In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2691

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROY ALLEN SKIDMORE,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 99 CR 120--Larry J. McKinney, Chief Judge.

Argued November 30, 2000--Decided June 19, 2001


  Before Ripple, Manion, and Kanne, Circuit
Judges.

  Kanne, Circuit Judge. Special Agents of
the Bureau of Alcohol, Tobacco, and
Firearms (the "ATF") executed a search
warrant at the residence of Roy Allen
Skidmore in Daleville, Indiana. The
search of the residence yielded some
twenty-four firearms and 3800 rounds of
ammunition. Skidmore was indicted for
possession of firearms and ammunition as
a convicted felon in violation of 18
U.S.C. sec.sec. 922(g)(1) and 924(e). He
was tried and convicted by a jury of
violating 18 U.S.C. sec. 922(g)(1).
Because Skidmore had previously been
convicted of three unrelated violent
felonies, the district court sentenced
him pursuant to 18 U.S.C. sec. 924(e),
the Armed Career Criminal Act, to a term
of 262 months incarceration.

  Skidmore now appeals, challenging both
his conviction and his sentence. He
contests the validity of his conviction
on two separate grounds. First, Skidmore
argues that the district court denied him
a fair trial by allowing Theresa Wolfe to
testify as to certain statements made by
his wife, Yolanda Skidmore. Second,
Skidmore attacks the district court’s use
of the word "failure" in the jury
instructions to describe his decision not
to present witnesses or produce any other
evidence at his trial. With regard to his
sentence, Skidmore argues that in two
respects, his sentence of 262 months
violated his constitutional rights in
light of the Supreme Court’s decision in
Apprendi v. New Jersey, 

, 

, 

(2000).
First, Skidmore contends that the
district court improperly sentenced him
pursuant to 18 U.S.C. sec. 924(e), when
the jury only found him guilty of
violating 18 U.S.C. sec. 922(g)(1).
Second, Skidmore asserts that the
district court’s application of the
United States Sentencing Guidelines
(U.S.S.G.) sections 4B1.4(b)(3)(A) and
(c)(2) to increase his sentence violated
his due process rights in light of
Apprendi. For the reasons stated below,
we uphold both Skidmore’s conviction and
his sentence.

Analysis

A. Skidmore’s Challenges to His
Conviction

1. The Admissibility of Statements
Made by Mrs. Skidmore

  Skidmore first challenges the validity
of his conviction by contending that the
district court abused its discretion and
denied him a fair trial by admitting
Theresa Wolfe’s testimony that Skidmore’s
wife made incriminating statements
regarding his status as a convicted
felon. Wolfe was employed as a secretary
at the Southside Gunshop ("gun shop"), a
federally licensed firearms dealer in
Muncie, Indiana. Wolfe met the Skidmores
at the gun shop and became friends with
them on a social level. At Skidmore’s
trial, Wolfe testified that the Skidmores
came into the gun shop together and
examined various firearms with the gun
shop’s owner, William Crowder. During
these visits, Crowder would hand
different firearms to Wolfe instructing
her to fill out a Form 4473/1 for each
firearm. Mrs. Skidmore would then
complete the portion of each of these
forms designated for purchaser
information, indicating that she was
purchasing the firearms. Wolfe indicated,
however, that she never saw Mrs. Skidmore
give Crowder any money. While filling out
one of these forms, Wolfe asked Mrs.
Skidmore why she was signing the form.
Wolfe testified that Mrs. Skidmore told
her that her husband could not sign for
the firearms because he had been in
prison. Skidmore’s counsel objected to
the admissibility of Wolfe’s testimony
regarding Mrs. Skidmore’s statements as
to why she was signing the forms. The
district court overruled this objection,
however, allowing these statements to be
admitted as a declaration of a co-
conspirator pursuant to Rule 801(d)(2)(E)
of the Federal Rules of Evidence./2

  We review the district court’s decision
to admit Wolfe’s testimony pursuant to
Rule 801(d)(2)(E) for an abuse of
discretion. See United States v.
Maholias, 

