United States v. Cook, No. 15-2529 (7th Cir. 2017)
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Robbing Community Financial Service Center in Milwaukee, Ferrell tackled the security guard, pointing his firearm at the guard’s face. Cook entered, wearing a mask, and approached the teller, who was in on the robbery and opened the safe. Cook took $337,100. Cook and Ferrell fled. Cook was charged with conspiracy to obstruct commerce by robbery; obstruction of commerce by robbery, 18 U.S.C. 1951(a) (Hobbs Act); and brandishing a firearm during the commission of a crime of violence, 18 U.S.C. 924(c)(1)(A)(ii). Cook pled guilty to counts two and three. The government dismissed count one. The government was to recommend a three‐level increase for a loss of over $250,000; a three‐level decrease for acceptance of responsibility; a two-level increase for causing a loss to a financial institution; and a two‐level increase for physically restraining a person. The agreement allowed Cook to oppose the enhancements. The PSR mirrored the plea agreement. Cook argued that the CFSC was not a financial institution and that imposing the physical‐restraint enhancement was impermissible double counting. The court rejected his arguments, applied the calculation included in the PSR, determined that the guidelines range for count two was 77-96 months and that count three carried a mandatory minimum of 84 months’ imprisonment, and imposed consecutive sentences of 60 months on count two and 84 months on count three. The Seventh Circuit affirmed, upholding the application of the enhancements.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 2529 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ANTHONY D. COOK, Defendant Appellant. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14 CR 226 — J.P. Stadtmueller, Judge. ____________________ ARGUED DECEMBER 8, 2016 — DECIDED MARCH 7, 2017 ____________________ Before MANION, KANNE, and HAMILTON, Circuit Judges. KANNE, Circuit Judge. Anthony Cook participated in an armed robbery of a Community Financial Service Center (“CFSC”) in Milwaukee. He pled guilty to obstruction of commerce by robbery and to brandishing a rearm during the commission of a crime of violence. Over Cook’s objec tion, the district court applied two enhancements to his sen tence: a 2 level increase for causing a loss to a nancial insti tution and a 2 level increase for physically restraining a per 2 No. 15 2529 son during a robbery. On appeal, Cook argues that the dis trict court erred in applying those enhancements. We disa gree, so we a rm. I. BACKGROUND On January 6, 2013, Cook and three others—Coleman Ferrell, Claudene Rutledge, and Vernell Staten—robbed a CFSC in Milwaukee. Ferrell entered the CFSC and tackled the security guard to the ground. Ferrell drew his rearm and pointed it at the guard’s face, threatening to shoot. Cook then entered wearing a mask and approached the teller, Rutledge, who was in on the robbery. Rutledge promptly opened the door to the safe, and Cook took approximately $337,100 in cash. He placed the cash in a plastic garbage bag. Cook and Ferrell then ed the scene with the cash in a geta way vehicle driven by Staten. On December 2, 2014, a grand jury returned a three count indictment against Cook. Count one charged him with conspiracy to obstruct commerce by robbery in violation of 18 U.S.C. §§ 1951(a) and 2. Count two charged him with ob struction of commerce by robbery in violation of 18 U.S.C. §§ 1951(a) and 2 (“Hobbs Act Robbery”). And count three charged him with brandishing a rearm during the commis sion of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Cook and the government entered into a plea agreement, in which Cook agreed to plead guilty to counts two and three, and the government agreed to dis miss count one. The plea agreement also included a recommended sen tencing guidelines calculation for count two. Cook and the government agreed that the base o ense level for the o ense No. 15 2529 3 charged in count two was 20 under U.S.S.G. § 2B3.1(a). They further agreed to recommend a 3 level increase under § 2B3.1(b)(7)(D) for a loss of over $250,000 and a 3 level de crease under §§ 3E1.1(a) and (b) for acceptance of responsi bility. The government also recommended two additional enhancements: (1) a 2 level increase under § 2B3.1(b)(1) for causing a loss to a nancial institution and (2) a 2 level in crease under § 2B3.1(b)(4)(B) for physically restraining a per son during a robbery. Both of these additional enhancements were included in the plea agreement’s calculation, but with the disclaimer that Cook “may oppose the government’s recommendation” as to these enhancements. (R. 35 at ¶¶ 17, 18.) The plea agreement thus recommended an adjusted total o ense level of 24 for count two. The probation o ce then completed a presentence inves tigation report (“PSR”), which included its own guidelines calculation. The probation o ce’s calculation mirrored the calculation in the plea agreement, recommending an adjust ed total o ense level of 24 for count two. At the sentencing hearing, Cook objected to the two addi tional enhancements included in the plea agreement and the PSR. First, he argued that the CFSC was not a nancial insti tution under § 2B3.1(b)(1). Second, he argued that imposing the physical restraint enhancement under § 2B3.1(b)(4)(B) would result in impermissible double counting of the same relevant conduct. The district court rejected each of these ar guments and applied the guidelines calculation included in the plea agreement and the PSR. Based on Cook’s criminal history category of IV and his adjusted o ense level of 24, the district court determined that the recommended