United States of America v. Donta Baker

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3141
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
D ONTA BAKER ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:20-cr-00768-1 — Steven C. Seeger, Judge.
____________________
A RGUED SEPTEMBER 28, 2022 — D ECIDED J ANUARY 6, 2023
____________________
Before EASTERBROOK , HAMILTON, and BRENNAN, Circuit
Judges.
HAMILTON, Circuit Judge. Appellant Donta Baker was sen-
tenced to 72 months and one day in prison after pleading
guilty to being a felon in possession of a firearm. In trying to
avoid arrest, Baker ran from police officers, took a loaded fire-
arm out of his waistband, and threw it over a fence into a res-
idential backyard. Based on this conduct, the district court
added two offense levels under Sentencing Guideline § 3C1.2

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2 No. 21-3141
for Baker’s having “recklessly created a substantial risk of
death or serious bodily injury to another person in the course
of fleeing from a law enforcement officer.” On appeal, Baker
challenges that guideline finding. We do not reach that issue.
The record makes clear that the district judge would have im-
posed the same sentence even if the two contested guideline
levels had not been added. Accordingly, even if there had
been a guideline error, it would have been harmless. The ac-
tual sentence was also reasonable under the circumstances, so
we affirm.
I. Factual and Procedural Background
Donta Baker pled guilty to being a felon in unlawful pos-
session of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
He faced a statutory maximum sentence of ten years.1 Under
Sentencing Guideline § 2K2.1(a)(6)(A), Baker’s base offense
level was 14. Two levels were added because the gun was sto-
len. § 2K2.1(b)(4)(A). Another two levels were added for ob-
struction of justice because Baker had removed his monitor-
ing device and fled from home arrest before sentencing.
§ 3C1.1. Due to this flight, Baker also did not receive any re-
duction in his offense level for acceptance of responsibility.
The defense agreed that the total offense level was at least 18.
The issue in this appeal is the additional two-level en-
hancement under § 3C1.2, which applies when a defendant
“recklessly created a substantial risk of death or serious bod-
ily injury to another person in the course of fleeing from a law
1 After Baker’s conviction, the statutory maximum for an ordinary
conviction under 18 U.S.C. § 922(g) was raised to fifteen years by the Bi-
partisan Safer Communities Act, Pub. L. No. 117–159, § 12004(c), 136 Stat.
1313, 1329 (2022), amending 18 U.S.C. § 924(a)(8).

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No. 21-3141 3
enforcement officer.” Baker fled from police and—while run-
ning—removed a loaded gun from his waistband and threw
it over a fence into a residential backyard. Baker argued in the
district court that these facts did not show that he had created
a substantial risk of injury. The district court ruled that the
enhancement did apply, bringing Baker’s final offense level to
20.2
Baker had 13 criminal history points, placing him in crim-
inal history category VI. The guideline range for a total of-
fense level of 20 (including the contested two-level enhance-
ment) and criminal history VI was 70 to 87 months. Without
the contested enhancement, the total offense level would have
been 18 and the guideline range would have been 57 to 71
months. The judge imposed a final sentence of 72 months and
one day. In explaining the sentence, the judge focused primar-
ily on Baker’s eleven prior convictions, including three priors
2 Because we affirm Baker’s sentence based on harmlessness and sub-
stantive reasonableness, we do not need to resolve the parties’ debates
about exactly when throwing a gun creates a “substantial risk of injury.”
District judges are in the better position to hear evidence and to decide
when specific facts made conduct more or less dangerous in context or
what counts as a “substantial risk.” We decline to adopt bright-line rules
for § 3C1.2, such as whether throwing a gun that has a drop safety feature
(designed to prevent accidental firing if the gun hits the ground) can ever
create a substantial risk of injury. Compare, e.g., United States v. Mukes,
980 F.3d 526, 538 (6th Cir. 2020) (reversing application where thrown gun
was loaded with chambered round but no evidence showed gun was “ac-
tually cocked”), with United States v. Brown, 31 F.4th 39, 49–50, 49 n.13 (1st
Cir. 2022) (declining to follow Mukes and affirming application where
dropped gun was loaded with rounds in four of its five chambers), and
United States v. Lard, 327 F.3d 551, 554 (7th Cir. 2003) (declining to draw
bright line and affirming application where thrown gun had a round in
chamber and safety was off).

