USA v. Jason Nichol
Filed opinion of the court by Judge Ripple. AFFIRMED. Kenneth F. Ripple, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6816604-1]  [16-1628]
United States Court of Appeals
For the Seventh Circuit
UNITED STATES OF AMERICA,
JASON L. NICHOLS,
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:15-cr-00051-jdp-1 — James D. Peterson, Judge.
ARGUED SEPTEMBER 23, 2016 — DECIDED FEBRUARY 6, 2017
Before RIPPLE, ROVNER, and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Jason Nichols was charged with two
counts of possession of a firearm by a felon, in violation of 18
U.S.C. § 922(g). Prior to trial, Mr. Nichols moved to suppress
the evidence relating to the second count, and, following an
evidentiary hearing, the district court denied his motion. He
then pleaded guilty to count two, reserving his right to appeal
the suppression issue. The Government moved to dismiss the
first count and the court granted that motion.
In calculating the appropriate guidelines range, the district court denied Mr. Nichols credit for acceptance of responsibility and imposed an enhancement for obstruction of justice. It also concluded that he was not entitled to a reduction
in his offense level on the ground that all the firearms and
ammunition in his possession were used exclusively for
sporting purposes. The court imposed a sentence of 27
months’ imprisonment, at the low end of the applicable
Mr. Nichols now challenges his conviction and sentence.
He contends that his confession to law enforcement was involuntary and should have been suppressed by the district
court. He further contends that, in calculating his sentencing
guidelines range, the court should have given him credit for
acceptance of responsibility, see U.S.S.G § 3E1.1, and should
not have imposed an enhancement for obstruction, id. § 3C1.1.
Finally, he submits that his guidelines range should have been
reduced because all of the contraband for which he was prosecuted was used for lawful sporting purposes. See U.S.S.G.
We affirm. The district court was faced with opposing versions of the circumstances of Mr. Nichols’s confession from
Mr. Nichols himself and his probation officer; it made a credibility determination, which we have no cause to upset on appeal. In light of its determination that Mr. Nichols testified
falsely in connection with his motion to suppress, the court
committed no reversible error in applying the obstruction enhancement and denying credit for acceptance of responsibility. Finally, Mr. Nichols’s unsupported statements failed to
carry his burden of demonstrating that the contraband involved in his case was used exclusively for lawful sporting
purposes as would justify a reduction under U.S.S.G.
On January 7, 2015, Mr. Nichols was involved in an altercation at his home that escalated when he threatened someone with a weapon. Responding officers of the Iowa County,
Wisconsin Sheriff’s Department took him into custody. During the subsequent investigation of the altercation, Mr. Nichols consented to a search of his property. During the search,
officers found a black case for a Taurus brand handgun with
six .40 caliber rounds in it, as well as a stray round in a cabinet.
In the same cabinet, officers discovered a Taurus PT 58 SS .380
semi-automatic handgun with a fully loaded magazine along
with other ammunition in a separate, zippered case.
Mr. Nichols stated that he previously had sold a handgun
without its case and that he had forgotten about the remaining handgun.
At the time of the incident, Mr. Nichols was serving a
three-year probation term for a prior federal felony mail fraud
offense. When his probation officer, Kris Kiel, learned of
Mr. Nichols’s arrest, she conducted a home visit. In the course
of that visit, Mr. Nichols turned over to Officer Kiel a gallonsize container, half-full of various types of firearm ammunition as well as two or three shotgun shells, which he retrieved
separately from a hunting vest.
In April 2015, a federal grand jury indicted Mr. Nichols on
one count of possession of a firearm and ammunition by a
felon and one count of possession of ammunition by a felon,
both in violation of 18 U.S.C. § 922(g). Mr. Nichols initially
pleaded not guilty and moved to suppress the evidence underlying the second count. He claimed that any statements
and surrender of contraband that he had made to Officer Kiel
were involuntary and based on false promises of leniency.