, 878 (7th Cir.
1993). "For coconspirator statements to
be admitted pursuant to Rule
801(d)(2)(E), the Government must prove
by a preponderance of the evidence that a
conspiracy existed, that both the
declarant and the defendant were members
of the conspiracy, and that the
statements were made in the course and in
furtherance of the conspiracy." United
States v. Ladd, 

, 704 (7th
Cir. 2000). We review the district
court’s findings with regard to these
elements for clear error. See United
States v. Godinez, 

, 454 (7th
Cir. 1997). While the Supreme Court has
not determined whether a hearsay
statement on its own and without other
independent evidence is enough to
establish the existence of a conspiracy
such that the statement may be properly
admitted under 801(d)(2)(E), the Court’s
decision in Bourjaily v. United States,

, 

, 

144 (1987), held that "a court, in
making a preliminary factual
determination under 801(d) (2)(E), may
examine the hearsay statements sought to
be admitted." 

To satisfy the
"existing conspiracy" requirement, "[t]he
Government need not . . . charge a
conspiracy in order for a coconspirator
statement to be admitted." 

. In examining what
constitutes a statement in "furtherance
of a conspiracy," we have explained that
a wide range of statements qualify,
"includ[ing] comments designed to assist
in recruiting potential members, to
inform other members about the progress
of the conspiracy, to control damage to
or detection of the conspiracy, to hide
the criminal objectives of the
conspiracy, or to instill confidence and
prevent the desertion of other members."
United States v. Johnson, 

,
532 (7th Cir. 2000).

  The government’s theory in this case was
that Mrs. Skidmore was a straw purchaser
for her husband, designating herself as
the purchaser and owner of firearms that
Skidmore wanted to acquire but could not
do so legally because he was a convicted
felon. Thus, the government contends that
Mrs. Skidmore’s statement to Wolfe about
her husband was made during the course of
and in furtherance of a conspiracy to
unlawfully obtain firearms for Skidmore.
The government established that Skidmore
and his wife visited the gun shop on
numerous occasions viewing firearms with
the store’s owner, William Crowder. If a
decision was made to purchase a firearm,
Crowder would hand the firearm to Wolfe,
with whom Mrs. Skidmore would then fill
out the required Form 4473 for that
particular firearm. Wolfe testified that
she never saw Mrs. Skidmore ever give
Crowder any money. These facts, taken
with Mrs. Skidmore’s explanation that she
was filling out the forms required for
the purchase of a firearm because her
husband had been in prison, validate the
government’s theory. Wolfe, a friend of
the Skidmores, was obviously curious
about the peculiar process by which the
Skidmores purchased firearms when she
asked Mrs. Skidmore why she was filling
out the mandatory forms. Mrs. Skidmore’s
decision to reveal to Wolfe the actual
reason she repeatedly designated herself
as the purchaser of these firearms can be
characterized as an expression of trust
as well as an attempt to secure the
confidence of her friend, thereby
preventing further detection of what she
and her husband were doing. It was not
clear error, therefore, for the district
court to find that this statement was
made in furtherance of the Skidmores’
conspiracy to acquire firearms for
Skidmore. Thus, we conclude that the
district court did not abuse its
discretion in admitting Wolfe’s testimony
of Mrs. Skidmore’s explanation as to why
she was designating herself as the
purchaser of multiple firearms pursuant
to Rule 801(d) (2)(E).

2.   Jury Instructions

  Skidmore also asserts that his
conviction is invalid because of the
district court’s use of the word
"failure" in one of the instructions read
to the jury to describe his decision not
to present any witnesses or produce any
evidence. Skidmore contends that the
court’s instruction was an error that
prejudiced his entire trial. Because
Skidmore did not object to this
instruction until after the jury had
begun to deliberate, we review this claim
for plain error. See United States v.
Ray, 

, 831 (7th Cir. 2001)
(stating that when a defendant does "not
object to the jury instruction in
question at trial, we review the district
court’s instructions for plain error").
Our plain error standard of review
permits us "’to correct only particularly
egregious errors for the purpose of
preventing a miscarriage of justice[,] .
. . which implies the conviction of one
who but for the error would have been acquitted.’"
United States v. Krankel, 

,
1052 (7th Cir. 1998) (quoting United
States v. Linwood, 

, 422 (7th
Cir. 1998)). Additionally, when analyzing
a defendant’s challenge to a specific
jury instruction, "we must view the
instructions as a whole and consider the
challenged instruction both in the
context of the other instructions given
and in light of the allegations of the
complaint, the opening and closing
arguments, and the evidence of the
record." Resnover v. Pearson, 

, 1463 (7th Cir. 1992).

