United States v. Williams, No. 18-3318 (7th Cir. 2020)
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Two men entered a Sprint store with a gun, threatened and zip‐tied all witnesses, grabbed merchandise, and fled the store in two vehicles. Williams, a getaway driver, was indicted for obstruction of commerce by robbery, 18 U.S.C. 1951. Judge Bruce presided over his jury trial. Williams was convicted. Months later, it became public that Judge Bruce had engaged in ex parte communications with members of the U.S. Attorney’s Office. All criminal cases assigned to Judge Bruce were reassigned. Judge Darrow presided over Williams's sentencing hearing and sentenced him to 180 months’ imprisonment. The Seventh Circuit affirmed. Judge Bruce did not violate Williams’s due process rights on these facts. Although Judge Bruce’s conduct created an appearance of impropriety violating the federal recusal statute, there is no evidence of actual bias in this case to justify a new trial. Williams does not qualify as a career offender, but the district court’s finding otherwise was not plain error. Judge Darrow thoroughly considered the section 3553(a) factors, made clear that she would impose the same sentence even if the career offender provision did not apply, and explained her reasons for that position. There was sufficient evidence regarding the use of a firearm;Al the district court did not err in applying a firearm enhancement.
The court issued a subsequent related opinion or order on February 13, 2020.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 18 3318 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RANDY WILLIAMS, Defendant Appellant. ____________________ Appeal from the United States District Court for the Central District of Illinois. No. 2:17 cr 20049 — Sara Darrow, Chief Judge. ____________________ ARGUED DECEMBER 6, 2019 — DECIDED FEBRUARY 11, 2020 ____________________ Before ROVNER, BRENNAN, and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. On July 28, 2016, two men entered a Sprint store with a gun, threatened and zip tied all witness es, grabbed some merchandise, and fled the store in two ve hicles. Randy Williams was one of the getaway drivers. He was caught and indicted for obstruction of commerce by robbery under 18 U.S.C. § 1951. 2 No. 18 3318 Williams pleaded not guilty. Judge Colin S. Bruce presid ed over his jury trial, and, on June 14, 2018, the jury found Williams guilty. A few months later, it became public that Judge Bruce had engaged in ex parte communications with members of the United States Attorney’s O ce for the Cen tral District of Illinois (the “O ce”). As a result, all criminal cases assigned to Judge Bruce were reassigned to other judg es. Williams’s case was reassigned to now Chief Judge Dar row who presided over his sentencing hearing and sen tenced him to 180 months’ imprisonment. Williams now appeals his conviction and sentence. He argues that Judge Bruce’s ex parte communications with the O ce violated his due process rights and the federal recusal statute, warranting a new trial. We conclude that Judge Bruce did not violate Williams’s due process rights on the facts before us. And although Judge Bruce’s conduct created an appearance of impropriety violating the federal recusal statute, there is no evidence of actual bias in this case to jus tify a new trial. As to his sentence, Williams contends that he is entitled to a new sentencing hearing because Chief Judge Darrow improperly found that he was a career o ender and was subject to a firearm enhancement. Williams does not qualify as a career o ender, but the district court’s finding otherwise was not plain error. Chief Judge Darrow thoroughly consid ered the § 3553(a) factors, made clear that she would impose the same sentence even if the career o ender provision did not apply, and explained her reasons for this position. Be cause there was su cient evidence regarding the use of a firearm during the crime, we also hold that the district court did not err in applying a firearm enhancement. We a rm his No. 18 3318 3 conviction and sentence. We also grant Williams’s unop posed motion to supplement the record on appeal. I. Background In June 2018, Judge Bruce presided over Williams’s trial where a jury found him guilty of robbery. At trial, Assistant United States Attorneys Elham Peirson and Ryan Finlen rep resented the government with the assistance of paralegal Staci Klayer. Before his appointment to the district court, Judge