A magistrate judge held a hearing on the motion. Officer
Kiel testified that she had been a U.S. Probation Officer for
twenty-three years. She described her review of the police report from the January 7 altercation, and the brief phone contacts she had with Mr. Nichols to set up the home visit on January 23. She noted that she had been concerned about the possibility that Mr. Nichols had a firearm on his property because
the police report had noted the recovery of an empty handgun
case. With respect to the visit itself, she described Mr. Nichols
as calm and cooperative. She stated that she had inquired
about the empty case and that he had told her that he sold the
weapon without its case to a former girlfriend.
According to Officer Kiel, this exchange led to a conversation “about contraband and what constituted contraband.”1
She explained that “guns, ammunition, drugs, anything like
that would be considered contraband” and asked whether he
had any.2 At that point, according to Officer Kiel, Mr. Nichols
R.24 at 15.
led the way to the basement and gave Officer Kiel “a gallon-size half-full container of ammunition of various types.”3
Officer Kiel then inquired whether there was any other contraband in the house, and Mr. Nichols led Officer Kiel and her
colleague back upstairs and took two or three shotgun shells
out of a hunting vest and gave them to her.
Officer Kiel affirmatively stated that neither in her previsit calls nor in the home visit itself did she ever make any
promises of leniency to Mr. Nichols in exchange for his cooperation in turning over any contraband. She also did not
threaten him with revocation of his probation for failure to
answer questions or cooperate. She stated that it was the policy of the Probation Office to make no promises to defendants
who are under supervision. Officer Kiel also stated that, in her
many years as a Probation Officer, this occasion was only the
second time that someone had turned over a weapon or ammunition to her. It was not her practice to request such a turnover; rather, she would inform those under her supervision of
the prohibition on contraband, what it covered, and consequences for violation. She would reiterate this information on
multiple occasions throughout probation. The court also
asked several follow-up questions, and Officer Kiel noted that
she had begun discussing these prohibitions with Mr. Nichols
when he was in his pretrial phase for his prior offense. She
knew him to be an avid hunter, and she knew of the presence
of hunting equipment; once he was placed on probation following the conviction, she initiated and repeated the conversations about contraband.
Mr. Nichols also testified at the hearing. He claimed that
“[s]hortly after being placed on probation” he discussed firearms and ammunition with Officer Kiel.4 Specifically, according to Mr. Nichols, Officer Kiel had told him that “if [he] was
to find any ammunition in the home” he should “give it to
her.”5 In response, he claimed that he had “asked [Officer
Kiel] if [he] would get in trouble and [Officer Kiel] said no.”6
He also claimed that in one of the phone calls to arrange the
home visit in January 2015, Officer Kiel again had told him
that he should hand over any ammunition to her for proper
disposal, and again had promised that he would not “get in
trouble” if he did so.7 Mr. Nichols further claimed that, in that
phone conversation, he responded that, to his knowledge,
there was no ammunition in the home but that he had some
unpacked boxes in the basement and was not sure of their
contents. He further testified that, on the day of the visit itself,
Officer Kiel again instructed him to hand over to her any contraband, which he did. Mr. Nichols also testified about an
email he had sent to his attorney in May, after having seen the
charge related to the contraband recovered from him on January 23. In the email, he noted that he had been promised that
handing over contraband would not result in adverse consequences for him. He also stated that, had he not received these
promises, he would have disposed of the ammunition himself.
Id. at 30.
Id. at 31.
Based on both Officer Kiel’s and Mr. Nichols’s testimony,
the magistrate judge issued a report and recommendation,
which characterized the motion hearing as essentially “a
swearing contest.”8 The magistrate judge accepted Officer
Kiel’s version of events and therefore recommended denial of
Mr. Nichols’s motion to suppress. The report found that
Mr. “Nichols had plenty of opportunities to dispose of firearms and ammunition on his own.”9 Moreover, he had been
alerted on numerous occasions of the consequences of contraband prior to the January incidents and had never disclosed
the presence of the handgun recovered in early January or the
ammunition. Allegations that he forgot were incredible, given
that he “had been able to remember, recover and brandish his
handgun in a trice while drunk and angry.”10 The report also
found it “[e]qually incredible” that Mr. Nichols had sought
assurances about immunity prior to knowing that there was
contraband in the basement, but did not seek to confirm it
once he had allegedly located the ammunition in advance of
the home visit.11
Mr. Nichols objected to the report and recommendation of
the magistrate judge. He first argued to the district court that
the magistrate judge had relied on erroneous facts that were
extraneous to the immediate matter at hand. He also contended that the magistrate judge erroneously had concluded
that Mr. Nichols’s perception of a promise of immunity was
R.31 at 1.
