United States of America v. Melvin G. Tate

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 2, 2005
Decided November 29, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1667
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MELVIN G. TATE,
Defendant-Appellant.
Appeal from the United
States District Court for the
Central District of Illinois.
No. 04-20016-001
Michael P. McCuskey, Chief
Judge.
Order
Sentencing is the only issue in this criminal appeal. Melvin Tate pleaded guilty
to possessing a firearm despite a prior felony conviction. 18 U.S.C. §922(g)(1). His
sentence of 109 months’ imprisonment was influenced by the district court’s conclu-
sion that he possessed a firearm in connection with another crime. See U.S.S.G.
§2K2.1(b)(5). Shannette Tetter, Tate’s former girlfriend, told officials that he carried
a gun when transporting and selling heroin. According to Tate, Tetter’s statement is
too unreliable to be the basis of a higher sentence.
The accuracy of statements is a question for the trier of fact in all but the rarest
situations. The district judge had two good reasons for believing Tetter: First, eve-
rything that she told law-enforcement officials that could be verified was checked
and verified; that lent her other statements the ring of truth. Tate conceded the
accuracy of many of her statements (such as that he was a drug dealer). Second, the
proposition that guns and drugs go together is a commonplace. It would be the rare
drug dealer who owned a gun (as Tate has admitted he did) yet did not ever carry

-- 1 of 2 --

No. 05-1667 Page 2
that gun in connection with his drug business. Tate could have called Tetter to the
stand but chose not to do so; the procedures used to ascertain the facts were ade-
quate to test her ability to recall and relate what happened.
Tetter did not know (at least, did not say) whether the gun Tate toted with his
heroin was the same one he admitted possessing as part of his guilty plea. One
court of appeals has held that an enhancement under §2K2.1(b)(5) is proper
whether or not defendant used a second gun. See United States v. Mann, 315 F.3d
1054, 1057 (8th Cir. 2003). That is sensible; why should the sentence for a person
who carries multiple firearms be lower than that of a person who possesses just
one? There is no contrary authority. See also United States v. Settle, 414 F.3d 629,
633–34 (6th Cir. 2005); United States v. Jardine, 364 F.3d 1200, 1207–08 (10th Cir.
2004) (same conclusion under analogous provision of Guidelines). We need not pur-
sue the subject, however. Tate did not try to pin down at sentencing whether he
possessed and used one gun or more than one. Moreover, the question after Booker
is not whether the Sentencing Guidelines compel the judge to add time to an of-
fender who uses a second gun, but whether a sentence computed as the judge did is
reasonable. This sentence is reasonable by analogy to §2K2.1(b)(5) whether or not
that Guideline covers the multiple-firearm situation directly.
AFFIRMED

-- 2 of 2 --