Bruce had worked as a federal prosecutor in the Office for twenty four years and, not surprisingly, maintained friendships with some of his former colleagues while on the bench. In August 2018, a newspaper reported that Judge Bruce had engaged in ex parte communications with the Office during the criminal trial of United States v. Nixon, a case over which Judge Bruce presided. In those emails, Judge Bruce criticized the prosecutor (Peirson) as being “entirely unexperienced” turning a “slam dunk” case into a “60 40” for the defendant. As a result of the news coverage and the aftermath, then Chief Judge Shadid removed Judge Bruce from all cases in volving the Office. The Judicial Council of the Seventh Circuit appointed a Special Committee to review the judicial misconduct com plaints filed against Judge Bruce based on his ex parte com munications with the Office. The Special Committee re quested and reviewed documents, conducted interviews, and held a hearing at which Judge Bruce testified. In re sponse to the Special Committee’s document request, the Of fice conducted a review to determine whether other ex parte communications existed. It subsequently disclosed to the 4 No. 18 3318 Special Committee approximately 1,230 communications be tween Judge Bruce and members of the Office. The Special Committee determined that, although many of them ap peared to be innocuous, approximately 100 of these commu nications constituted potential ex parte communications about cases pending before Judge Bruce. Some of them con cerned warrant approvals, successful appeals in one of Judge Bruce’s cases, scheduling matters, or a defendant’s conduct on bond, often with Klayer. In others, Judge Bruce addressed former colleagues, including Klayer, by nicknames and con gratulated them on favorable outcomes. And in some com munications, Judge Bruce reassured former colleagues after they made filing mistakes. In one instance, he stated “My bad. You’re doing fine. Let’s get this thing done.” In another, he suggested that Klayer call the First Assistant “and advise” while noting that luckily “they have an understanding judge who doesn’t get angry.” None of these communications per tained to Williams’s case. The Special Committee then submitted to the Judicial Council a report explaining its findings and recommenda tions, which the Judicial Council adopted. The Special Committee saw “no evidence and received no allegation that Judge Bruce’s conduct or ex parte communications impacted any of his rulings or advantaged either party.” In re Com plaints Against Dist. Judge Colin S. Bruce, Nos. 07 18 90053, 07 18 90067 (7th Cir. Jud. Council May 14, 2019). “And with the exception of the Nixon related and appeal related emails,” the Special Committee saw “no evidence of Judge Bruce dis cussing the merits of pending cases with the Office ex parte.” Id. The Judicial Council publicly reprimanded Judge Bruce and kept him unassigned from any cases involving the Of fice until September 1, 2019. No. 18 3318 5 Months before the Special Committee issued its report, Williams’s case was reassigned to Chief Judge Darrow, who presided over his sentencing hearing. Williams and his counsel reviewed Williams’s revised presentence investiga tion report (“PSR”) and had no objections to it. The PSR cal culated a total offense level of 32 and a criminal history cate gory of VI, noting that “as the defendant is a career offender, a criminal history category of VI shall apply pursuant to USSG §4B1.1(b).” The advisory Guidelines range was calcu lated at 210 to 240 months, and both sides agreed to the dis trict court’s recitation of the Guidelines provisions. Wil liams’s counsel never requested a below Guidelines sen tence; he requested a sentence at the bottom of the Guide lines range. At sentencing, Chief Judge Darrow considered the § 3553(a) factors. She noted that this offense is “as serious as it gets.” The offense involved terrorizing individuals at gun point with explicit threats and physically restraining them with zip ties just to steal cellphones. The district court de termined that the following enhancements were adequate: 20 levels for the robbery, 6 levels for the firearm, 2 levels for physically restraining the victims, and 1 level for the value of stolen property. For his role in the offense, the district court determined that a role adjustment was not appropriate. Williams fully participated in the crime and knew what the other partici pants were doing inside the