  The section of the instruction Skidmore
challenges stated that "[t]he jury will
always bear in mind that the law never
imposes on a defendant in a criminal case
the duty of calling any witnesses or
producing any evidence, and no adverse
inference may be drawn from his failure
to do so." It should first be noted that
this case does not implicate Skidmore’s
privilege against compulsory self-
incrimination under the Fifth Amendment.
See United States v. Sblendorio, 

, 1391 (7th Cir. 1987) (noting that a
"defendant’s decisions about evidence
other than his own testimony do not
implicate the privilege"). Instead, what
is at issue here is the ever present
notion in our criminal justice system
that Skidmore was to be presumed innocent
of the charges against him until proven
guilty, and that he had no obligation
whatsoever to call any witnesses or
produce any evidence of his innocence at
his trial. We agree with Skidmore that
his decision not to present any witnesses
or evidence should not have been referred
to as a "failure" of any kind on his
part. The court’s use of this word in the
instruction is problematic because, as
Skidmore notes in his brief, it carries
with it the possible implication from the
court to the jury that Skidmore has
neglected a responsibility to present
testimony and other evidence. A conscious
decision by a defendant not to testify,
present other witnesses, or produce any
other evidence should not be
characterized in the instructions as
constituting a failure on the part of a
defendant. Ironically, the district court
used the word failure in explaining to
the jury that Skidmore had a right not to
present witnesses or any other evidence
and that it was not permitted to draw any
negative conclusions from his decision to
exercise this right.

  While we take this opportunity to
emphasize that this language should not
be used in similar jury instructions in
the future,/3 we find that the district
court’s inclusion of the word failure in
this case does not constitute plain
error. The portion of the instruction
Skidmore challenges is a section of an
individual instruction that was one of
twenty-six instructions read to the jury.
Immediately before the court read the
challenged section to the jury, it
explained within the same instruction
that:

  The defendant is presumed to be innocent
of the charge against him. This
presumption remains with the defendant
throughout the trial and during your
deliberations on the verdict, and is not
overcome unless from all the evidence in
the case you are convinced beyond a
reasonable doubt that the defendant is
guilty.

  The government has the burden of proving
the guilt of the defendant beyond a
reasonable doubt, and this burden remains
on the Government throughout the case.
The defendant is not required to prove
his innocence or to produce any evidence.

Furthermore, immediately following the
challenged section, also within the same
instruction, the court properly
instructed the jury regarding Skidmore’s
right not to testify: "the defendant in a
criminal case has an absolute right not
to testify. The fact that the defendant
did not testify should not be considered
by you in any way in arriving at your
verdict." Although the court’s use of the
word failure was indeed a poor choice,
the context of the instruction in which
the word was used was one in which the
court was clearly indicating to the jury
that the government had the burden of
proving Skidmore’s guilt, and that he had
no obligation to prove his innocence.
Therefore, we find that this individual
instruction, read in its entirety, along
with the twenty-five other instructions
presented to the jury, was not so tainted
by the district court’s use of the word
failure that we can now conclude that
Skidmore might have been acquitted but
for the court’s inclusion of this word in
the jury instructions.

B.   Skidmore’s Challenges to His Sentence

  Both of Skidmore’s challenges to his
sentence of 262 months incarceration are
based on the Supreme Court’s decision in
Apprendi v. New Jersey, 

, 

, 

(2000).
Because he did not raise these claims in
the district court, we review them for
plain error. See United States v.
Lamarre, 

, 649 (7th Cir.
2001).

