                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 06-3190
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                  v.

JULIO RICE,
                                               Defendant-Appellant.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 03 CR 484—Robert W. Gettleman, Judge.
                          ____________
     ARGUED SEPTEMBER 20, 2007—DECIDED APRIL 1, 2008
                          ____________


  Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. We have rejected many chal-
lenges surrounding the felon-in-possession statute’s
interstate commerce requirement, and in this case we
reject one more. The statute, 18 U.S.C. § 922(g)(1), requires
that the government prove, among other things, that a
defendant’s possession of a firearm was “in or affecting
commerce.” Complicating matters somewhat, the indict-
ment in this case charged instead that Rice’s possession
was “in and affecting commerce.” (We have added the
emphasis.) Seizing on this language, Rice maintains that
the government needed, and failed, to prove that his
possession of firearms was “in commerce.” Because the
2                                              No. 06-3190

statute only requires proof that the firearms had moved
across state lines at some point before the defendant’s
possession, a threshold indisputably satisfied here, we
conclude that the requisite tie to interstate commerce
has been satisfied. Rice’s other challenges to his convic-
tions and sentence are similarly without merit. Therefore,
as we explain more fully below, we affirm the judgment
of the district court.


                   I. BACKGROUND
   Julio Rice was charged in a five-count superseding
indictment with: (1) unlawful possession of a firearm by
a felon; (2) possession of a firearm having a removed,
altered or obliterated serial number; (3) possession with
intent to distribute a controlled substance; (4) possession
of a firearm in furtherance of a drug trafficking crime;
and (5) unlawful possession of a firearm by a felon. The
first four counts concerned conduct that allegedly oc-
curred on October 29, 2002. Count 5 charged that Rice
possessed a firearm on January 12, 2003.
  At the first trial, a jury convicted Rice of the conduct
charged in Counts 1 and 2. The jury was unable to reach a
verdict as to Counts 3, 4, and 5, and the district court
declared a mistrial. The government then re-tried Rice
on Counts 3, 4, and 5, and the second jury returned a
guilty verdict on those counts.
  Two separate incidents led to Rice’s convictions. On
October 29, 2002, two officers stopped the car in which
Rice was riding. He left the car holding a handgun in one
hand and a blue laundry bag in the other and ran into the
building where he resided with his then-girlfriend. Inside
the building, he threw the bag up the stairs and attempted
to close the door behind him, but the two officers pushed
No. 06-3190                                                3

it open. The officers restrained Rice and found the blue
laundry bag with a handgun next to it. The bag con-
tained two additional handguns (including an Intratec Tec-
DC9 semiautomatic handgun with an obliterated serial
number), an empty safe, and three bags with a total of
approximately two-and-a-half pounds of marijuana. The
marijuana was divided into two one-pound bags and
one half-pound bag. The officers found no other contra-
band.
  Rice testified at trial and admitted that he had pur-
chased the marijuana shortly before his arrest on Octo-
ber 29, 2002. He also admitted that he possessed the
three firearms seized by officers that day. He further
testified, however, that he did not intend to sell the mari-
juana and that he needed the handguns to protect himself
from other gang members.
  Other officers testified that on January 12, 2003, they
saw the passenger in a Buick, later identified as Rice, toss
a black object out the car window. One testified that
he immediately recognized the object as a gun, heard a
metallic “clink” as it hit the ground, and yelled out, “gun.”
The officers arrested Rice and found a loaded Bryco
semiautomatic handgun about two to five feet away
from the passenger side of the car.
  On August 9, 2006, the district court sentenced Rice to
360 months’ imprisonment. He now appeals, raising
multiple challenges to his convictions and sentence.


                      II. ANALYSIS
A. Interstate Commerce and § 922(g)(1)
  Rice’s principal challenge on appeal is to his convic-
tions for unlawful possession of a firearm by a felon in
4                                                 No. 06-3190

