                              UNPUBLISHED ORDER
                           Not to be cited per Circuit Rule 53




            United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                              Argued November 29, 2005
                              Decided January 10, 2006


                                         Before

                           Hon. DANIEL A. MANION, Circuit Judge

                           Hon. ANN CLAIRE WILLIAMS, Circuit Judge

                           Hon. DIANE S. SYKES, Circuit Judge


No. 05-1019                                        Appeal from the United States
                                                   District Court for the Eastern
UNITED STATES OF AMERICA,                          District of Wisconsin
              Plaintiff-Appellee,
                                                   No. 04 CR 63
      v.
                                                   Charles N. Clevert, Jr., Judge.
DEMETRIS SIMMONS,
            Defendant-Appellant.



                                       ORDER

       A jury in the Eastern District of Wisconsin convicted Demetris Simmons on
one count of willfully dealing in firearms without a license, in violation of 18 U.S.C.
§ 922 (a)(1)(A) and (a)(2). The district court imposed a sentence of 56 months’
imprisonment. We affirm the conviction, but vacate the sentence and remand for
further proceedings in light of United States v. Booker, 125 S.Ct. 738 (2005).
No. 05-1019                                                                      Page 2



                                           I.

       After receiving several tips of illegal activity, Special Agent Paul Harding of
the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the “ATF”) began
investigating Demetris Simmons in July 2003 for unlawful sales of firearms.
Checking the relevant government databases, Harding first confirmed that
Simmons had no license. Then as part of his investigation, Harding arranged for a
paid government informant, Victor Thomas, a former drug dealer and gang
member, to attempt to buy guns from Simmons. Simmons sold firearms to Thomas
on four separate occasions. As the case turns on Simmons’s mental state during
the sales, we recount each with some degree of specificity.

       Thomas first called Simmons on July 23, 2003, after unsuccessfully
attempting to contact Simmons through a mutual acquaintance. Thomas informed
him that he wanted to purchase a gun, and they agreed to meet later in a Wal-Mart
parking lot. Harding and other ATF agents conducted surveillance and monitored
Thomas (through a concealed transmitter and tape recorder) during this and
subsequent meetings. Simmons arrived with two associates and explained that he
had not brought the gun with him because “he didn’t want the police to pull up on
him while he was bringing [Thomas] the firearm, he wanted to see if he knew
[Thomas] first.” Simmons further informed Thomas that he did not like to ride with
firearms in his car and arranged to move the meeting to a nearby custard stand. A
few minutes later, the men met at the agreed location and Thomas entered
Simmons’s car. Thomas gave Simmons the money, and Simmons then directed one
of his associates to give Thomas a .380 caliber pistol. Thomas told Simmons and
the other men that he was going to let a mutual acquaintance, who had just been
robbed, use the gun.

       The three remaining sales all occurred at Simmons’s house in August and
September 2003, with the ATF monitoring and recording each. The next purchase
occurred in early August. Outside the presence of the ATF, Thomas contacted
Simmons to learn whether he had firearms for sale. On August 5, Thomas called
again, this time while being recorded by the ATF, and Simmons informed him that
he had a Mini 14 rifle for sale. Simmons refused to meet at the custard stand,
indicating that he did not want to transport the gun in his car, and the men agreed
to meet at Simmons’s house. When Thomas arrived, Simmons took him to an
adjoining garage where Simmons retrieved a loaded Mini 14 rifle from under a
parked car. Simmons explained that he had gotten the gun from a man who had
been killed. Thomas gave Simmons $700 for the gun, and Thomas asked that the
gun be concealed in a nearby shirt. After the sale, Simmons told an unidentified
No. 05-1019                                                                  Page 3



man (who showed up at the house during the transaction) that he could get another
Mini 14 rifle if the unidentified man wanted it.

       The next sale occurred on August 19, when Thomas purchased a loaded Glock
.45 caliber pistol from Simmons. Prior to the sale, Thomas made both recorded and
unrecorded phone calls to Simmons to determine whether Simmons had a gun to
sell. Once again, the transaction took place at Simmons’s home. Before the sale,
Simmons expressed a great deal of hesitancy in selling either the .45 Glock
discussed on the phone or a .40 Glock, which Simmons had at his house. Simmons
told Thomas that the .45 Glock was registered, which meant that Simmons would
have to report the gun stolen. Eventually, however, Simmons decided to report that
he sold the gun at a gun show. In addition to cash, Simmons wanted Thomas to
provide him with a replacement gun as part of any sale. Simmons also asked
Thomas if he would be interested in purchasing a .38 special or a Taurus 9 mm
handgun. Ultimately, Simmons chose not to sell the .40 Glock, but agreed to sell
the .45 Glock to Thomas without a replacement gun.

