Unted States v. Bey, No. 13-1163 (7th Cir. 2014)

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Bey and three others conspired to rob Associated Bank, where one of them (Thompson) worked. Bey gave Schoenhaar a pellet gun for use in the robbery and waited in a getaway car with Gregory, while Schoenhaar entered the bank, displayed the gun, and demanded money. Thompson and a (coerced) coworker retrieved $221,000 from the vault and gave the money to Schoenhaar, who led the two to a bathroom while pointing the gun and saying he would kill them if they left the bathroom. He left the bank, but found that Bey and Gregory had gotten cold feet and fled. All four conspirators were apprehended, and charged with bank robbery and with conspiracy to commit that offense, 18 U.S.C. 371, 2113(a). Bey, entered an “Alford plea,” maintaining his innocence, but hoping for a lighter sentence. The district judge imposed a 92‐month sentence. After his lawyer advised the court that he could find no nonfrivolous ground for appealing the sentence, the Seventh Circuit allowed him to withdraw and dismissed the appeal.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 13 1163 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JAMES BEY, Defendant Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 CR 107 4 Charles R. Norgle, Judge. ____________________ SUBMITTED MARCH 19, 2014 DECIDED APRIL 10, 2014 ____________________ Before POSNER, KANNE, and TINDER, Circuit Judges. POSNER, Circuit Judge. James Bey and three others con spired to rob the Waukegan, Illinois, branch of Associated Bank. They chose that location because one of the four, La toya Thompson, worked there and as an insider could make a unique contribution to the crime. Bey gave David Schoen haar, Jr. (another coconspirator) a pellet gun for use in the robbery and waited in a nearby getaway car with the final coconspirator, Trevor Gregory, while Schoenhaar entered 2 No. 13 1163 the bank, displayed the gun, and demanded money from the vault. Thompson and a (coerced) coworker retrieved some $221,000 from the vault and gave the money to Schoenhaar, who led the two to a bathroom while pointing the gun at them and saying he d kill them if they left the bathroom. He then left the bank only to discover that Bey and Gregory had gotten cold feet and fled. All four conspirators were ap prehended, and charged with bank robbery and with con spiracy to commit that offense. 18 U.S.C. §§ 371, 2113(a). In the district court Bey, the only defendant before us in this appeal, entered an Alford plea on each charge. That s a plea of guilty by a defendant who maintains his innocence, but, perhaps thinking that if he goes to trial he ll be found guilty (and not be able to get the judgment overturned on appeal), because there s a mountain of evidence against him, pleads guilty in hopes of obtaining a lighter sentence. As ex plained in North Carolina v. Alford, 400 U.S. 25, 37 (1970), while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his par ticipation in the acts constituting the crime. Nor can we per ceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a de fendant intelligently concludes that his interests require en try of a guilty plea and the record before the judge contains strong evidence of actual guilt. The district judge gave the defendant concurrent sen No. 13 1163 3 tences of 92 months for the robbery and 60 months for the conspiracy so effectively a 92 month sentence. Because the defendant doesn t want to withdraw his guilty plea, the ap peal challenges only the sentence. His lawyer advises us that he can find no nonfrivolous ground for appealing from the judgment, and so asks us to let him withdraw from repre senting the defendant, in accordance with the procedure au thorized by Anders v. California, 386 U.S. 738, 744 (1967). The defendant disagrees that he has no nonfrivolous ground for appealing. We note parenthetically that the terms frivolous and nonfrivolous are misleading in this context. Most claims or arguments held to be frivolous are not silly or laughable, as the word implies, but simply so clearly blocked by statute, regulation, binding or unquestioned precedent, or some o ther authoritative source of law that they can be rejected summarily. And since we re discussing word usage, we take the op portunity to question another bit of legal jargon. In innu merable cases in which a criminal defendant s lawyer files an Anders brief our court states, usually as a prelude to granting the lawyer s motion to withdraw and dismissing the appeal, that as long as the lawyer s brief is facially ade quate we ll confine analysis to the issues discussed in the brief and in the defendant