violation of 18 U.S.C. § 922(g)(1). He maintains that the
government failed to prove that he possessed any fire-
arms “in commerce” and that his two § 922(g)(1) convic-
tions cannot stand as a result. This challenge is not one
to our subject matter jurisdiction, but is rather an argu-
ment that the government failed to prove all the elements
necessary to sustain the § 922(g)(1) convictions. See United
States v. Wallace, 280 F.3d 781, 784 (7th Cir. 2002).
   Section 922(g)(1) provides in relevant part that a felon
may not ”. . . possess in or affecting commerce, any fire-
arm or ammunition . . . .” The Supreme Court explained
in Scarborough v. United States, 431 U.S. 563 (1977), that the
phrase “in commerce or affecting commerce” in the
predecessor to § 922(g)(1) indicated a desire to impose “no
more than a minimal nexus requirement” on the possession
prong of the statute. Id. at 577. Following Scarborough,
we have held on numerous occasions that as long as a
firearm moved across state lines at some point prior to
the defendant’s possession of it, the possession satisfies
§ 922(g)(1)’s “in or affecting commerce” requirement.
See, e.g., United States v. Williams, 410 F.3d 397, 400 (7th
Cir. 2005); United States v. Bass, 325 F.3d 847, 849 (7th Cir.
2003); United States. v. Bell, 70 F.3d 495, 498 (7th Cir. 1995);
cf. United States v. Skoczen, 405 F.3d 537, 541 (7th Cir. 2005)
(recognizing that conspiring to receive or possess stolen
goods that were in interstate commerce in violation of
18 U.S.C. § 659 requires proof that the goods were in
interstate commerce). In this case, the firearms at issue
had all been manufactured outside of Illinois. In some
instances years after the firearms first entered Illinois,
Rice possessed them inside the state. This evidence was
all the government needed to demonstrate that Rice
possessed the firearms “in or affecting commerce.”
No. 06-3190                                                5

  This case presents a slight wrinkle, however. Although
the statute speaks in the disjunctive, providing that a felon
may not “possess in or affecting commerce” (emphasis
added) any firearm, the indictment does not. Rather,
Counts 1 and 5 in the indictment charged that Rice pos-
sessed the firearms “in and affecting commerce in that the
firearms had traveled in interstate commerce prior to the
defendant’s possession of the firearms . . .” (emphasis
added). The counts also detailed the make, model, and
serial number of the guns Rice allegedly possessed (with
the exception of one gun that the indictment alleged had
an obliterated or altered serial number), along with the
alleged dates of possession.
  Rice maintains that the government’s use of “and”
instead of “or” in the indictment matters. He does not
dispute that his firearms possession was “affecting com-
merce.” But because the indictment uses the word “and,”
Rice contends that his convictions under § 922(g)(1) can
only stand if the firearms he possessed were “in com-
merce” at the time of his arrest. And, he maintains, they
were not in commerce at the time.
   Where the difference would lie between possessing a
firearm “in commerce” and possessing a firearm “affecting
commerce” for purposes of § 922(g)(1) is less than clear.
It is true that the Supreme Court has recognized a dis-
tinction between the phrases “in commerce” and “affecting
commerce.” See Circuit City Stores, Inc. v. Adams, 532 U.S.
105, 115 (2001) (interpreting the Federal Arbitration Act
and stating that words “involving” and “affecting” signal
Congress’s intent to exercise its commerce power to its
fullest extent, while “the general words ‘in commerce’ and
the specific phrase ‘engaged in commerce’ are understood
to have a more limited reach”). In Scarborough itself, the
6                                                  No. 06-3190

Court quoted one of its prior decisions to say that “Con-
gress is aware of the ‘distinction between legislation
limited to activities “in commerce,” and an assertion of its
full Commerce Clause power so as to cover all activity
substantially affecting interstate commerce.’ ” 431 U.S. at
571 (quoting United States v. Am. Bldg. Maint. Indus., 422
U.S. 271, 280 (1975)). And, interpreting the felon-in-posses-
sion prohibition before it, the Court said it seemed “appar-
ent that . . . by prohibiting both possessions in commerce
and those affecting commerce, Congress must have
meant more than to outlaw simply those possessions that
occur in commerce or in interstate facilities.” Id.
   Drawing from these cases, Rice maintains that a dis-
tinction lies between possessing a firearm “in commerce”
and firearms possession that merely “affects” commerce. A
firearm cannot remain “in commerce” indefinitely, he
contends. And because at least some of the firearms he
possessed had entered Illinois years earlier, he main-
tains they were not “in commerce” at the time he possessed
them. At some point, according to Rice, a firearm is no
longer “in commerce,” though he posits that a firearm
can remain in commerce for some reasonable period of
time after it enters the state and before it is acquired by
a felon. It is unclear how Rice would have us measure
that reasonable period of time, however, and we have
recognized before that in the § 922(g)(1) context, “it
would be difficult, if not impossible, to attempt to draw
practical distinctions between the possession of firearms
which have moved in interstate commerce recently, and the
possession of firearms whose travels are distant in time.”
United States v. Lewis, 100 F.3d 49, 52 (7th Cir. 1996); see also
Am. Bldg. Maint. Indus., 422 U.S. at 277 (“The phrase ‘in
commerce’ does not, of course, necessarily have a uni-
form meaning whenever used by Congress.”).
No. 06-3190                                                  7

