United States v. Fisher, No. 18-2765 (7th Cir. 2019)Annotate this Case
Indianapolis pharmacies were robbed of opioid pills at gunpoint. A pharmacy employee reported that a man in the store, Fisher, had been involved in a previous robbery. An officer approached Fisher, who pulled out a semiautomatic pistol and fled. Another officer apprehended Fisher. Officers found a pistol along Fisher’s escape route. Employees of three pharmacies identified Fisher. Fisher was convicted of Hobbs Act robbery, 18 U.S.C. 1951(a); brandishing a firearm during a crime of violence, section 924(c)(1)(A)(ii); and being a felon in possession of a firearm section 922(g)(1). The judge orally sentenced Fisher to 57 years plus one day in prison—one day more than the mandatory minimum sentence; ordered the forfeiture of any firearm involved in the crimes; and stated conditions of supervised release The text of the subsequent written judgment stated the conditions differently. Months later, the First Step Act, amended section 924(c) sentencing.
The Seventh Circuit affirmed, remanding for correction of the inconsistency between the oral sentence and the written judgment. The court rejected arguments that the district court erred by failing to ask if Fisher would like a jury trial regarding forfeiture and abused its discretion by using the phrase “psychoactive substances” in his supervised-release conditions; that his section 924(c) convictions were invalid because Hobbs Act robbery does not qualify as a crime of violence; that the written sentence is a nullity to the extent it conflicts with the oral sentence; and that these errors required a remand for new sentencing, applying the First Step Act.