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4 No. 21-3141
for being a felon in possession of a firearm or ammunition.
The judge said, “I noted that you got 72 months before when
you [committed this offense] a third time. You need to get at
least 72 months this time given your history. I need to deter
you from committing this crime again. I need to deter others
not to do it again. So that’s how I reach 72 months and one
day.”
II. Analysis
To determine a federal sentence, the district court must
first calculate the correct advisory sentencing range under the
Sentencing Guidelines. See 18 U.S.C. § 3553(a)(4); Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1904 (2018); Gall v.
United States, 552 U.S. 38, 49 (2007). The court must also weigh
the factors listed in 18 U.S.C. § 3553(a) in choosing a sentence
and may apply those factors to impose a sentence outside the
advisory guideline range. Gall, 552 U.S. at 49–50.
In many cases, the record will show that the guideline
range played a central role in sentencing. For instance, a judge
might explain that the § 3553(a) factors support leniency and
then impose a sentence at the bottom of the guideline range.
If that range was miscalculated and the correct range should
have been lower, it is possible that the judge would have sen-
tenced at the bottom of that proper, lower range. When it is
clear from the record that the guideline range played such a
central role in shaping a sentence, a guideline calculation er-
ror will ordinarily lead to a remand for resentencing.
In other cases, and this is one, the record shows that the
guideline range did not play such a central role and that the
sentence imposed would not have differed even if the guide-
line range had been lower or higher. We may affirm a sentence

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No. 21-3141 5
regardless of a guideline error when the error was harmless
and the sentence imposed would have been substantively rea-
sonable even under the guideline level argued for on appeal.
E.g., United States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009).
Abbas explained that harmlessness and reasonableness are
two distinct questions. We consider them in turn.
A. Harmlessness
A guideline error can be harmless if we can tell from the
record that on remand, considering the different and arguably
proper guideline level, the judge would impose the same sen-
tence. United States v. Asbury, 27 F.4th 576, 582 (7th Cir. 2022),
quoting United States v. Jett, 982 F.3d 1072, 1078 (7th Cir. 2020);
see also United States v. Glosser, 623 F.3d 413, 419–20 (7th Cir.
2010) (collecting Seventh Circuit cases declining to find guide-
line errors harmless). The judge made that point unmistaka-
bly clear during Baker’s sentencing hearing.
We have been reluctant to treat guideline errors as harm-
less when the judge seems to have offered only “a conclusory
comment tossed in for good measure.” Abbas, 560 F.3d at 667;
see also, e.g., United States v. Bravo, 26 F.4th 387, 397, 401 (7th
Cir. 2022) (remanding for resentencing even though judge
said he would have imposed same sentence without two ad-
ditional criminal history points). We must be able to deter-
mine from the judge’s explanation why the disputed issue
would not have mattered. At the same time, we have often
said that a sentencing judge “need not belabor the obvious.”
E.g., United States v. Jordan, 991 F.3d 818, 822 (7th Cir. 2021),
quoting United States v. Sainz, 827 F.3d 602, 608 (7th Cir. 2016);
United States v. Castaldi, 743 F.3d 589, 591 (7th Cir. 2012).

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6 No. 21-3141
The judge’s statement here was anything but conclusory.
Immediately after announcing his sentence, the judge noted
Baker’s challenge to the two-level enhancement for reckless
endangerment. He said: “I would have imposed a sentence of
72 months and one day even if I found that the reckless en-
dangerment enhancement did not apply. It would have made
no difference to my sentence.” The judge then explained his
thinking. Baker had previously been sentenced to 72 months
for the same offense of being a felon in possession of a firearm
or ammunition, yet he had committed the offense again. The
judge rooted his sentencing decision in deterrence.
The judge closely examined Baker’s criminal history and
was understandably “concerned” that Baker had eleven prior
convictions. He considered that Baker had “committed a lot
of serious offenses for a long time … [Baker had] engaged in
criminal conduct on and off … for 25 years, a quarter cen-
tury.” The judge focused on the “especially troubling” fact
that Baker had three prior convictions for the offense at issue:
being a felon in possession. Baker was sentenced to 72 months
for his third conviction “and apparently it was not a sufficient
deterrent because he did it a fourth time.” The judge told
Baker that “you need to get at least 72 months this time given
your history.” The judge explained to Baker that “I need to
deter you from committing this crime again. I need to deter
others not to do it again. So that’s how I reach 72 months and
one day.” We can understand easily from these comments
why the contested guideline issue did not affect the final sen-
tence.
B. Substantive Reasonableness
We review the substantive reasonableness of a sentence
for abuse of discretion. Gall, 552 U.S. at 51. A sentence is