Id. at 7.
Id. at 8.
not a determinative factor. Finally, he contended that the factual record did not support the recommendation.
The district court overruled these objections and adopted
the magistrate judge’s recommendation. Specifically, the district court found that the magistrate judge properly had considered the allegations surrounding the altercation on January 7, 2015 because “[t]he allegation that Nichols had possessed a firearm during an incident that le[d] to his arrest is
obviously part of the factual background of this case.”12 As
for Mr. Nichols’s “state of mind,” the district court concluded
that “[t]he decisive fact is what Kiel said, and it does not matter at all what Nichols believed. If Kiel did not make the promise, then it does not matter whether Nichols somehow convinced himself that she had.”13
After the district court’s denial of the motion to suppress,
Mr. Nichols pleaded guilty to Count 2 of the indictment, the
count involving the ammunition recovered by Officer Kiel; in
exchange, the Government agreed to dismiss Count 1, involving the January 7 incident. Mr. Nichols reserved the right to
appeal on the motion.
The presentence report recommended a two-level enhancement under U.S.S.G. § 3C1.1 for obstruction of justice
and no reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1. Mr. Nichols objected not only to this recommendation, but also to the offense-level calculation. He contended that his offense level should be reduced to level 6 because the guns and ammunition that he possessed were used
R.37 at 4.
Id. at 5.
solely for lawful sporting purposes pursuant to
§ 2K2.1(b)(2).14 The district court overruled these objections.
Specifically, the court determined that Mr. Nichols had obstructed justice because he willfully had made material false
statements at the evidentiary hearing. Moreover, because of
his obstruction of justice, he was not entitled to a reduction
for acceptance of responsibility. Finally, the district court
found that Mr. Nichols had not demonstrated that the guns
and ammunition possessed were used solely for lawful sporting purposes pursuant to § 2K2.1(b)(2).
The court then determined that Mr. Nichols’s advisory
guidelines range was 27 to 33 months and sentenced
Mr. Nichols to 27 months’ imprisonment with 3 years of supervised release. The court also revoked Mr. Nichols’s probation and imposed 12 months’ imprisonment concurrent to the
27-month sentence. Mr. Nichols timely appeals his conviction
Mr. Nichols’s appeal of his conviction rests on his claim
that the district court erred in denying the motion to suppress.
With respect to his sentence, he challenges both the imposition of the obstruction enhancement and the denial of credit
for acceptance of responsibility. He also challenges the district
That section provides, in pertinent part, “If the defendant … possessed
all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such
firearms or ammunition, decrease the offense level determined above to
level 6.” U.S.S.G. § 2K2.1(b)(2).
court’s denial of the offense level reduction in U.S.S.G.
§ 2K2.1(b)(2); he continues to assert that all of the contraband
recovered in relation to Count 2 was used for sporting purposes. We address each of these issues in turn.
In a challenge to the denial of a motion to suppress, we
review all factual determinations for clear error, and we review conclusions of law de novo. United States v. Villalpando,
588 F.3d 1124, 1127 (7th Cir. 2009). Accordingly, where the
district court’s factual findings are supported by the record,
we will not disturb them. United States v. Sands, 815 F.3d 1057,
1061 (7th Cir. 2015). Credibility determinations receive special
deference; we uphold them unless “completely without foundation” in the record. United States v. Freeman, 691 F.3d 893,
899 (7th Cir. 2012) (internal quotation marks omitted).