s response (if any) to it. See, e.g., United States v. Vallar, 635 F.3d 271, 289 (7th Cir. 2011); United States v. Maeder, 326 F.3d 892, 893 (7th Cir. 2003) (per cu riam). By facially adequate we mean that the brief appears to be a competent effort to determine whether the defendant has any grounds for appealing. That appearance reassures us that the issues discussed in the brief are the only serious 4 No. 13 1163 candidates for appellate review and so the only ones we need consider. We should say this rather than recite a for mula facially adequate unlikely to be intelligible to the prisoner to whom the Anders order is addressed; with his lawyer having been allowed to withdraw, the prisoner may have difficulty understanding the what and why of the or der. We should say for example: Counsel has submitted a brief that explains the nature of the case and addresses the issues that a case of this kind might be expected to involve. Because the analysis in the brief appears to be thorough, we limit our review to the subjects that counsel has discussed, plus any additional issues that the defendant, disagreeing with counsel, believes have merit. See United States v. Wag ner, 103 F.3d 551, 553 (7th Cir. 1996). Turning at last to the merits, we begin with the strongest seeming objection the defendant could make to his sentence for robbery (the sentence that determined the overall length of his prison term) that he wasn t one of the robbers. He neither entered the bank nor even participated in the get away; he may have sped away from the bank before the rob bery was under way. And as he wasn t one of the robbers, why should he have been sentenced for robbery of the bank as well as for conspiring to rob it? The answer is that he ad mits having conspired to commit the bank robbery, and as a conspirator he is liable under the doctrine of Pinkerton v. United States, 328 U.S. 640, 647 (1946), for crimes committed by his co conspirators in furtherance of the conspiracy, and so for the robbery. Besides, the indictment to which he pleaded guilty had also charged him with aiding and abet ting the robbery an independent ground for the govern ment s charging him as a principal. 18 U.S.C. § 2113(a). No. 13 1163 5 The other objections that might be made to the sentence but that Bey s lawyer thinks could not possibly persuade us involve the judge s calculation of the guidelines sentencing range. The judge determined Bey s total offense level to be 31 and his criminal history category to be IV, yielding a guidelines range of 151 to 188 months (making the sentence that the judge imposed fall far below the bottom of the range). The range was for the conspiracy and robbery charges together, because they were grouped for purposes of calculating the range, as required by U.S.S.G. § 3D1.2(b), which requires grouping when the counts [of which the de fendant was convicted] involve[d] the same victim and two or more acts or transactions connected by a common crimi nal objective or constituting part of a common scheme or plan. Among the other factors that generated Bey s high of fense level were that Schoenhaar had brandished (displayed) a dangerous weapon, U.S.S.G. § 2B3.1(b)(2)(E), and had physically restrained coconspirator Thompson s innocent coworker. § 2B3.1(b)(4)(B). These factors added five levels to Bey s offense level. In addition, rejecting the probation ser vice s recommendation for a 2 level reduction for the defen dant s accepting responsibility for his crimes, § 3E1.1(a), the judge instead added two offense levels for obstruction of jus tice, § 3C1.1, on the basis of evidence that the defendant had urged a potential witness to ignore a subpoena served by the government to testify at the trial. The judge gave Bey two additional two level enhancements, one for conspiring to rob a financial institution, U.S.S.G. § 2B3.1(b)(1), the other for the amount of money taken in the robbery. § 2B3.1(b)(7)(c). And he refused to give the defendant a 2 level reduction in his offense level as a minor participant in the conspiracy. 