Weekly Case Digests January 24, 2022 - January 28, 2022.

• Author: Hawkins, Derek
• Position: United States of America v. Michael Price

Byline: Derek Hawkins

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: United States of America v. Michael Price

Case No.: 20-2490

Officials: EASTERBROOK, ROVNER, and WOOD, Circuit Judges.

Focus: Sentencing Guidelines Enhancement

Believing that Carissa Sammons had stolen some of his girlfriend's jewelry, Michael Price called the house in Indianapolis where Sammons was staying and announced that he was coming to get the jewelry backby force, if necessary. When Price tried to gain entrance, Brian Butler closed the front door. Price fired a revolver several times through the door, hitting Edwin Smith in the leg. Price dropped the revolver and fled. When police caught up with his truck, they found a Taurus pistol. Price has pleaded guilty to the crime of possessing a gun, which his felony record made unlawful. 18 U.S.C. 922(g)(1). Although the indictment does not identify the gun or guns that Price unlawfully possessed, the factual basis proffered in support of the plea identifies possessing the Taurus pistol as the crime of conviction. The court sentenced Price to 110 months in prison.

The presentence report recommended that the judge add four offense levels under U.S.S.G. 2K2.1(b)(6)(B), which applies when the defendant "used or possessed any firearm or ammunition in connection with another felony offense". The PSR observed that shooting into an occupied house amounts to the state offense of criminal recklessness, Ind. Code 35-42- 2-2(b)(1)(A), if not something more serious. Unfortunately, the report did not quote 2K2.1(b)(6)(B) accurately. Instead it paraphrased the rule as one that adds four levels if "[t]he defendant possessed the firearm while committing another felony offense."

At sentencing the judge quoted from that paraphrase rather than from 2K2.1(b)(6)(B). Yet the two concepts differ. An enhancement for a felony committed "while possessing" a firearm would apply if Price had left the Taurus in a bank vault and arrived at the house with a baseball bat or a knife. The crime of possession continues as long as a gun is under a felon's control; it need not be in his hand (or truck). But under 2K2.1(b)(6)(B) the enhancement is appropriate only if the firearm was "used or possessed in connection with another felony offense"in other words, only if the firearm was involved in, or contributed to, the other felony. See, e.g., United States v. LePage, 477 F.3d 485, 489 (7th Cir. 2007).

The judge did mention that, by possessing the revolver long enough to shoot it, Price independently violated 922(g)(1). And the Assistant United States Attorney observed that the indictment is broad enough to encompass the revolverwhich three witnesses say Price brought to the door, though Price says he obtained during a struggle with Butler. Still, the crime of conviction entailed the pistol but not the revolver, given the factual basis admitted in the plea colloquy. The district court's failure to make an essential finding means that we must remand. The United States has not argued that any error was harmless.

The judgment is vacated, and the case is remanded for proceedings consistent with this opinion.

Vacated and cause remanded

Full Text

[divider]

7th Circuit Court of Appeals

Case Name: Billie Vargas Love v. United States of America

Case No.: 20-3534

Officials: EASTERBROOK, MANION, and WOOD, Circuit Judges.

Focus: Statutory Interpretation FTCA Expert Testimony

Louis Vargas received extensive medical care from the Veterans Administration. He argues in this suit under the Federal Tort Claims Act, 28 U.S.C. 267180, that a nurse employed by the VA was negligent in failing to order additional tests after receiving the results of a urinalysis in October 2015. More testing, Vargas contended, would have revealed that he suffered from a urinary tract infection. He continues: Failure to diagnose that infection led to a heart attack, which led to extended hospitalization, which led to pain and inflammation caused by the catheters inserted into his hands during this stretch in the hospital.

The district court held a bench trial and ruled against Vargas on all of his principal contentions. Vargas v. United States, 430 F. Supp. 3d 500 (N.D. Ill. 2019), motion for a new trial denied, 2020 U.S. Dist. LEXIS 220349 (Nov. 24, 2020). The judge found that further testing to identify a potential urinary tract infection was not required by the appropriate standard of care, given the judge's finding that no other indication of infection was present. The results that Vargas contended implied a need to search for an infection were consistent with benign prostate hypertrophy (an enlarged prostate), for which Vargas had been treated since 2004.

On appeal Vargas contests some of the important factual findings, but none is clearly erroneous. (Vargas died after the district court's opinion was issued, and the appeal is being prosecuted by the administrator of his estate. We refer to the appellant as "Vargas" for clarity.) Vargas's principal appellate arguments concern expert evidence.

The doctrine on which Vargas reliesone under which medical professionals must stay within the scope of their expertise, see, e.g., Sullivan v. Edward Hospital, 209 Ill. 2d 100, 11315 (2004)is designed to ensure that judges and juries rely on properly supported testimony. So, for example, a nurse practitioner could not testify in Illinois to the standard of care by a urologist; medical doctors have greater knowledge than nurses on matters within their specialties. Federal courts would reach the same conclusion under Rule 702. But the doctrine need not work in reverse. Coogan testified that even a board-certified urologist would not have seen anything in the October 2015 test result calling for further lab work. If that is a correct statement of the medical standard of care at the highest leveland the district judge found that it isthen a nurse practitioner's identical decision cannot be negligent. Illinois does not hold nurses to the higher standard of specialists; but when the standard of specialists has been met, a nurse cannot be blamed for a bad outcome. None of Vargas's remaining arguments requires discussion.

Affirmed

Full Text

[divider]

7th Circuit Court of Appeals

Case Name: United States of America v. Timothy Kurzynowski

Case No.: 20-3491

Officials: BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Abuse of Discretion Compassionate Release

Timothy Kurzynowski pleaded guilty to distributing child pornography. He admitted to officers that he spent years in internet chatrooms discussing sexual behavior involving minors and that his sexual interest...