The parties agree, correctly, that a government agent’s
“false promise of leniency may render a statement involuntary.” Villalpando, 588 F.3d at 1128. “An empty prosecutorial
promise could prevent a suspect from making a rational
choice by distorting the alternatives among which the person
under interrogation is being asked to choose.” Id. (internal
quotation marks omitted).
As we previously noted, at the hearing on his motion to
suppress, Mr. Nichols and his probation agent, Officer Kiel,
gave testimony in direct conflict. Indeed, the magistrate judge
called it “a swearing contest,”15 and the district court noted
R.31 at 1.
that it was “a straightforward credibility contest.”16 The district court found believable Officer Kiel’s version of the
events: as a twenty-three-year veteran of the Probation Office,
it is unlikely that Officer Kiel violated her office’s policy and
made a promise of leniency (or immunity) to Mr. Nichols.
Moreover, the context of Officer Kiel’s inquiry bolsters her
version of events. As the magistrate judge noted:
The court’s general take-away from Kiel’s version of events is that she and Nichols had had the
“no-guns-or-ammo” conversation several times
while Kiel was supervising Nichols, but Kiel
never told Nichols that he would have to surrender this sort of contraband over to her or to law
enforcement. In other words, Nichols had plenty
of opportunities to dispose of firearms and ammunition on his own, without consequence. …
Nichols faced no Catch-22 here.
Nothing in the record suggests that Officer Kiel’s version of
events is “exceedingly improbable.” United States v. Vallar, 635
F.3d 271, 283 (7th Cir. 2011) (internal quotation marks omitted). We therefore accept the district court’s credibility determinations and accept its further findings of fact.
Mr. Nichols also submits that, in finding him incredible,
the district court erroneously relied on disputed factual material not in evidence in this case. Specifically, he notes that
the district court relied in part on the fact that he had been
told on several occasions prior to the January incidents that
R.37 at 2.
R.31 at 7–8.
he was prohibited from possessing firearms and ammunition
as a condition of his probation. Although he claimed to have
forgotten about the presence of firearms and ammunition in
his home, the court noted that he was able to retrieve a firearm during the January 7 dispute and threaten someone with
it, which indicated that he had made false statements about
his possession of contraband prior to January 23.
We need not decide whether the district court should
have considered the statements about the January 7, 2015 incident and his weapon possession at that time. Even if
Mr. Nichols did not retrieve a weapon on January 7 during
an altercation, the fact remains that, prior to January 7, he
had been warned about the consequences of firearm possession and never had sought to search his possessions and dispose of all firearms and ammunition on his own. The district
court did not err in considering this warning as part of its
overall assessment of credibility.
Finally, the district court properly considered not only
the plausibility of the two versions of events, but also the motivations of the witnesses. Considering all that evidence, the
district court found Officer Kiel credible and accepted her
version of events; we see no basis to disrupt those findings.
Mr. Nichols also contends that the district court erred in
determining that his belief that he could turn over the ammunition without negative consequences was irrelevant to the
suppression motion. The district court took a different view.
It found that the possibility that Mr. Nichols had a mistaken
belief that he had been promised leniency or immunity for his
conduct was not raised reasonably by the record. We agree.
The evidence at the suppression hearing presented, as the district court characterized the situation, “a stark, binary contrast
between two alternative versions of the facts: Nichols claims
that Kiel expressly promised him immunity; Kiel denies ever
saying such a thing. If Nichols is right that Kiel promised him
immunity, then the statements to Kiel and the ammunition
must be suppressed.”18 We are left with two alternatives: either Officer Kiel coerced Mr. Nichols by promising him that
he would not get in trouble for turning over contraband to her
or she did not. We already have credited the district court’s
findings in this regard.
In sum, the district court’s ruling on the motion to suppress was based on a factual conclusion that there were no
promises of immunity or leniency. That finding was based on
credibility determinations made about witnesses at the suppression hearing. We see no basis to reverse the district
court’s determination on the voluntariness of the admissions
to Officer Kiel or on the physical evidence obtained as a result.
The Sentencing Guidelines permit a two-level enhancement for obstruction of justice
[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstruc-
R.37 at 5.
tive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or
(B) a closely related offense[.]