guide lines range for count two was 77 to 96 months. The court fur 4 No. 15 2529 ther determined that count three carried a mandatory mini mum of 84 months’ imprisonment. The court sentenced Cook to a below guidelines sentence of 60 months on count two and 84 months on count three, to be served consecutive ly. Additionally, the court imposed a ve year term of su pervised release and ordered that Cook pay $337,100 in resti tution. II. ANALYSIS On appeal, Cook argues that the district court improperly applied the nancial institution and physical restraint en hancements. We review de novo the district court’s applica tion of the sentencing guidelines. United States v. Lewis, 842 F.3d 467, 476 (7th Cir. 2016). We begin with Cook’s argu ments regarding the nancial institution enhancement un der § 2B3.1(b)(1) and conclude with his arguments regarding the physical restraint enhancement under § 2B3.1(b)(4)(B). A. Financial Institution Enhancement Cook rst argues that the district court erred by applying an enhancement under § 2B3.1(b)(1), which provides for a 2 level enhancement “[i]f the property of a nancial institution or post o ce was taken.” He rst contends that the CFSC is not a nancial institution. Alternatively, he argues that the term “ nancial institution” is unconstitutionally vague. We begin with his rst argument. When interpreting a speci c provision of the sentencing guidelines, we “begin with the text of the provision and the plain meaning of the words in the text.” United States v. Hill, 645 F.3d 900, 907–08 (7th Cir. 2011) (quoting United States v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005)). As part of this analysis, we also consider the guideline’s application notes, No. 15 2529 5 which “are considered part of the guidelines rather than commentary on the guidelines.” United States v. Rabiu, 721 F.3d 467, 471 (7th Cir. 2013). “[A]n application note has ‘con trolling weight unless it is plainly erroneous or inconsistent with’ the text of the guideline it interprets.” United States v. Rollins, 836 F.3d 737, 742 (7th Cir. 2016) (quoting Stinson v. United States, 508 U.S. 36, 45 (1993)). The application notes to § 2B3.1, however, are silent as to the meaning of nancial in stitution. The government argues that the application notes to a di erent section—U.S.S.G. § 2B1.1, a separate guideline that permits an enhancement for larceny or other theft involving fraud or deceit of a nancial institution—are instructive here. Those application notes de ne “ nancial institution” in relevant part as “any state or foreign bank, trust company, credit union, insurance company, investment company, mu tual fund, savings (building and loan) association, union or employee pension fund … and any similar entity.” U.S.S.G. § 2B1.1 cmt. n.1. But because those application notes pertain to a di erent guideline, they are not binding on our interpre tation of § 2B3.1. Our plain meaning analysis is thus limited to the text of that guideline. Black’s Law Dictionary broadly de nes “ nancial institu tion” as “[a] business, organization, or other entity that manages money, credit, or capital, such as a bank, credit un ion, savings and loan association, securities broker or dealer, pawnbroker, or investment company.” Black’s Law Diction ary, 663 (8th ed. 2004). The CFSC seems to t this de nition. According to its website, “CFSC is a third generation, fami ly owned check cashing company with 175+ locations na tionwide.” CFSC, About, https://www.cfsc.com/about/. 6 No. 15 2529 Moreover, it o ers its customers a variety of nancial ser vices including check cashing, money transfers, money or ders, bill payments, and short term loans. (R. 53 2.) In fact, the term “ nancial” is in its name—Community Financial Service Center. Cook argues that this de nition of nancial institution is too broad, sweeping in far too many types of businesses within the enhancement’s scope. He thus argues in favor of an alternative de nition: a nancial institution is an entity that serves a depository function. To reach this conclusion, Cook considers the text of the guideline. Because the guide line also covers the robbery of a post o ce—which is a de pository of mail—Cook contends that all entities covered by the guideline must serve a similar depository function. A bank—which is a depository of money—is Cook’s paradig matic example of a nancial institution. We are unpersuaded by Cook’s de nition. He has cited no authority for it; nor could we nd any. Moreover, alt hough a post o ce is a depository, it is a depository of mail, not money: the functions of banks and post o ces are inher ently di erent. Accordingly, we reject limiting the de nition of “ nancial institution” to those entities that serve a deposi tory function. We also think it is unnecessary to delve into the speci c contours of the de nition of nancial institution here. We think it is enough to say that a business that o ers an array of nancial services, including check cashing, money trans fers, money orders, and loans, surely ts within the plain meaning of the term “ nancial institution.” We hold that the CFSC is a nancial institution under § 2B3.1(b)(1). No. 15 2529 7 Alternatively, Cook argues that the term “ nancial insti tution” is unconstitutionally vague, relying on our decision in United States v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (en banc) (invalidating § 4B1.2(a)(2)’s residual clause as un constitutionally vague). This week, the Supreme Court over turned that decision, holding that “the Guidelines are not subject to a vagueness challenge under the Due Process Clause.” Beckles v. United States, 580 U.S. ___, No. 15 8544, slip op. at 5 (Mar. 6, 2017). Cook’s