  We need not press further on this issue today. The
statute itself is written in the disjunctive, and it does not
require proof of the conjunctive. See 18 U.S.C. § 922(g)(1).
When a statute lists alternate means of violation, the
“general rule is that when a jury returns a guilty verdict
on an indictment charging several acts in the con-
junctive . . . the verdict stands if the evidence is sufficient
with respect to any of the acts charged.” United States v.
Durman, 30 F.3d 803, 810 (7th Cir. 1994) (citing United States
v. Cusumano, 30 F.3d 803, 810 (3d Cir. 1991) (citing Turner
v. United States, 396 U.S. 398, 420 (1970))); see also United
States v. James, 464 F.3d 699, 706 (7th Cir. 2006); United
States v. Jones, 418 F.3d 726, 729-30 (7th Cir. 2005); United
States v. Bond, 231 F.3d 1075, 1078 (7th Cir. 2000). “This
rule extends to a trial court’s jury instructions in the
disjunctive in the context of a conjunctively worded
indictment.” Durman, 30 F.3d at 810. Although the in-
dictment charged that Rice possessed firearms “in and
affecting commerce,” the jury instruction did not use
the conjunctive. Rather, the jury was told that convic-
tions on the unlawful possession counts required it to
find “that the firearm possessed by the defendant had
traveled in interstate commerce prior to the defendant’s
possession of it on that date.” In other words, although the
indictment charged that Rice possessed firearms in and
affecting commerce, the jury was told it only needed to
find that Rice’s firearms possession fell within the broad
reach of the statute’s “in or affecting commerce” language
in order to return guilty verdicts on the § 922(g)(1) counts.
Rice acknowledges that his possession of the firearms
“affect[ed] commerce” in that the firearms had traveled
in interstate commerce at some earlier point. That is all
the statute requires, and § 922(g)(1)’s interstate com-
merce requirement was satisfied in this case.
8                                                 No. 06-3190

  For the same reasons, the district court did not err
when it declined to give the jury an instruction that
Rice proposed stating in part: “the interstate commerce
movement of a firearm does not necessarily cease when
the firearm enters into another state. But, a firearm [sic]
character of being a part of interstate commerce does not
continue indefinitely after its transportation ends.” The
proposed instruction did not accurately recite the law,
so there was no error in refusing to give it. See United States
v. Al-Shahin, 474 F.3d 941, 947 (7th Cir. 2007).


B. Motion to Sever and Sufficiency Challenges
   Rice’s other challenges to his convictions also lack merit.
First, the district court did not abuse its discretion when
it denied Rice’s motion to sever Count 5 from the other
counts. See United States v. Rollins, 301 F.3d 511, 517
(7th Cir. 2002) (denial of motion to sever reviewed for
abuse of discretion). That count charged him with unlawful
possession of a firearm on January 12, 2003, and Rice
denied possessing the firearm charged in Count 5. Counts
1 through 4, in contrast, charged Rice with conduct only
on October 29, 2002, and he admitted that he possessed
the firearms charged in those counts.
   A court may order separate trials on separate counts if
the joinder of offenses in an indictment appears to preju-
dice the defendant. Fed. R. Crim. P. 14(a). A district court
abuses its discretion in declining to order separate trials
only when the defendant shows that the denial of the
severance prevented him from receiving a fair trial. United
States v. Quilling, 261 F.3d 707, 715 (7th Cir. 2001). In this
regard, simply showing that separate trials may have
given the defendant a better chance of acquittal is insuf-
ficient. Id.
No. 06-3190                                                   9

