                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2794

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

A NTHONY R. W ISE,
                                            Defendant-Appellant.


           Appeal from the United States District Court
               for the Southern District of Illinois.
           No. 07 CR 30049—Michael J. Reagan, Judge.



    A RGUED JANUARY 8, 2009—D ECIDED F EBRUARY 17, 2009




   Before E ASTERBROOK, Chief Judge, and E VANS and
T INDER, Circuit Judges.
  E VANS, Circuit Judge. It is an event almost too painful
to recount: a four-year-old discharged a gun he found
lying around the house, killing his two-year-old cousin.
The inaptly named Anthony Wise is the person who left
the loaded gun on a window ledge behind a computer.
As it turns out, Wise was even extra unwise because he
was a convicted felon who could not legally possess a
gun. As a result of all this, Wise was charged and con-
2                                             No. 08-2794

victed for being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). His sentence was en-
hanced because the judge found that he had also vio-
lated an Illinois statute prohibiting child endangerment.
Wise was sentenced above the guideline range to a term
of 120 months in prison. He contends the enhancement
was improper and that the sentence is unreasonable.
  Until the week before the incident, Wise was living
with Kimberly Terrell, the mother of the slain child—we
will refer to the child as Sandy—in her apartment in
Venice, Illinois. Although Wise was not Sandy’s bio-
logical father, he considered himself to be her father
and his name was on her birth certificate. Two days
before the day in question, Wise was in the apartment.
While there, he placed a loaded gun on a window ledge,
a spot where it should have been quite obvious that kids
could find it. He later acknowledged, because children
were often present, it was not a good place to leave a
loaded gun.
  On the evening of the incident, Wise and a friend,
Anthony Borney, were at Kimberly’s apartment. Also
in the apartment in the living room were Kimberly’s four-
year-old nephew, who we will call Danny, and another
two-year-old little girl. At some point, Wise and Kimberly
went into a bedroom and began to argue, leaving the
children in the living room with Borney. Later, Borney
left the room. Less than two minutes after he left, a gun-
shot rang out. In that short time, Danny had picked up
the gun, and it discharged in his hands. Borney, Wise, and
Kimberly rushed to the living room to find Sandy lying
No. 08-2794                                              3

on the floor. She had been shot in the head. Wise picked up
the gun and ran from the apartment. He threw it away
near a railroad track, where the Illinois State Police sub-
sequently found it after Wise told them where it was.
Sandy, sadly, died the following day at a hospital in
St. Louis.
  Wise was charged and entered a guilty plea to being a
felon in possession of a firearm. He was sentenced to
120 months in prison. He says the sentence is unrea-
sonable and that, specifically, the adjustment applied to
his base offense level, pursuant to § 2K2.1(b)(6) of the
United States Sentencing Guidelines, was improper.
  In relevant part, that section calls for the base offense
level to be increased four levels
   [i]f the defendant used or possessed any firearm or
   ammunition in connection with another felony
   offense; or possessed or transferred any firearm or
   ammunition with knowledge, intent, or reason to
   believe that it would be used or possessed in con-
   nection with another felony offense.
The district judge concluded that Wise committed
“another felony offense” when he violated 720 ILCS 5/12-
21.6(a), the Illinois law that prohibits reckless endanger-
ment of a child resulting in death. The law provides that
it is a violation to
   willfully cause or permit the life or health of a child
   under the age of 18 to be endangered or to willfully
   cause or permit a child to be placed in circumstances
   that endanger the child’s life or health[.]
4                                               No. 08-2794