       During the August 19 buy, Simmons and Thomas talked about gun shows.
Specifically, Simmons told Thomas that he went to gun shows as an “easy” method
of obtaining firearms and agreed to go with Thomas to the gun show to purchase
guns. Although the men planned to meet at a gun show in early September,
Simmons backed out on the day of the show. Simmons suggested that Thomas
simply get a “white girl to go buy a gun [] from the show.”

        The final sale occurred on September 9, at Simmons’s house, and involved an
assault rifle. When Thomas arrived to buy the gun, Simmons was waiting outside,
having locked himself out of his house. While waiting to get in, Simmons told
Thomas about the SK rifle that he planned to sell him. Simmons explained that
“you could scope somebody from a block with this weapon,” which Thomas
understood to mean that one would be able to shoot a person a block away with the
gun. Eventually, Simmons retrieved the keys to the house and returned with the
rifle, which was fully automatic. Simmons told Thomas that with a couple more
such rifles, he could rob a bank. Thomas then bought the SK rifle from Simmons.

       On September 12, the ATF arrested Simmons, and Agent Harding executed a
search warrant on Simmons’s residence. During the search, Harding found
numerous empty gun boxes for a variety of guns, several gun-related documents,
and a Taurus 9 mm pistol. One of the documents recovered was a gun show seller’s
card, which bore the names of a gun seller and Simmons’s girlfriend. Based on these
and other facts, a grand jury indicted Simmons for willfully engaging in the
business of dealing firearms without a license, in violation of 18 U.S.C. §
No. 05-1019                                                                                   Page 4



922(a)(1)(A) and (a)(2). A jury convicted Simmons on September 15, 2004. On
December 16, 2004, the district court imposed a term of 56 months’ imprisonment,
to run concurrently with a state prison sentence that Simmons was serving.
Simmons appeals his conviction and his sentence.

                                                 II.

                                                 A.

       Simmons first argues that the government did not present sufficient evidence
to support the jury’s conviction for willfully engaging in the business of dealing
firearms without a license. We review a challenge to the sufficiency of the evidence
in the light most favorable to the government and will reverse only if the record is
devoid of any evidence on which a rational jury could have returned a guilty verdict.
See United States v. Bonty, 383 F.3d 575, 577-78 (7th Cir. 2004). The statute in this
case, 18 U.S.C. § 922(a)(1)(A), prohibits any person from engaging in the business of
importing, manufacturing, or dealing in firearms, except licensed importers,
manufacturers, or dealers.1 The penalty provision for this statute requires a
showing of a willful violation. 18 U.S.C. § 924(a)(1)(D). Simmons does not argue
that he had a license nor that he was not engaged in the business of dealing in
firearms; rather, he contends that the government presented no evidence
establishing that he was aware of the need for a license and thus committed a
willful violation as required by the penalty provision of the firearms licensing
statute.

      While the Supreme Court has explained that willfulness can have varying
meanings depending on the context, see Bryan v. United States, 524 U.S. 184, 191
(1998), the Supreme Court has been absolutely clear that the willful violation
language in § 924(a)(1)(D) only requires a showing of “knowledge that the conduct is
unlawful.” Id. at 192, 196. In Bryan, as in this case, the Supreme Court considered