   Our decision in United States v. Coleman, 22 F.3d 126 (7th
Cir. 1994), is instructive. There, we concluded that the
district court did not abuse its discretion when it denied
the defendant’s motion to sever counts charging that
he unlawfully possessed firearms, on different days, in
violation of § 922(g)(1). Id. at 135. As it is here, the central
issue in the case was whether the defendant possessed the
firearms on the charged dates. The evidence as to
each count was relatively “short and simple,” and the
district court instructed the jury to consider each count
separately. See id. The district court did not abuse its
discretion when it denied the motion to sever.
  In addition, there was sufficient evidence to convict
Rice on each count. First, we uphold his conviction for
knowingly possessing a firearm with an obliterated
serial number in violation of 18 U.S.C. § 922(k). The serial
number that would have been found on the firearm’s
receiver had been obliterated, Rice cleaned his guns
regularly, and Rice said it was important to ensure that
any gun he carried was “clean,” meaning that no crimes
had been committed with it. From this evidence, the
jury could have found that he knew the serial number
on his Intratec Tec-DC9 was obliterated.
  Next, the jury had sufficient evidence to find Rice guilty
of possessing marijuana with the intent to distribute it. See
21 U.S.C. § 841(a)(1). It could have credited Lieutenant
Robert Coleman’s testimony that the two one-pound and
one half-pound bags of marijuana Rice had in his bag
with guns and a safe were distribution-level quantities,
as well as Rice’s girlfriend’s testimony that she was not
aware of him storing such quantities of marijuana in her
apartment where he lived. The jury also heard Officer
Pablo Vasquez’s testimony that it is not common to
10                                                No. 06-3190

find scales or baggies with such quantities of marijuana
because larger-level dealers generally do not break down
marijuana into user quantities. The jury also could have
disbelieved Rice’s testimony that of the $4000 he had to
his name in the three months after his release from jail,
he spent $1500 of it on marijuana that was only for his
personal use or to give to friends and hair cutting cus-
tomers. Cf. 21 U.S.C. § 841(b)(1)(D)(4) (directing that
“distributing a small amount of marihuana for no remu-
neration” is to be treated as possession offense). Although
a jury could have believed Rice, and the first jury may
have, the jury that convicted him was not unjustified in
finding that he intended to sell the marijuana. Compare
United States v. Cormier, 468 F.3d 63, 71 (1st Cir. 2006)
(finding sufficient evidence that defendant intended to
distribute marijuana and stating, “[t]he quantity of mari-
juana retained by [the defendant]—at least two pounds—
although not dispositive, at least suggests that it may not
have been intended only for personal use”) and United
States v. Binkley, 903 F.2d 1130, 1133 (7th Cir. 1990) (uphold-
ing conviction for conspiring to sell marijuana where
defendant maintained three-fourths of a pound of mari-
juana he had purchased was for his personal use) with
United States v. Rein, 848 F.2d 777, 784 (7th Cir. 1988)
(noting that jury found defendant who tried to buy five
pounds of marijuana guilty of attempting to possess
marijuana, but not attempting to possess marijuana
with the intent to distribute it).
   Sufficient evidence also existed to find Rice guilty of
carrying a firearm during and in relation to a drug traf-
ficking crime on October 29, 2002, in violation of 18 U.S.C.
§ 924(c). Rice admitted that he loaded three guns before
he left his sister’s home that night, placed a loaded Glock
No. 06-3190                                              11

in his waistband before he went inside a restaurant, bought
$1500 worth of marijuana at the restaurant, and then
carried guns in a bag with the marijuana. The jury also
heard Lieutenant Coleman’s testimony that drug dealers
often carry weapons for protection. The jury heard enough
to convict on this count as well.
  Finally, there was sufficient evidence to conclude that
Rice possessed the gun that officers recovered a few
feet from the car in which he had been riding on Janu-
ary 12, 2003. Two officers testified that they saw the
passenger, later identified as Rice, in a car they had
stopped toss a black object out of the car as the officers
walked toward the car, and one immediately identified it
as a gun. Both officers also testified that they heard a
metallic sound as the object landed on the ground and
that they saw the driver’s hands on the steering wheel at
that time. The jurors were entitled to believe the officers’
testimony and to discredit the inconsistent testimony
from Rice and Robert Favela, the car’s driver. Rice testi-
fied that Favela threw the gun out the window, while
Favela testified that neither he nor Rice had thrown a
gun out of the car. Moreover, the jurors heard a tape-
recorded conversation in which Favela asked Rice,
“What . . . do you want me to tell them?” followed by
Rice’s answer that Favela should say that Rice did not
have a gun and that the officers found it on the street. The
jurors had ample reason not to believe Rice’s story at
trial, and sufficient evidence existed to convict him of
possession of a firearm on January 12, 2003.


C. Sentencing Challenges
  Rice raises several challenges to his sentence. In our
review of his sentence, we first consider whether the
12                                                    No. 06-3190

district court committed any procedural error. See Gall v.
United States, 128 S. Ct. 586, 598 (2007). If there was no
procedural error, we then analyze the substantive rea-
sonableness of the sentence using an abuse of discretion
standard. Id.


