                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



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

                             Submitted November 21, 2019
                              Decided November 26, 2019

                                         Before

                          DIANE P. WOOD, Chief Judge

                          FRANK H. EASTERBROOK, Circuit Judge

                          DANIEL A. MANION, Circuit Judge

No. 19-1419

UNITED STATES OF AMERICA,                      Appeal from the United States District
     Plaintiff-Appellee,                       Court for the Central District of Illinois.

      v.                                       No. 4:16-cr-40048

MARVIN L. DAVIS,                               Sara Darrow,
    Defendant-Appellant.                       Chief Judge.

                                       ORDER

       Marvin Davis pleaded guilty to intentionally making a false statement when
purchasing a firearm. The district court sentenced him to 48 months’ imprisonment—
above the Sentencing Guidelines range of 21 to 27 months—and three years’ supervised
release. Davis appeals, but his appointed attorney asserts that the appeal is frivolous
and moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). We invited Davis to
identify potential issues for appeal, CIR. R. 51(b), but he did not respond. Because
counsel’s brief thoroughly addresses the issues that an appeal of this kind might be
expected to involve, we limit our review to the subjects that counsel discusses.
United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
No. 19-1419                                                                         Page 2

        While on probation in Illinois for possession of cannabis, Davis purchased seven
handguns and one long gun from a federally licensed firearm dealer. The dealership
reported the purchase as suspicious to the Bureau of Alcohol, Tobacco, Firearms, and
Explosives. When the Bureau contacted Davis, he admitted that he had written an old
address on the firearm-transaction record. Davis later pleaded guilty to making a false
statement, “in connection with the acquisition … of any firearm,” that was “intended or
likely to deceive [the dealer] with respect to any fact material to the lawfulness of the
sale.” 18 U.S.C. § 922(a)(6). While out on bond, Davis tested positive for marijuana and
failed to report for drug testing numerous times, in violation of the terms of his release.

        In the presentence investigation report, the Probation Office recommended that a
higher base offense level be applied because the Bureau suspected that Davis was a
“straw purchaser.” The base offense level for a conviction under § 922(a)(6) increases if
the offense was committed “with knowledge, intent, or reason to believe that the
offense would result in the transfer of a firearm or ammunition to a prohibited person,”
such as a felon. U.S.S.G. § 2K2.1(a)(6)(C). Davis claimed that he had stored the firearms
in his father’s home, but agents were unable to locate them there. Four of the eight
firearms were later recovered from felons and a suspect in an armed robbery. Further,
the Bureau knew that after Davis had reported as missing firearms that he had
purchased in 2013, one was recovered from a felon and the other was recovered near
the scene of a shooting.

       At the sentencing hearing, the district court agreed that the presentence
investigation report correctly calculated the applicable guidelines range of 21 to 27
months’ imprisonment. The court, however, believed that the guidelines’ treatment of
straw purchasers was too lenient and imposed a sentence of forty-eight months’
imprisonment instead. In justifying the sentence, the court also referred to Davis’s risk
of recidivism, his violations of bond conditions, and the fact that he was under state
supervision when he committed the crime.

       Counsel does not explore potential challenges to Davis’s guilty plea because
“Davis informed counsel that he does not seek to withdraw his guilty plea” and
“instead raises challenges to his sentence” only. See United States v. Konczak, 683 F.3d
348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). But
counsel does not state expressly that he both consulted with Davis and “provide[d]
advice about the risks and benefits” of challenging the plea, as Konczak requires.
683 F.3d at 349. The oversight is harmless, however, because according to our review,
No. 19-1419                                                                          Page 3

the district court complied with the requirements of Federal Rule of Criminal Procedure
11 to ensure that the plea was knowing and voluntary.

        In the district court, Davis did not move to withdraw his guilty plea, so we
would review his plea colloquy for plain error. United States v. Davenport, 719 F.3d 616,
618 (7th Cir. 2013). Under this standard, an error is reversible if it affected Davis’s
substantial rights. Id. The sole omission from the plea colloquy was the advice that non-
citizens may be removed from the United States if convicted (Rule 11(b)(1)(O)), but that
provision did not pertain to Davis because he is a United States citizen, and so it did not
affect his substantial rights. Thus, any argument that Davis’s plea was invalid would be
futile. See Konczak, 683 F.3d at 349.