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No. 21-3141 7
substantively reasonable if the judge reached it by giving
“meaningful consideration to the factors enumerated in 18
U.S.C. § 3553(a), including the advisory Sentencing Guide-
lines” and applying those factors to the “individual circum-
stances of the case.” United States v. Major, 33 F.4th 370, 379
(7th Cir. 2022), quoting United States v. Patel, 921 F.3d 663, 672
(7th Cir. 2019). We typically begin our analysis of substantive
reasonableness by determining the correct guideline range.
See, e.g., Abbas, 560 F.3d at 667 (phrasing the issue of substan-
tive reasonableness based on the “appropriate guideline
range”). Here, we will assume without deciding that the cor-
rect guideline total offense level was not 20 but 18, as advo-
cated by Baker, which carries a guideline range of 57 to 71
months in criminal history category VI. Baker was sentenced
to 72 months and one day.
A district court must explain how it reached its sentence
considering the factors set forth in 18 U.S.C. § 3553(a). This
explanation must be sufficient “to allow for meaningful ap-
pellate review.” Gall, 552 U.S. at 50. When the sentence falls
outside the advisory guideline range, the explanation must be
compelling enough to justify the variance, and larger vari-
ances call for more thorough justifications than smaller ones.
Id.; United States v. Vasquez-Abarca, 946 F.3d 990, 994 (7th Cir.
2020) (affirming above-guideline sentence that was margin-
ally higher than defendant’s prior sentence for same crime
and was intended to achieve deterrence).
Here, the sentence was one month and one day above the
top of the advisory sentencing range that Baker contends
should apply. The judge explained the sentence in terms of
§ 3553(a). First, the judge considered the “nature and circum-
stances of the offense,” § 3553(a)(1), noting that Baker created

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8 No. 21-3141
a “dangerous situation” by bringing a loaded firearm onto the
streets of Chicago in the middle of the night while drunk, as
well as throwing that loaded firearm over a fence into an un-
known person’s yard.
Second, the judge considered “the history and characteris-
tics of the defendant,” § 3553(a)(1), noting Baker’s criminal
history with eleven prior convictions and accepting as a miti-
gating factor the point raised by Baker’s counsel that those
convictions did not involve “violent behavior.” But the judge
also noted Baker’s decade-long gang affiliation and was espe-
cially troubled by the fact that after this arrest, Baker removed
his monitor and fled home confinement, telling pretrial ser-
vices that he was “going to enjoy the sunshine” and that his
flight would end in his being either “arrested or killed.” The
judge said that this conduct created “a very dangerous situa-
tion” and showed Baker’s recent disrespect for probation of-
ficers and court orders.
Third, the judge explained how the chosen sentence aimed
to achieve “adequate deterrence,” § 3553(a)(2)(B), given that
this was Baker’s fourth conviction for being a felon in posses-
sion of a firearm or ammunition. Baker’s history with this re-
peated behavior factored heavily into the sentencing decision.
The judge imposed a sentence one day longer than that im-
posed for Baker’s third conviction for the same crime. A dis-
trict court acts “well within its discretion in concluding that
[a defendant] could best be deterred by serving a longer sen-
tence than he received the last time he committed the same
offense.” United States v. Sanchez-Lopez, 858 F.3d 1064, 1068
(7th Cir. 2017); see also Vasquez-Abarca, 946 F.3d at 995 (affirm-
ing above-guideline sentence higher than prior sentence for
same crime).

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No. 21-3141 9
At oral argument, Baker argued for the first time that reli-
ance on the length of his most recent state-court sentence was
improper because he had received parole in that case. Under
Baker’s theory, that prior sentence was effectively shorter and
therefore not a proper comparator for the district court judge
to use in his sentencing.
This new argument is not persuasive. The judge made
clear that he was aware of how much time Baker had actually
spent in custody on his prior sentences. He noted the specifics
of Baker’s prior convictions, saying that Baker’s first convic-
tion for being a felon in possession of a firearm was in 2007
and that he was sentenced to “three years” but was “incarcer-
ated for only a year, and [was] paroled, but [was] readmitted
the following year.” Baker was again convicted of this offense
in 2009 and received a “four-year sentence” but served “only
about a year and a half.” In 2012, Baker was convicted of being
a felon in possession of ammunition. (A companion charge of
possessing a firearm was dismissed.) He was sentenced to “six
years” but “served about two and a half years” before being
paroled. The judge considered the prior sentences, the actual
amounts of time served, the violation of parole, and Baker’s
repeated offenses to conclude that “a six-year sentence did not
deter you from doing it again.”
The judge was entitled to conduct this inquiry into Baker’s
criminal history and convictions for similar prior charges and
to impose a sentence tailored to Baker’s own record. The dis-
trict judge was not obliged to discount his treatment of state
sentences based on the possibility of parole, and Baker was
not entitled to a lower sentence on this, his fourth felon-in-
possession conviction.
The judgment of the district court is AFFIRMED.

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