1. The Application of 18 U.S.C. sec.
924(e)

  Skidmore first challenges his sentence
by contending that he was
unconstitutionally sentenced as an armed
career criminal pursuant to 18 U.S.C.
sec. 924(e)(1). He argues that, although
the crime for which the jury convicted
him--being a felon in possession of
firearms in violation of sec. 922(g)(1)--
only carries a sentence of up to ten
years, he was improperly sentenced under
sec. 924(e)(1), the Armed Career Criminal
Act, which carries a maximum penalty of
life imprisonment, based on his having
been previously convicted of three
separate violent felonies. Skidmore
asserts that under Apprendi, whether he
had been convicted of three separate
violent felonies is a fact that should
have been presented to the grand jury,
tried before the jury, and found beyond a
reasonable doubt before he was sentenced
under sec. 924(e)(1). Because the jury
was not presented with the question of
whether Skidmore had been convicted of
these crimes, he argues that the district
court’s imposition of a sentence pursuant
to sec. 924(e)(1) was invalid. Thus, he
asks this Court to reverse and remand
with instructions to the district court
to re-sentence him to no more than 120
months.

  Section 922(g)(1) explains that it is
unlawful for any person:

who has been convicted in any court of, a
crime punishable by imprisonment for a
term exceeding one year; to ship or
transport in interstate or foreign
commerce, or possess in or affecting
commerce, any firearm or ammunition; or
to receive any firearm or ammunition
which has been shipped or transported in
interstate or foreign commerce.

Skidmore is correct that ordinarily the
maximum sentence for a violation of sec.
922(g)(1) is ten years. See 18 U.S.C.
sec. 924(a)(2). However, a defendant that
is found to have violated sec. 922(g)
"and has three previous convictions by
any court referred to in section
922(g)(1) . . . for a violent felony or
a serious drug offense, or both,
committed on occasions different from one
another . . . shall be . . . imprisoned
not less than fifteen years." 18 U.S.C.
sec. 924(e)(1). Thus, in this case,
because Skidmore had been convicted of
three separate violent felonies,/4 as
defined by 18 U.S.C. sec. 924(e)
(2)(B),/5 the maximum sentence Skidmore
faced was life imprisonment.

  In Almendarez-Torres v. United States,

, 

, 

350 (1998), a case decided before the
Court’s decision in Apprendi, the Court
concluded that recidivism used to enhance
a defendant’s maximum penalty is not an
element of a crime that must be charged
in an indictment and found beyond a
reasonable doubt but instead is a
sentencing factor. 

243-44.
Recognizing that this holding forecloses
his argument here, Skidmore argues that
Apprendi severely undermines the validity
of Almendarez-Torres. In Apprendi the
Court held that "[o]ther than the fact of
a prior conviction, any fact that
increases the penalty for a crime beyond
the prescribed statutory maximum must be
submitted to a jury, and proved beyond a
reasonable 

. While
the majority opinion in Apprendi noted
that "it is arguable that Almendarez-
Torres was incorrectly decided, and that
a logical application of our reasoning
today should apply if the recidivist
issue were 

(footnote omitted), the Court
specifically carved out and maintained
the exception for "prior convictions"
explained in Almendarez-Torres. See 

does not overrule the
holding of Almendarez-Torres . . . that
penalty enhancements based on recidivism
need not be established beyond a
reasonable doubt." United States v.
Brough, 

, 1081 (7th Cir.
2001). Because Skidmore’s three separate
violent felony convictions were the
reason he was subjected to the enhanced
statutory maximum provided by sec. 924(e)
for his violation of sec. 922(g)(1), we
conclude that his sentence of 262 months
was proper under Apprendi. See 18 U.S.C.
sec. 924(e)(1); see also United States v.
Thomas, 

, 1034 (11th Cir.
2001) (citation omitted) (finding no
Apprendi violation in imposition of 295
month sentence where jury found the
defendant guilty of violating sec. 922(g)
and defendant had three prior violent
felony convictions because "sec.
924(e)(1) authorizes a punishment of not
less than fifteen years (which means up
to life imprisonment) for violation of
sec. 922(g) where the defendant has
previously been convicted of three
violent felonies or serious drug
offenses"); United States v. Dorris, 

