied the obstruction enhancement of U.S.S.G. § 3C1.1. That
guideline authorizes a two-level increase in offense level if the
defendant obstructed “the investigation … of the instant of-
fense.” Mikulski introduces on appeal a new theory as to why
the enhancement should not apply: At the time he told his
mother to hide the gun, he says, no federal investigation into
his felon-in-possession charge had begun; only a state inves-
tigation into his aggravated-discharge offense was underway.
Because his conduct did not impede the investigation “of the
instant offense,” he maintains, it cannot form the basis of an
obstruction enhancement.
Because Mikulski raises this specific argument for the first
time on appeal, we review it for plain error. United States v.
Olano, 507 U.S. 725, 733–34 (1993); United States v. Wyatt, 982
F.3d 1028, 1030 (7th Cir. 2020). So, to prevail on appeal,
Mikulski must show that the district judge committed an
error, which was clear and obvious, affected Mikulski’s

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substantial rights, and seriously disturbed the fairness,
integrity, and reputation of the judicial proceedings. Puckett
v. United States, 556 U.S. 129, 135 (2009); Wyatt, 982 F.3d at
1030.
It was not plain error to apply the enhancement here.
Section 3C1.1 allows a two-level enhancement when “the
defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect
to the investigation … of the instant offense of conviction.”
The Guideline does not distinguish between federal and state
investigations in its application. This lack of distinction
undoubtedly is based on a recognition “that state officers are
authorized to and frequently do investigate criminal conduct
that ultimately is prosecuted under federal law.” United States
v. Alexander, 602 F.3d 639, 642 (5th Cir. 2010) (citing United
States v. Self, 132 F.3d 1039, 1042–43 (4th Cir. 1997)). In other
words, the application of § 3C1.1 turns not on whether federal
officials began the investigation, but whether the
investigation was for the “instant offense.” Id. The
investigation here was for the instant offense of conviction—
possession of a firearm by a felon. The state officials
investigated Mikulski about his involvement in the shootout
at the park, and Mikulski interfered with that investigation
when he directed his mother to hide the gun. See Alexander,
602 F.3d at 642–43 (upholding enhancement for defendant
who sought to obstruct state investigation by directing his
father to hide the firearm that, later, he was federally
convicted of unlawfully possessing).
Mikulski disagrees with this analysis, relying on United
States v. Perez, 50 F.3d 396 (7th Cir. 1995), in which we ruled
that a defendant had not obstructed an investigation into his

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No. 21-2680 7
federal drug-distribution charge when, months before the fil-
ing of that charge, he fled the country to avoid a state prose-
cution for the same criminal offense. Id. at 398–99. Under Pe-
rez, Mikulski argues, his conduct during the state investiga-
tion cannot warrant an obstruction enhancement for his later
federal offense, even if the state investigation related to the
federal offense.
But Perez was based on a version of § 3C1.1 that has since
been revised. See Alexander, 602 F.3d at 642 n.4 (noting that
Perez is an outlier and, in any case, that it relied on a previous
version of the Sentencing Guidelines). The former version
expressly required that the obstructive conduct occur
“during” the investigation of the instant offense. Perez, 50 F.3d
at 398–99. This Guideline was amended in 2006 and no longer
specifies that the conduct take place “during” the
investigation. See U.S.S.G. § 3C1.1 (2018). Indeed, the
commentary to § 3C1.1 clarifies that the enhancement now
applies even if the obstructive conduct “occurred prior to the
start of the investigation … if the conduct was purposefully
calculated, and likely, to thwart the investigation or
prosecution of the offense of conviction.” U.S.S.G. § 3C1.1,
cmt. n.1. We have not had occasion to revisit the holding in
Perez in light of these revisions to § 3C1.1, but we now join
every circuit to have considered the issue and hold that, under
the current version of this provision, the enhancement
“applies when the obstruction of the state investigation is
based on the same facts as the eventual federal conviction,
regardless of whether the federal investigation ha[d]
commenced.” Alexander, 602 F.3d at 642; see also United States
v. Ayers, 416 F.3d 131, 133–35 (2d Cir. 2005) (collecting cases).

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8 No. 21-2680
Mikulski also contends the enhancement does not apply
to him because he did not impede the investigation. He main-
tains, as he did in the district court, that his phone call to his
mother did not obstruct an investigation but in fact tipped off
law enforcement to the presence of the gun.
As the district judge rightly observed, however, an
obstruction enhancement is warranted even when the
offender “attempted” unsuccessfully to hinder the
investigation. U.S.S.G. § 3C1.1; see United States v. Cisneros,
846 F.3d 972, 976 (7th Cir. 2017) (construing § 3C1.1’s
reference to “attempted to obstruct” to “allow[] imposition of
the enhancement whether or not the defendant was successful
in the effort”). That Mikulski’s overheard phone call may
have precipitated the need for the search does not make the
enhancement inapplicable when, as the judge observed, “the
entire point” of his conduct was to conceal evidence. See
U.S.S.G. § 3C1.1, cmt. n.4(D) (listing “directing … another
person to … conceal evidence” as key example of obstructive
conduct).
Finally, Mikulski argues there was insufficient
justification for his above-guidelines sentence. In Mikulski’s
view, the judge’s principal reason for the sentence—his
discharge of the gun—was already reflected in the sentencing
calculations, which included a four-level enhancement for his
aggravated-discharge offense. We conclude that the judge’s
explanation was sufficient. The judge explained that an
above-guidelines sentence was necessary to account for
several § 3553(a) factors:
• The circumstances of the offense—Mikulski
illegally possessed the gun for almost a year,
he shot it in broad daylight at a busy park

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No. 21-2680 9
where children were present, and only
“blind luck” prevented someone from
getting killed;
• Post-offense conduct—Mikulski instructed his
mother to hide evidence, implicating her in
the crime;
• Specific deterrence—Mikulski’s prior sen-
tences, which were less than two years, were
“inadequate to deter him from further crim-
inal activity”;
• General deterrence—individuals who shoot a
gun at a public park should know they will
receive a “meaningful sentence”; and
• Personal characteristics—Mikulski presented
with lack of education, recidivism risk, and
“significant” criminal history.
III.
Mikulski fails to identify an error in his sentence. The sen-
tencing enhancement for obstruction of justice was not mis-
applied, given Mikulski’s efforts to hide the gun for which he
was convicted of unlawfully possessing. And the above-
guidelines sentence was more than adequately justified con-
sidering the sentencing factors of 18 U.S.C. § 3553(a). We
therefore A FFIRM .

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