       1
         As explained in the statutory definition of “engaged in the business” and noted by the
Supreme Court in Bryan v. United States, 524 U.S. 185, 188 n.5 (1998), the firearms licensing
requirement does not include “a person who makes occasional sales, exchanges, or purchases of
firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of
his personal collection of firearms.” 18 U.S.C. § 921(a)(21)(c). Simmons makes a passing
reference in his initial brief that “the evidence showed that Simmons collected firearms and kept
firearms that he did not intend to sell,” but this point was never developed either in the briefs or
at oral argument. As such, Simmons waived any argument along these lines. See United States
v. Duran, 407 F.3d 828, 844 n.7 (7th Cir. 2005).
No. 05-1019                                                                       Page 5



a § 922(a)(1)(A) violation and had to decide whether “the term ‘willfully’ in 18
U.S.C. § 924(a)(1)(D) requires proof that the defendant knew that his conduct was
unlawful, or whether it also requires proof that he knew of the federal licensing
requirement.” Id. at 186. The Supreme Court explicitly rejected the argument that
the government needed to offer proof that the defendant was aware of the licensing
requirement. See id. at 192-95. The Court affirmed Bryan’s conviction, noting that
ample circumstantial evidence (including use of straw purchasers, street corner
sales, and his lack of a firearms license) demonstrated that he knew his conduct to
be illegal. See id. at 189, 200.

         In this case, the government supplied sufficient evidence to support the jury’s
conclusion that Simmons knew his conduct was unlawful. Most damning, of course,
are Simmons’s own statements that evinced a concern that law enforcement might
interrupt his nefarious dealings. Specifically, Simmons informed Thomas when
they first met that he needed to check Thomas out before going through with the
sale and that he was hesitant to bring the firearms with him in case the police
unexpectedly pulled up. In the later deals, Simmons again expressed concern over
having the firearms in his car and moved the meetings to his house. During the
transactions Simmons behaved as a man who knew his conduct was illegal and
sought to avoid police detection. Simmons’s statements about gun shows further
support the jury verdict on this point by illustrating his awareness of exceptions in
current gun licensing and sale laws. Simmons advised Thomas that he used gun
shows as an easy way to procure firearms and counseled Thomas do the same. The
police found a seller’s card that suggested Simmons had used his girlfriend as a
straw purchaser at a show, a method he had recommended to Thomas. This
evidence shows that Simmons was well aware of what constituted legal, as well as
illicit, conduct in the area of firearm sales. Together, all of the evidence from the
investigation clearly indicates that Simmons knew he was acting in violation of the
law and was more than sufficient to support the jury’s finding that Simmons
willfully violated § 922(a)(1)(A) when he sold firearms without a license.

                                          B.

       Simmons also challenges the district court’s sentencing determination. The
district court sentenced Simmons to 56 months’ imprisonment during the dusky
period between our consideration of the sentencing guidelines in United States v.
Booker, 375 F.3d 508 (7th Cir. 2004), and the Supreme Court’s resolution of the
issue in its later review of that case, Booker, 125 S. Ct. 738. Given the questions
surrounding the viability of the guidelines in this period, the district court employed
“indeterminate sentencing,” in which “the Court would not be bound by the U.S.
Sentencing Guidelines, and would exercise its discretion with due regard for the
No. 05-1019                                                                      Page 6



facts set forth in the Presentence Report and those facts presented at trial,”
according to the district court’s own description. The district court apparently did
not consider the guidelines at all. The government and defense counsel did not
object to this method.

       While the district court’s actions are understandable considering the
confusing state of the law at the time, the district court erred in employing this
indeterminate sentencing scheme. According to the Supreme Court, a sentencing
court “must consult those Guidelines and take them into account when sentencing,”
even though they are no longer mandatory. Booker, 125 S.Ct. at 767; see also
United States v. LaShay, 417 F.3d 715, 719 (7th Cir. 2005); United States v. Baretz,
411 F.3d 867, 877 (7th Cir. 2005). Here, the district court did not initially calculate
a guidelines sentencing range and use it as the starting point of its analysis, and
thus ran afoul of Booker.

       The government argues that the district court’s sentence is nonetheless
reasonable and should survive, but we cannot reach that conclusion as a matter of
course. The parties actively dispute the proper sentencing range. While the
sentence imposed was below the statutory maximum of 60 months, if a proper
guidelines calculation puts it above the advisory guidelines range, further
explanation from the district court would be required. See United States v. Dean,
414 F.3d 725, 729-30 (7th Cir. 2005) (district court should explain any deviations
from advisory guidelines range). All in all, the best course is to remand to allow the
district court to make the proper findings and resentence Simmons pursuant to
Booker.

                                          III.

    We AFFIRM Simmons’s conviction, but VACATE Simmons’s sentence and
REMAND for resentencing.