, 586-88 (10th Cir. 2000)
(dismissing defendant’s claim that 210
month sentence violated Apprendi when
sentence was imposed pursuant to sec.
924(e) after jury convicted defendant of
violating sec. 922(g)(1) and defendant
had three prior violent felony
convictions); United States v. Mack, 

, 235 n.12 (3d Cir. 2000) (noting
that Apprendi did not affect defendant’s
262 month sentence, imposed pursuant to
sec. 924(e), after a jury found defendant
guilty of violating sec. 922(g)(1)
because the statutory maximum for that
defendant, who had three prior violent
felony convictions, was life
imprisonment).

2. The District Court’s Calculation of Skidmore’s
Sentence Under the Sentencing Guidelines
  Skidmore also challenges his sentence by
asserting that the district court’s use
of U.S.S.G. sections 4B1.4(b)(3)(A) and
(c)(2) to increase his sentence violated
his due process rights in light of
Apprendi. Skidmore was sentenced as an
armed career criminal pursuant to section
4B1.4 because his three prior violent
felony convictions rendered him "subject
to an enhanced sentence under the
provisions of 18 U.S.C. sec. 924(e)." U.S.
Sentencing Guidelines Manual sec. 4B1.4(a)
(1998). At Skidmore’s sentencing hearing,
the district court determined that
Skidmore had been in possession of a
silencer. Because this silencer was a
type of firearm described in 26 U.S.C.
sec. 5845(a)(7), U.S.S.G. sections
4B1.4(b)(3)(A) and (c)(2) required
Skidmore’s base level offense to be set
at 34 and his criminal history category
to be set at VI./6 This combination
resulted in a sentencing range of 262-327
months. The court proceeded to sentence
Skidmore to 262 months, the low end of
this range.

  Skidmore argues that the increase in his
sentence provided for by sections
4B1.4(b)(3)(A) and (c)(2) is
unconstitutional under the Supreme
Court’s decisions in Apprendi and
Castillo v. United States, 

,

, 

(2000)./7 According to Skidmore, these
guideline sections impermissibly
increased his sentence based on the
district court’s determination, by a
preponderance of the evidence, that he
possessed a specific type of firearm
described in 26 U.S.C. sec. 5845(a).
Skidmore contends that Apprendi and
Castillo mandate that whether he
possessed a silencer is a fact that
should have been presented to the jury
and found beyond a reasonable doubt. We
do not agree.

  We certainly recognize, as other
circuits have observed, that "four
dissenting justices in Apprendi expressed
concern that the principle that they
understood underlies the majority’s
ruling threatened the validity of fact-
finding by a sentencing judge in applying
the Sentencing Guidelines." United States
v. Garcia, 

, 183 (2d Cir.
2001). Indeed, "one member of the
Apprendi majority intimated in a footnote
that Apprendi’s reasoning might extend to
fact-finding for purposes of the
Sentencing Guidelines." 

We
have concluded, however, along with every
other circuit to consider this issue,
that a district court may make various
factual determinations under the
guidelines, thereby affecting a
defendant’s sentence, so long as such
determinations do not cause the
defendant’s sentence to exceed the
prescribed statutory maximum for that
crime. See Talbott v. Indiana, 

, 869 (7th Cir. 2000) ("Apprendi does
not affect application of the relevant-
conduct rules under the Sentencing
Guidelines to sentences that fall within
a statutory cap."); accord United States
v. Robinson, 

, 119 (1st Cir.
2001); United States v. 

; United States v. Williams, 

, 863 (3d Cir. 2000); United
States v. Obi, 

, 667 (4th
Cir. 2001); United States v. Miranda, 

, 444 (5th Cir. 2001); United
States v. Munoz, 

, 414 (6th
Cir. 2000); United States v. Aguayo-
Delgado, 

, 934 (8th Cir.
2000); United States v. Hernandez-
Guardado, 

, 1027 (9th Cir.
2000); United States v. Wilson, 

, 1215-16 (10th Cir. 2001); United
States v. Nealy, 

, 829 (11th
Cir. 2000); In Re: Sealed Case, 

, 699 (D.C. Cir. 2001). The statutory
maximum for Skidmore’s conviction was
life imprisonment. Because Skidmore’s
sentence was within this maximum, we
dismiss his claim that the district
court’s factual findings under the
sentencing guidelines improperly
increased his sentence under Apprendi. As
we explained in Talbott, "when the
statutory maximum is life imprisonment,
Apprendi is beside the point." 