U.S.S.G. § 3C1.1. We review the district court’s determination
that a defendant satisfies the requirements of the obstruction
of justice enhancement de novo, and its supporting factual
findings for clear error. United States v. Jackson, 787 F.3d 1153,
1159 (7th Cir. 2015). In applying the enhancement, the district
court concluded that Mr. Nichols had testified falsely at the
Both parties agree that a finding that the defendant committed perjury is sufficient to justify the enhancement. See id.
“To apply the enhancement based on perjury, the district
court should make a finding as to all the factual predicates
necessary for a finding of perjury: false testimony, materiality,
and willful intent.” Id. (internal quotation marks omitted).
On this point, Mr. Nichols continues to assert factual error
by the district court in refusing to credit his testimony, a position we already have rejected. In addition, Mr. Nichols invites the court’s attention to scattered comments by the magistrate judge and the district court which, taken together,
could be read to suggest that he did not form the necessary
intent for an obstruction enhancement. He likens his case to
United States v. Parker, 716 F.3d 999 (7th Cir. 2013), in which
we held that the obstruction enhancement was improper
where the court had commented that the defendant “may
even believe herself that she didn’t negotiate these checks,”
which suggested an absence of willfulness. Id. at 1012 (internal quotation marks omitted). Indeed, we stated that the district court’s comments in Parker left us “unsure as to whether
the court found that Parker’s denial of involvement in the
scheme was willful.” Id.
Mr. Nichols points us to what he perceives are parallel
comments in his own record, specifically, the magistrate
judge’s comment that he “‘would not speculate as to Nichols’[s] actual thought process’” and that “‘perhaps Nichols
has convinced himself that Kiel really did offer him absolution in the abstract,’”19 and the district court’s comment that
“there may be an arguable position” that Mr. Nichols did not
make willingly false statements.20 Unlike in Parker, however,
the record here is unambiguous regarding the district court’s
ultimate conclusions on willfulness. That the district court
asked the parties to argue willfulness shows its thorough and
deliberate consideration of the issue. After hearing from both
sides, it plainly found that the record supported a finding of
willfulness. In short, Parker is inapposite where, as here, the
district court heard argument and made explicit findings on
the willful falsity of Mr. Nichols’s statements. The district
court therefore did not err in applying the enhancement for
obstruction of justice.
Mr. Nichols also challenges the denial of the downward
adjustment for acceptance of responsibility under U.S.S.G.
§ 3E1.1. The Guidelines permit a defendant to receive both the
obstruction enhancement and credit for acceptance of responsibility only in “extraordinary cases” because conduct supporting the enhancement generally indicates that he has not
accepted responsibility. U.S.S.G. § 3E1.1 cmt. n.4; see also
United States v. Black, 636 F.3d 893, 900 (7th Cir. 2011); United
Appellant’s Br. 26 (quoting R.31 at 9).
R.59 at 6, see also id. at 8–9.
States v. Krasinski, 545 F.3d 546, 554 (7th Cir. 2008). The defendant “bears the burden of proving that he is entitled to a
reduction.” United States v. Purchess, 107 F.3d 1261, 1266 (7th
Cir. 1997) (internal quotation marks omitted). “Whether a defendant has accepted responsibility is a factual finding, which
we review for clear error and accord great deference” to the
sentencing judge. United States v. Pons, 795 F.3d 745, 747 (7th
Mr. Nichols argues that he is entitled to an adjustment for
acceptance of responsibility for several reasons: he never denied possession of the contraband charged in Count 2; he entered a timely guilty plea following denial of his suppression
motion; and he challenged only the voluntariness of his confessional statements and acts. He relies on decisions which
hold that a defendant’s decision to raise a legal challenge to
admitted facts or otherwise to challenge the admissibility of
evidence do not automatically preclude the § 3E1.1 adjustment. See United States v. Washington, 340 F.3d 222, 230 (5th
Cir. 2003); Purchess, 107 F.3d at 1267.