    1. Base Offense Level
  We begin with Rice’s argument that the district court
erroneously set his base offense level at 26. When Rice
was sentenced in August 2006, U.S.S.G. § 2K2.1(a)(1)
provided that if the offense involved a firearm described
in 18 U.S.C. § 921(a)(30) (and other conditions were met),
the base offense level was 26. One of the firearms Rice
possessed on October 29, 2002 was an Intratec Tec-DC9.
  Although § 921(a)(30) included the Intratec Tec-DC9 on
the day Rice allegedly possessed a firearm of that model,
§ 921(a)(30) was repealed effective September 14, 2004. Rice
argues that because § 921(a)(30) expired prior to his trial
and sentencing, and U.S.S.G. § 2K2.1(a) depends on
§ 921(a)(30), then § 2K2.1(a)(1) of the Guidelines had no
meaning at the time he was sentenced.1 Our decision in
United States v. Simmons, 485 F.3d 951 (7th Cir. 2007),
however, forecloses this argument. In that case, we fol-
lowed the lead of the Second and Tenth Circuits and
concluded that even though § 921(a)(30) had been re-
pealed, the Sentencing Commission intended that courts
determine for purposes of § 2K2.1(a) whether the fire-


1
   The November 2006 version of the Guidelines removed the
reference to 18 U.S.C. § 922(a)(30). Instead, U.S.S.G. § 2K2.1(a)(1)
now references semiautomatic firearms capable of accepting
a large capacity magazine.
No. 06-3190                                                 13

arm used by a defendant qualified as a “semiautomatic
assault weapon” under § 921(a)(30) at the time of the
crime. Id. at 953-54 (citing United States v. Roberts, 442 F.3d
128, 129 (2d Cir. 2006); United States v. Whitehead, 425 F.3d
870, 871-72 (10th Cir. 2005)). As did the defendant in
Simmons, Rice possessed the firearms while § 921(a)(30)
was still in effect. Rice does not dispute that the Intratec
Tec-DC9 met the requirements for a “semiautomatic
assault weapon,” and setting his base offense level at 26
was not erroneous.


  2. Career Offender Status
  The district court also committed no error when it
concluded that Rice was a “career offender” under U.S.S.G.
§ 4B1.1(a). Under that provision, a defendant is a career
offender if he is at least eighteen years old at the time of
the instant offense, the instant offense involved a con-
trolled substance, and the defendant had two prior
felony convictions for either a crime of violence or a
controlled substance offense. The only issue in this case
is whether Rice’s previous Illinois felony conviction for
aggravated discharge of a firearm was for a “crime of
violence.” To be a “crime of violence,” the conviction first
must be one that is punishable by a term of imprisonment
of more than one year, U.S.S.G. § 4B1.2(a); there is no
dispute that this requirement is met here. Next, the offense
must be one that either: (1) “has as an element the use,
attempted use, or threatened use of physical force against
the person of another,” or (2) “is burglary of a dwelling,
arson, or extortion, involves use of explosives, or other-
wise involves conduct that presents a serious potential
risk of physical injury to another.” See id.
14                                                No. 06-3190

  When determining whether a prior conviction was for
a “crime of violence,” we “start—and usually will end—
with the elements of the statute of conviction and the facts
as stated in the charging document.” United States v.
Newbern, 479 F.3d 506, 508 (7th Cir. 2007); see also Shepard v.
United States, 544 U.S. 13, 26 (2005) (applying Armed
Career Criminal Act). Here, the conviction at issue was
for aggravated discharge of a firearm in violation of 720
ILCS 5/24-1.2(a)(2). That provision makes it unlawful to
knowingly and intentionally “[d]ischarge[ ] a firearm in
the direction of another person or in the direction of a
vehicle he or she knows or reasonably should know to
be occupied by a person.” Consistent with that provision,
the charging document alleged that Rice knowingly
discharged a firearm in the direction of another person
and that he knowingly discharged a firearm in the direc-
tion of a motor vehicle he knew to be occupied by another
person.
  Our decision in Quezada-Luna v. Gonzales, 439 F.3d 403
(7th Cir. 2006), guides us here. In that case, we had no
trouble concluding that the Bureau of Immigration Appeals
reasonably found that “[d]ischarg[ing] a firearm at or
into a building he or she knows or reasonably should
know to be occupied” under 720 ILCS 5/24-1.2(a)(1) was a
“crime of violence” under 18 U.S.C. §§ 16(a) and (b).
Substitute “vehicle” for “building” and the result is essen-
tially the provision at issue in Rice’s Illinois case. In
addition, the definition of “crime of violence” in 18 U.S.C.
§ 16 nearly mirrors that in U.S.S.G. § 4B1.2(a), although
the former requires that the conduct present a “sub-
stantial” risk of physical injury, while the latter requires
only a “serious potential risk” of physical injury to another.
We concluded in Quezada-Luna that discharging a fire-
No. 06-3190                                                      15