A violation of the statute that is a “proximate cause of the
death of the child is a Class 3 felony[.]” 720 ILCS 5/12-
21.6(d).
  The issue before us is whether Wise violated this
statute and, if so, whether the violation fits within
§ 2K2.1(b)(6). We first turn to the question of whether
he violated Illinois law. Under Illinois law, “endanger” for
purposes of the statute refers to a potential or possible
injury; it does not require conduct that results in actual
harm. People v. Jordan, 218 Ill. 2d 255 (2006). Here, of
course, it did, and in fact caused the death of a child.
Under the statute, as Jordan explains, “willful conduct”
means knowing conduct. Wise acknowledged that he
knew leaving the gun where he did was not safe and
that he knew little children were often in the house. It
goes almost without saying that leaving a loaded gun
where children can find it is reckless endangerment. In
fact, the State of Illinois originally charged Wise with
this offense.
  Next, then, we must consider whether a violation of
this statute fits within § 2K2.1(b)(6).
   It is undisputed that Wise was a felon in possession of
a firearm. So the question is simply whether he “used
or possessed any firearm or ammunition in connection
with another felony offense.” He says the purpose of
§ 2K2.1(b)(6) is to punish more severely a defendant who,
on top of the firearms offense, commits a separate felony
that is made more dangerous by the presence of the
firearm. He argues the willful endangerment offense
was not made more dangerous by possessing the firearm,
No. 08-2794                                                 5

but rather his lapse in properly handling the firearm
was the essence of that offense. In connection with this
argument, he says that the endangerment was not “an-
other felony offense” but rather was the same crime as
the federal crime of being a felon in possession of a firearm.
  We disagree. There are many ways in which a felon
can possess a firearm. In this case, Wise would have been
a felon in possession even had he possessed the gun in
a more responsible way—say, if he had kept it unloaded
in a locked cabinet, or if he had kept it unloaded with
a trigger lock. More than likely, though, responsible
possession would not have endangered the lives of chil-
dren. And, of course, there are ways in which children
can be endangered, other than by having people leaving
loaded guns lying around. Children can be carelessly
allowed to fall out of open third-story windows or be
allowed access to harmful chemicals. Also, notably, chil-
dren’s lives can be endangered by persons who are
not felons but who leave loaded guns within reach.
  In this case, in addition to being a felon in possession
of a firearm, Wise also, by carelessly leaving his loaded
gun in a location accessible to children, willfully caused
or permitted the life of a child to be endangered, which,
in this case, resulted in the death of the child. It is fair
to say that possessing a gun is one thing, but leaving it,
loaded, lying around where children can find it, is quite
another. Wise possessed the firearm in connection with
another felony offense for purposes of § 2K2.1(b)(6).
 Wise also contends that the sentence is unreasonable.
We review the reasonableness of a sentence for an abuse
6                                               No. 08-2794

of discretion, regardless of whether it is inside or outside
the guideline range. United States v. Gordon, 513 F.3d 659
(7th Cir. 2008). A sentence outside the guideline range
is not presumptively unreasonable. Irizarry v. United
States, 128 S. Ct. 2198 (2008). Deference is given to the
district court’s determination that the factors in 18
U.S.C. § 3553(a), when taken as a whole, justify the
extent of the variance from the guidelines. See Gordon, 513
F.3d at 666.
  Wise argues that his sentence is unreasonable because
it was not the result of reasoned consideration of the
§ 3553 factors. He says, basically, that the judge had a
visceral reaction to the crime, which resulted in the 120-
month sentence. Even if he did, and realistically who
wouldn’t, he nevertheless gave reasoned consideration
to the § 3553 factors and explained the sentence:
    If ever a case cried out for the maximum, this is it. It
    is rare that you would ever hear me say that the
    maximum is not enough. I usually complain that
    Congress’ sentences are too stiff, that mandatory
    minimums are inappropriate, but this is one set of
    facts where I think I can make an argument that ten
    years isn’t enough.
      We have a dead two-year old who was killed by a
    four-year old who is definitely going to have long term
    problems. . . . This case is going to have ripple effects
    that are negative for a long time for these kids and
    for their mother.
The judge then proceeded to consider other aggravating
and mitigating factors. Finally, he considered whether
No. 08-2794                                              7

Wise should get credit for acceptance of responsibility. He
concluded he should not because shaving any time off the
sentence would not send the right signal in terms of
deterrence; in short the judge found that nothing but the
maximum was appropriate. We cannot say there was an
abuse of discretion.
 Accordingly, the judgment is A FFIRMED.




                          2-17-09