6 No. 13 1163 § 3B1.2(b). We note regarding the increases in total offense level for physically restraining the bank employee and brandishing a dangerous weapon that the weapon needn t be lethal as long as it closely resembles a lethal weapon, U.S.S.G. §§ 1B1.1, Application Note 1(D); 2B3.1(b)(2)(E); United States v. Hart, 226 F.3d 602, 607 (7th Cir. 2000); United States v. Al len, 516 F.3d 364, 375 76 (6th Cir. 2008) which pellet guns often do (see the photo below), especially ones used in a rob bery, where they would lose most of their efficacy if they were recognized as mere airguns. No. 13 1163 7 Not that pellet guns are harmless unless aimed at small rodents. People have been killed by them. See, e.g., Star Ledger Editorial Board, Pellet Guns Are Weapons Too, Jan. 9, 2009, http://blog.nj.com/njv_editorial_page/2009/01/ pellet_guns_are_weapons_too.html (visited April 10, 2014). Bank tellers have good reason to fear them. In opposing the increase in his offense level for physi cally restraining the bank employee, Bey argues that he never anticipated that Schoenhaar would brandish the gun or physically restrain anyone. He says he thought that given Thompson s participation the robbery would be an inside job and not perturb the bank s customers or employees. But he knew that Schoenhaar had taken the gun into the bank he d given it to him for that purpose. And he had to know that since the robbery would be committed while the bank was still open for business, employees and customers would be present and Schoenhaar might well use the gun to herd them to somewhere in the bank in which they could neither interfere with the robbery nor escape. He pointed the gun at Thompson s coworker (who was not an accomplice in the robbery, unlike Thompson), herded her into the bathroom, and threatened to kill her if she left it. See United States v. Taylor, 620 F.3d 812, 813, 815 (7th Cir. 2010); United States v. Carter, 410 F.3d 942, 954 (7th Cir. 2005). Such a use of the gun was foreseeable to the defendant, making him culpable. United States v. Dorsey, 209 F.3d 965, 967 98 (7th Cir. 2000). As for whether his encouraging a potential witness (his girlfriend) to ignore a trial subpoena was an obstruction of justice, he argues that he told her to ignore it only because he thought the government had dropped the charges against him. He presented no evidence in support of this implausi 8 No. 13 1163 ble claim not even an affidavit (which would have been some evidence). Furthermore, the subpoena had not been quashed, so he had to know that he was telling her to violate a court order. So the finding of obstruction of justice stands, and it greatly undermines his claim to be entitled to a sen tencing discount for acceptance of responsibility. Not that an increase in offense level for obstruction of justice can never coexist with an acceptance of responsibility discount. U.S.S.G. § 3E1.1, comment 4, says that conduct resulting in an enhancement ¦ ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 [obstruction of jus tice] and 3E1.1 [acceptance of responsibility] may apply. But there has to be evidence of contrition, see, e.g., United States v. Mayberry, 272 F.3d 945, 947, 949 50 (7th Cir. 2001); United States v. Salazar Samaniega, 361 F.3d 1271, 1278 80 (10th Cir. 2004), and not just a plea of guilty, which is often, perhaps typically, opportunistic. The defendant expects a lighter sentence if he pleads guilty than if he s convicted af ter a trial, and so if he doesn t anticipate acquittal (and cer tainly Bey could not have anticipated being acquitted had he chosen to be tried) he might as well plead guilty, whether or not he accepts responsibility in any meaningful sense for having committed the crime. And finally Bey has no plausible claim for a minor participant reduction in his guidelines range. He insists that he is less culpable than Thompson (who worked at the bank and assisted in the robbery), Schoenhaar (the principal ex ecutor of the robbery), and Gregory (Thompson s boyfriend and the driver of the getaway car). Actually he s as culpable No. 13 1163 9 as Schoenhaar and more culpable than the others: he re cruited Schoenhaar to execute the robbery and supplied him with the pellet gun that Schoenhaar used in the robbery. See, e.g, United States v. McKee, 389 F.3d 697, 700 (7th Cir. 2004); United States v. Nichols, 151 F.3d 850, 854 (8th Cir. 1998); United States v. Lowery, 60 F.3d 1199, 1201 02 (6th Cir. 1995). Given the defendant s age (62) and poor health, a sen tence of 92 months almost eight years is admittedly stiff. But it is so far below the bottom of the guidelines range that it cannot be thought excessive. We are pleased to see that the district judge sentenced the defendant as far below the guidelines range as he did in order to avoid imposing a sen tence that in the circumstances would be a sentence of life, citing a recent opinion of this court expressing concern about sentences so long that they are likely to crowd the prisons with the elderly. United States v. Craig, 703 F.3d 1001, 1002 04 (2012) (per curiam) (concurring opinion); see also United States v. Johnson, 685 F.3d 660, 661 62 (7th Cir. 2012). The motion of the defendant s lawyer to withdraw is granted and the appeal dismissed.

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