arm into a building one reasonably should know to be
occupied both presented a substantial risk of physical
injury to another, and, consistent with the “common-sense
notion that firing a gun is a use of physical force,” that
it had as an element the “use, attempted use, or threatened
use of physical force against the person or property of
another.” 439 F.3d at 406. That logic applies with equal
force here.
   Rice points to United States v. Jaimes-Jaimes, 406 F.3d
845 (7th Cir. 2005), but that case does not help him. There,
we held that a Wisconsin conviction for “discharging a
firearm into a vehicle or building” did not support a
crime of violence enhancement under U.S.S.G. § 2L1.22
because the Wisconsin statute made it a crime even where
a person only should have realized that there might be a
person inside the vehicle or building. As a result, we
concluded that the statute did not require as an element
the use, attempted use, or threatened use of physical
force against another, and the conviction was not for a
crime of violence. Id. at 851. In Rice’s Illinois case, in
contrast, the statute required proof that the defendant
know or should reasonably know that another person occupied


2
    Under U.S.S.G. § 2L1.2,
      “Crime of violence” means any of the following: mur-
      der, manslaughter, kidnapping, aggravated assault,
      forcible sex offenses, statutory rape, sexual abuse of a
      minor, robbery, arson, extortion, extortionate extension
      of credit, burglary of a dwelling, or any offense under
      federal, state, or local law that has as an element the
      use, attempted use, or threatened use of physical
      force against the person of another.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
16                                             No. 06-3190

the vehicle. The charging document imposed an even
higher standard, as it charged that Rice knew the vehicle
was occupied. Discharging a firearm in the direction of
another person or of a vehicle one reasonably should
know to be occupied carries with it “a serious potential
risk of physical injury to another” which is all that is
required to constitute a crime of violence under § 4B1.2(a).
Cf. United States v. Hernandez-Rodriguez, 467 F.3d 492,
495 (5th Cir. 2006).


  3. Reasonableness
  We have considered the other allegations of procedural
sentencing error Rice raised in his briefs. Finding no merit
in them as well, we turn to his argument that his 360-
month sentence is unreasonable. Rice’s advisory Guide-
lines range was 360 months to life. He maintains that he
should receive a lower sentence pursuant to U.S.S.G.
§ 5K2.13, which provides that a below-Guidelines sen-
tence may be warranted if a defendant committed the
offense while suffering from a “significantly reduced
mental capacity.” Although “[t]he concept of departures
has been rendered obsolete in post-Booker sentencing”,
“the district court may apply those departure guidelines
by way of analogy” when analyzing the factors in 18 U.S.C.
§ 3553(a). United States v. Miranda, 505 F.3d 785, 792
(7th Cir. 2007).
  A “significantly reduced mental capacity” means a
significantly impaired ability to either “(A) understand
the wrongfulness of the behavior comprising the convic-
tion or to exercise the power of reason; or (B) control
behavior that the defendant knows is wrongful.” U.S.S.G.
§ 5K2.13 cmt. n.1; see also United States v. Roach, 296 F.3d
No. 06-3190                                               17

565, 568 (7th Cir. 2002). At sentencing, the district court
recognized that Rice had psychological problems (he had
been diagnosed with adjustment disorder with depressed
mood and personality disorder) but concluded that they
did not rise to the level of a significantly reduced mental
capacity, nor did they warrant a below-Guidelines sen-
tence. The only medical report referenced in the record
concluded that Rice did not exhibit symptoms of a
severe mental disease or defect, and we find no error in
the district court’s conclusion that Rice sufficiently under-
stood the wrongfulness of his behavior and that his
psychological issues did not warrant a below-Guidelines
sentence. The district court also considered the factors
listed in 18 U.S.C. § 3553(a) when it considered which
sentence to impose, and we do not find that any other
factor warrants a conclusion that the sentence was unrea-
sonable. As a result, we conclude that the district court
did not abuse its discretion in imposing the sentence it did.


                   III. CONCLUSION
  Rice’s convictions and sentence are AFFIRMED.




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