vagueness argument is thus without merit. B. Physical Restraint Enhancement Cook next argues that the district court erred by applying an enhancement under § 2B3.1(b)(4)(B), which provides for a 2 level enhancement “if any person was physically re strained to facilitate commission of the o ense or to facilitate escape.” Here, the district court applied this enhancement because of the actions of Cook’s accomplice, Ferrell, who tackled the security guard and held him at gunpoint. To start, Cook doesn’t dispute that Ferrell’s conduct con stituted a physical restraint. “[T]he fundamental characteris tic of the physical restraint enhancement is to punish one for depriving a person of his freedom of physical movement … .” United States v. Black, 636 F.3d 893, 900 (7th Cir. 2011). By tackling the security guard and pointing a gun at his face, Ferrell clearly deprived the guard of his freedom of physical movement. That is exactly the type of conduct that the phys ical restraint enhancement covers. See id. Cook also doesn’t dispute that Ferrell’s physical restraint was attributable to him as relevant conduct under § 1B1.3(a)(1)(B). Ferrell’s act constituted “relevant conduct” 8 No. 15 2529 attributable to Cook because it was clearly within the scope of, in furtherance of, and reasonably foreseeable in connec tion with their joint act of robbery. See U.S.S.G. § 1B1.3(a)(1)(B). Instead, Cook argues that the district court erred by im permissibly double counting Ferrell’s act of physical re straint, which resulted in the imposition of a longer sentence. In the sentencing context, double counting refers to the dis trict court’s use of the same conduct more than once to in crease a defendant’s sentence. United States v. Vizcarra, 668 F.3d 516, 519 (7th Cir. 2012). Double counting claims come in two varieties. First, a defendant may claim that the district court used the same conduct to form the factual basis for an element of the underlying o ense and to support an en hancement. Second, a defendant may claim that the district court used the same conduct to support multiple enhance ments. Id. Cook’s claim is of the rst variety. In short, he ar gues that the district court impermissibly double counted Ferrell’s restraint of the guard as both an element of the un derlying o ense of Hobbs Act Robbery and as conduct giv ing rise to the 2 level enhancement under § 2B3.1(b)(4)(B). Cook’s argument, however, is a nonstarter. He cites two of our cases to support his argument: (1) United States v. Senn, 129 F.3d 886 (7th Cir. 1997), and (2) United States v. Tay lor, 620 F.3d 812 (7th Cir. 2010). In those cases, we applied a general rule that “a characteristic shared by all instances of a crime is re ected in the base o ense level for the crime and therefore is unavailable for use as an enhancement.” Taylor, 620 F.3d at 815; see also Senn, 129 F.3d at 897 (holding that impermissible double counting occurs “if the o ense itself necessarily includes the same conduct as the enhancement”). No. 15 2529 9 We followed that general rule in other cases. See, e.g., United States v. Bell, 598 F.3d 366, 372 (7th Cir. 2010) (“Impermissi ble double counting occurs when … the same underlying facts that establish an element of the base o ense are used to justify an upward enhancement.”); United States v. Rodgers, 610 F.3d 975, 978 (7th Cir. 2010) (citing Senn, 129 F.3d at 897 and Bell, 598 F.3d at 372–73 for the same proposition). But in 2012, we reversed course, holding that “the same conduct may determine the base o ense level and also trig ger cumulative sentencing enhancements and adjustments unless the text of the applicable guideline explicitly states otherwise.” Vizcarra, 668 F.3d at 525. We therefore clari ed that “there is no background rule against double counting in the guidelines.” Id. Instead, double counting is presumed permissible as a “mechanism employed by the guidelines in part to re ect the seriousness of the o ense.” United States v. Lo redi, 718 F.3d 991, 994 (7th Cir. 2013). Any language in our earlier cases contradicting our holding in Vizcarra is no longer good law: Cook’s reliance on Senn and Taylor is mis placed. Even assuming that the district court double counted Ferrell’s restraint of the guard as both an element of the un derlying o ense of Hobbs Act Robbery and for purposes of the enhancement under § 2B3.1(b)(4)(B), a premise the gov ernment contests, the court committed no error.1 Again, we 1 We note that double counting may not have even occurred here. As we discussed in Taylor, in a portion of the opinion that likely survived our decision in Vizcarra, it is possible to commit federal robbery without an act of physical restraint. 620 F.3d at 815–16. Therefore, physical restraint is not an element of federal robbery. Although Taylor involved federal (continued…) 10 No. 15 2529 presume that this counting was permissible absent an indica tion to the contrary in the guidelines. Because § 2B3.1(b)(4)(B) and its application notes contain no explicit prohibition against double counting the act of physical re straint, the presumption of permissibility cannot be over come. The district court properly applied the physical restraint enhancement. III. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s judgment and sentence. (…continued) bank robbery under 18 U.S.C. § 2113(a) and not specifically Hobbs Act Robbery, those crimes overlap to a significant degree. See United States v. Starks, 472 F.3d 466, 470 (7th Cir. 2006). Most importantly, they contain the same use of force requirement, which is the element of federal rob bery that Cook argues is synonymous with physical restraint.
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