The Seventh Circuit Court of Appeals affirmed U.S. District Judge Staci Yandle’s conclusion that a chewing tobacco container could be considered a “destructive device” under the National Firearms Act to enhance sentencing guidelines when it is modified to house explosives in a bomb-like apparatus.
The appellate court further affirmed an extended prison sentence for defendant Jeffrey E. Creek to protect the public from crimes he may commit in the future.
During sentencing, Yandle said, “The most important thing to this court in this case is the need to protect the public from future crimes by Mr. Creek. I will not shrug off his conduct as not hurting anybody. I think the public is at a significant risk.”
The appeal was argued at the Seventh Circuit on Jan. 19, and a decision was published March 6 by Appellate Judge Amy St. Eve. Judges Thomas L. Kirsch II and John Lee concurred.
“This appeal asks whether a tin can for chewing tobacco could be a ‘destructive device’ within the meaning of the National Firearms Act,” St. Eve wrote. “Yes, the district court held - so long as that can is filled with energetic powder, sealed with adhesive, and outfitted with a fuse.”
Creek appealed after Yandle applied a two-level “destructive device” enhancement when calculating his sentencing guidelines range. The appellate court affirmed Yandle’s decision to apply the enhancement and sentence Creek to eight years in prison.
According to the appellate decision, Creek came to the attention of federal agents when U.S. Customs and Border Patrol agents intercepted a package addressed to him from China. When agents opened the package, which was labeled “TIRE REMOVAL EXTENSION TUBE,” they allegedly found a gun silencer.
Officers secured a warrant to search Creek’s home, where they found five firearms - including two “ghost guns” made from plastic parts - as well as magazines and ammunition.
Creek also told the agents about a “firework” on his dresser, which was a device made from a chewing tobacco tin can. The device contained black powder, was rigged with a wick and covered in tape. Testing confirmed the can contained 12.35 grams of energetic powder, which is “like gunpowder,” according to the appellate court.
“Creek told agents that he wanted the device to be ‘watertight’ because he liked to throw this kind of device into a lake or field to ‘get a big boom,’” St. Eve wrote.
Creek was charged with unlawfully possessing a firearm as a felon. He pleaded guilty to the charge.
Creek’s presentence investigation report disclosed three previous convictions in Creek’s criminal history, including two dating back to 1996 and before for unlawfully possessing a silencer. St. Eve wrote that these two convictions were too old to formally count towards his criminal history score.
However, Creek’s 1999 offense counted for three criminal history points towards his score. He was convicted for operating a meth lab where officers discovered 22 firearms, including an M16 rifle, a pipe bomb, and a grenade.
Creek’s sentencing hearing was held May 4, 2023, and Yandle applied a two-level sentencing enhancement for the “destructive device.” Yandle reasoned that the device was essentially a fully assembled bomb. With the enhancement, Yandle calculated Creek’s guidelines range of imprisonment at 41 to 51 months. She ended up sentencing him to 96 months in prison - 45 months above the guidelines range.
“The district court varied upward from this range,” St. Eve wrote. “Reflecting on Creek’s criminal history and advising counsel that it was considering this variance, the court posited that ‘the guidelines to some degree understate or underrepresent the seriousness of Mr. Creek’s criminal history…’”
Additionally, Yandle gave attention to Creek’s possession of “ghost guns,” which are untraceable weapons.
“After Creek’s allocution, the district court returned to the concern that he was dangerous and beyond deterrence,” St. Eve wrote. “Dispatching Creek’s argument that he had not hurt anyone, the district court stated, ‘The headlines are riddled with situations and cases that are similar,’ referring to mass shootings.”
Yandle concluded that the combination of Creek’s criminal history, methamphetamine use, and his possession of explosive devices “justified a stiff sentence.”
Creek appealed Yandle’s eight year prison sentence, claiming his makeshift explosive was nothing more than a firework.
However, the appellate court held that a “destructive device” contains a metal casing, an adhesive seal, explosive powder, and a fuse. Creek’s device shared those four characteristics and was fully assembled, leading the court to conclude that the device was a bomb or similar device.
“We review that finding for clear error only,” St. Eve wrote. “There was none.”
“Creek’s device checked all those boxes, with the slight variation that tape, not epoxy, sealed his explosive.”
Creek also raised four sentencing challenges in his appeal. He first argued that Yandle mismanaged his criminal history score by considering offenses beyond 15 years ago. The appellate court disagreed, saying Yandle exercised discretion.
“The district court found that ‘the guidelines to some degree understate or underrepresent the seriousness of Mr. Creek’s criminal history.’ In particular, the district court mused that the age of Creek’s convictions - ’20 years ago, or what have you’ - only ‘makes a difference when there’s no relationship or any concern with the current offense conduct. But that’s not the case here.’ Citing “a continuum between that previous criminal history” and Creek’s current offense, the court determined an upward variance was appropriate. This explanation was sufficient,” St. Eve wrote.
St. Eve also addressed Creek’s argument that he did not hurt anyone, “preferring to collect guns rather than shoot them at people.”
Yandle responded that “this court will not bury its head in the sand when we got a person possessing silencers and ghost guns and explosive devices.”
The appellate court agreed, saying she identified the “potential for Creek to go from gun collector to gun user.” The judges concluded that she made “no error in tailoring Creek’s sentence to mitigate that risk.”
Creek also argued that Yandle skipped over his drug-use mitigation argument after he urged the court to impose a lesser sentence accounting for his “substance abuse disorder.”
“Drug abuse might have some mitigating impact in a case about money - fraud or the like - because the substance abuse disorder engenders financial desperation,” St. Eve wrote.
“The district court was entitled to find mitigation absent here,” she added. “Creek did not need to own guns to feed his habit, and (as the district court observed) his drug use makes the cache of illegal guns more worrisome.”
Lastly, the appellate court also rejected Creek’s complaint that the district court imposed an unreasonable sentence that was disproportionately severe for his conduct. St. Eve wrote that the need to protect the public from further crimes by Creek formed the foundation for his “above-guidelines sentence.”
“The district court’s explanation had a consistent theme: Creek is dangerous,” she wrote.