        Counsel first considers challenging the guidelines calculation by arguing that the
district court lacked the requisite evidentiary basis to determine that Davis intended to
resell the firearms to prohibited persons but determines that the argument would be
frivolous because Davis waived it. Davis filed this objection before the sentencing
hearing, yet, without explanation, did not raise it there when asked whether he had any
objections to the guidelines range. Then, further complicating matters, Davis interjected
to make this point during the court’s discussion of § 3553(a) factors. Counsel may be
able to argue that, at the very least, this objection was unwittingly forfeited, rather than
strategically waived. See United States v. Barnes, 883 F.3d 955, 957–58 (7th Cir. 2018).
Nonetheless, the district court is not bound by the rules of evidence when determining
a defendant’s base offense level and need only support its finding by a preponderance
of evidence. United States v. Ghiassi, 729 F.3d 690, 695 (7th Cir. 2013). And here the
district court had ample evidence to support a reasonable inference about Davis’s
intent, including information from law enforcement about where half of the guns ended
up and no contrary explanation for those circumstances. We agree that an appeal on
this ground would be frivolous.

        We also agree with counsel that it would be frivolous to challenge the
substantive reasonableness of Davis’s sentence, even though it is above the applicable
guideline range. But we do not agree with counsel’s assessment that any such
arguments have been waived. Counsel overlooks the difference between an objection
and an exception, which we explained in United States v. Bartlett, 567 F.3d 901, 910
(7th Cir. 2009). For example, counsel asserts that, because Davis did not request further
elaboration from the district court about its reasons for imposing the sentence, he
waived his ability to argue that the court did not provide sufficient justification or that
its reasoning was faulty. “But the rules do not require a litigant to complain about a
No. 19-1419                                                                           Page 4

judicial choice after it has been made.” Id. In his presentencing filings and at the
sentencing hearing, Davis argued for a below-guidelines sentence based on a number of
factors. This was sufficient to preserve an objection to a sentence well above the
guidelines range, even without objecting to the court’s policy justifications or other
reasoning after they were announced. See United States v. Pennington, 908 F.3d 234, 238
(7th Cir. 2018). We agree with counsel, however, that, waiver aside, those arguments
would be frivolous.

       While the sentence imposed was well outside the advisory range, we agree that
the district court provided such a thorough explanation of its reasons for the variance
that any challenge to it would be frivolous. See United States v. Wade, 890 F.3d 629, 633
(7th Cir. 2018) (court “need not give an ‘exhaustive’ explanation for the sentence,” even
when it varies above the guidelines, so long as it “explain[s] and support[s] the
magnitude of the variance”). We will uphold an above-guidelines sentence so long as
the district court reviewed the factors in 18 U.S.C. § 3553(a) and clearly explained why
the guidelines do not reflect the seriousness of the offense. United States v. Musgraves,
883 F.3d 709, 716 (7th Cir. 2018).

        Here, the district court articulated a policy disagreement with the offense level
under U.S.S.G. § 2K2.1(a)(6)(C), which, the court said, “get[s] it wrong” and “very
inadequately addresses the very serious nature of [Davis’s] offense conduct.” The court
explained that straw purchasers: (1) circumvent gun-control laws that prevent certain
people from possessing firearms “for very valid reasons”; (2) “should be treated more
severely than somebody who’s just a felon in possession” because they enable multiple
persons to break the law and harm the public; and (3) facilitate crime in the same way
as a getaway driver, who is held responsible for acts of violence committed by others. A
district court has discretion to depart from the sentencing range based on a categorical
disagreement with the guidelines, as long as it acts reasonably in exercising that power.
Spears v. United States, 555 U.S. 261, 264 (2009); United States v. Corner, 598 F.3d 411, 415
(7th Cir. 2010). The district court acknowledged and explained its policy disagreement,
so we would not substitute our judgment.

       Further, the district court discussed the § 3553(a) factors to support its decision to
vary upward from the guidelines range. The court cited Davis’s history of purchasing
guns that ended up in the unlawful possession of others and the seriousness of his
offense, including the known number of guns (four) that wound up in the hands of
criminals this time and the reasonable inference that the missing four did, too. General
deterrence was an unusually strong consideration for this crime, the court explained,
No. 19-1419                                                                       Page 5

because those who can be straw purchasers by definition do not have substantial
criminal histories and need to know that this crime will carry strong punishment in the
first instance. The court also rejected Davis’s mitigation arguments that his criminal
history category overrepresented his risk of recidivism and that he was an involved
father with a supportive family. First, the court replied that Davis’s recent bond
violations, and his having committed this offense while on state supervision, offset his
sparse criminal history. The court further noted that Davis’s family commitments and
support had not deterred him from criminal activity. Given the court’s thorough
explanation of its chosen sentence, we agree with counsel that it would be frivolous to
argue that the sentence is substantively unreasonable.

        Finally, we agree with counsel’s assessment that it would be frivolous to
challenge either the imposition of or the conditions of supervised release, neither of
which Davis objected to. The three-year term is within the statutory maximum and
consistent with the recommended range of one to three years, and we see no basis on
which Davis could establish plain error with respect to any of the conditions. See United
States v. Flores, 929 F.3d 443, 445 (7th Cir. 2019).

      We GRANT counsel’s motion to withdraw and DISMISS the appeal.