The record does not support the view that the district
court denied the adjustment because of Mr. Nichols’s legal
challenges; instead, it based its denial on Mr. Nichols’s obstruction of justice by giving false testimony at the suppression hearing. The court’s findings about his untruthfulness
are an adequate basis to support denying the adjustment. See,
e.g., United States v. Yusuff, 96 F.3d 982, 990 (7th Cir. 1996)
(denying credit for acceptance where the defendant pleaded
guilty and “admitt[ed] guilt” but obstructed justice by giving
false testimony at a suppression hearing about the conduct of
investigating officers). There is simply nothing in the record
to indicate that this case presents the kind of extraordinary
circumstances envisioned by the application notes.
At sentencing, Mr. Nichols asserted that he was entitled to
a reduction of his offense level down to level 6, under U.S.S.G.
§ 2K2.1(b)(2), which applies “if the defendant … possessed all
ammunition and firearms solely for lawful sporting purposes
or collection, and did not unlawfully discharge or otherwise
unlawfully use such firearms or ammunition.” Application
Note 6 suggests that relevant circumstances in this analysis
include “the number and type of firearms, the amount and
type of ammunition, the location and circumstances of possession and actual use, the nature of the defendant’s criminal
history (e.g., prior convictions for offenses involving firearms), and the extent to which possession was restricted by
local law.” U.S.S.G. § 2K2.1(b)(2) cmt. n.6. A defendant bears
the burden of proof on his eligibility for the sporting reduction. See United States v. Gresso, 24 F.3d 879, 880 (7th Cir. 1994).
The parties agree that target shooting qualifies as a sporting purpose under the guideline. United States v. Lewitzke, 176
F.3d 1022, 1028 (7th Cir. 1999). Mr. Nichols contends that the
firearm and ammunition confiscated on January 7, 2015, as
well as the ammunition provided to Officer Kiel during the
home visit, were for sporting purposes. Mr. Nichols asserts
that the district court erred in denying a reduction under the
“sporting purpose” guideline by concluding that target practice was not a sporting activity.
In denying the applicability of the guideline, the court
noted that it was “not limited to considering only the ammunition that was in the plastic bag that was turned over to Ms.
Kiel” but also could consider the contraband retrieved during
the January 7, 2015 incident, which included a “handgun and
the ammunition for it.”21 The court continued that it would
not allow the exception to swallow the rule and noted that
“there’s virtually no weapon that you couldn't say wasn't
used in a sporting way if you consider target practice to be a
sporting activity.”22 Any suggestion that the court denied that
target practice was a sporting activity as a blanket matter is
belied by the district court’s written statement of reasons,
which we review alongside the transcript. See United States v.
Pape, 601 F.3d 743, 747 (7th Cir. 2010); United States v. Baker,
445 F.3d 987, 991–92 (7th Cir. 2006). That statement does not
reject target shooting as a sporting purpose, but instead discusses the number, type, and location of the contraband recovered in considering whether to apply the exception. This
reasoning was proper under the application notes to § 2K2.1.
Most importantly, the only evidence in the record that all the
contraband was used exclusively for sporting is Mr. Nichols’s
own statement, which the district court did not credit. Mr.
Nichols bore the burden on this issue, and he did not create a
record that made a convincing case for the district court. The
district court therefore did not err in denying the reduction
under the sporting purposes guideline.
R.59 at 12.
The district court’s factual finding at Mr. Nichols’s suppression hearing, based on its credibility assessments of
Mr. Nichols and his Probation Officer, is not clearly erroneous, and therefore, the court did not err in finding that his
confessional acts were voluntary. Furthermore, the false testimony that Mr. Nichols provided at his suppression hearing is
an adequate basis for the court to have both imposed the enhancement for obstruction of justice and denied the adjustment for acceptance of responsibility. Finally, Mr. Nichols
failed to carry his burden to show that all the contraband recovered in January 2015 was used exclusively for sporting
purposes, where his only affirmative evidence was his own
unsupported statements. We therefore affirm Mr. Nichols’s
conviction and sentence.
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