.

Conclusion

  For the reasons stated above, we AFFIRM
both Skidmore’s conviction and his
sentence.

FOOTNOTES

/1 This form must be completed for every firearm
sold at a federally licensed firearms dealer.

/2 "A statement is not hearsay if . . . (2) The
statement is offered against a party and is . .
. (E) a statement by a coconspirator of a party
during the course and in furtherance of the
conspiracy." Fed. R. Evid. 801(d)(2)(E).

/3 Although no Seventh Circuit Pattern jury in-
struction actually uses the word failure in the
context in which it is used in this case, the
genesis of the district court’s use of this
language could possibly be found in the title of
section 3.01 of the Pattern Criminal Federal Jury
Instructions for the Seventh Circuit, which is
unfortunately named "Failure of Defendant to
Testify." Pattern Crim. Fed. Jury Instr. for the
Seventh Circuit sec. 3.01.

/4 The Pre-Sentencing Report (the "PSR") prepared
for Skidmore’s sentencing hearing indicated that
Skidmore had been convicted of three felonies:
Second Degree Burglary and Stealing in Missouri,
Armed Robbery in Indiana, and Battery in Indiana.
Skidmore did not challenge the existence or
validity of these convictions. Thus, the PSR
satisfied the government’s burden under 18 U.S.C.
sec. 924(e)(1) to establish that Skidmore had
three prior violent felony convictions. See
United States v. Hudspeth, 

, 1019 n.6
(7th Cir. 1994).

/5 18 U.S.C. sec. 924(e)(2)(B) explains that
"violent felony" in this subsection:

means any crime punishable by imprisonment for a
term exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a
firearm, knife, or destructive device that would
be punishable by imprisonment for such term if
committed by an adult, that--

(i) has as an element the use, attempted use, or
threatened use of physical force against the
person of another; or

(ii) is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct
that presents a serious potential risk of physi-
cal injury to another.

/6 U.S.S.G. sec. 4B1.4 explains that:

(b) The offense level for an armed career crimi-
nal is the greatest of:

(1) the offense level applicable from Chapters
Two and Three; or

(2) the offense level from sec. 4B1.4 (Career
Offender) if applicable; or

(3)(A) 34, if the defendant used or possessed the
firearm or ammunition in connection with a crime
of violence or controlled substance offense, as
defined in sec. 4B1.2(a), or if the firearm
possessed by the defendant was of a type de-
scribed in 26 U.S.C. sec. 5845(a); or

(B) 33, otherwise.

(c) The criminal history category for an armed
career criminal is the greatest of:

(1) the criminal history category from Chapter
Four, Part A (Criminal History), or sec. 4B1.1
(Career Offender) if applicable; or

(2) Category VI, if the defendant used or pos-
sessed the firearm or ammunition in connection
with a crime of violence or controlled substance
offense, as defined in sec. 4B1.2(a), or if the
firearm possessed by the defendant was of a type
described in 26 U.S.C. sec. 5845(a); or

(3) Category IV.

/7 In Castillo, the Court evaluated 18 U.S.C. sec.
924(c)(1), which provides that "[w]hoever, during
and in relation to any crime of violence . . .
uses or carries a firearm, shall, in addition to
the punishment provided for such crime . . . be
sentenced to imprisonment for five years." Sec-
tion 924(c)(1) proceeds to specifically provide,
however, that "if the firearm is a machinegun" a
defendant will be sentenced to a mandatory sen-
tence of thirty years imprisonment. The Court
found that in this situation, "Congress intended
the firearm type-related words it used in sec.
924(c)(1) to refer to an element of a separate,
aggravated crime." 

.
Thus, whether a defendant used or carried a
"machinegun" was a question of fact for the jury.