store. Although Williams’s con duct was not as culpable as the person who used the gun during the robbery, he was more culpable than the person who merely loaned them the car. 6 No. 18 3318 The district court next considered Williams’s personal history and characteristics. The district court noted that he is a career offender because he has prior convictions for deliv ery of a controlled substance and aggravated sexual abuse. She stated that the resulting Guidelines range may be too high given his age and criminal record. But she concluded that Williams still represents a “very strong recidivism con cern” in part because of his criminal history. “[T]here’s a trend here of more serious criminal conduct” over time “and this is the most serious.” Williams had also violated every term of supervised release, except the most recent one. Giv en her duty to protect the public, a hope that a longer sen tence would deter him from committing future crimes, and his role in this serious offense, the district court sentenced him to 180 months’ imprisonment. In imposing a below Guidelines sentence, the district court expressly stated that she would impose the same sentence even if the career of fender provision did not apply. Williams now appeals both his conviction and sentence. II. Discussion A. Ex Parte Communications Williams argues that Judge Bruce’s ex parte communica tions with the Office violated both his due process rights and the federal recusal statute, warranting a new trial. Although none of the ex parte communications concerned Williams’s case, some of them were either about or involved Peirson, the Office’s Assistant United States Attorney who prosecut ed Williams’s case, and Klayer, the Office’s paralegal assist ing with his trial. Because Judge Bruce’s ex parte communi cations were disclosed after Williams’s trial, we review his No. 18 3318 7 claims de novo. See United States v. Atwood, 941 F.3d 883, 885 (7th Cir. 2019). 1. Due Process Clause The Due Process Clause guarantees litigants an impartial judge and a fair trial. See Bracy v. Gramley, 520 U.S. 899, 904– 05 (1997). Courts presume that judges are honest, upright individuals who rise above biasing influences. Franklin v. McCaughtry, 398 F.3d 955, 959 (7th Cir. 2005). But that pre sumption is rebuttable. Id. at 960. Whether a judge should be recused is an objective inquiry; courts do not ask “whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009). This does not require proof of actual bias, “though actual bias, if disclosed, no doubt would be grounds for appropri ate relief.” Id. at 883. “[B]ad appearances alone do not re quire disqualification.” Del Vecchio v. Ill. Dep’t of Corr., 31 F.3d 1363, 1372 (7th Cir. 1994) (en banc); see also Suh v. Pierce, 630 F.3d 685, 691–92 (7th Cir. 2011) (rejecting the argument that recusal is required “in the absence of any possibility of actual bias—that is, based solely on how the situation might have ‘appeared’ to an outside observer.”). To prove a dis qualifying bias, there must be evidence of “either actual bias, or a possible temptation so severe that we might presume an actual, substantial incentive to be biased.” Del Vecchio, 31 F.3d at 1380. For the latter, courts must determine whether “the probability of actual bias on the part of the judge or de cisionmaker is too high to be constitutionally tolerable.” Rip po v. Baker, 137 S. Ct. 905, 907 (2017) (per curiam) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). 8 No. 18 3318 Courts have identified a limited set of circumstances that meet this standard. First, actual bias is disqualifying. See, e.g., Franklin, 398 F.3d at 961–62 (finding actual bias where there was evidence that the judge determined that defendant was guilty before trial). Second, “there is an impermissible risk of actual bias when a judge earlier had significant, personal in volvement as a prosecutor in a critical decision regarding the defendant’s case.” Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016). Third, a judge is disqualified when the judge has a financial incentive in the case’s outcome. See, e.g., Rippo, 137 S. Ct. at 906; Caperton, 556 U.S at 877–78; Bracy, 520 U.S. at 906, 909; Bracy v. Schomig, 286 F.3d 406, 413, 419 (7th Cir. 2002) (en banc). Lastly, a judge should recuse himself when the judge becomes “personally embroiled” with a litigant. Mayberry v. Pennsylvania, 400 U.S. 455, 465–66 (1971); see also Del Vecchio, 31 F.3d at 1373–75. This case does not fit into these buckets. Williams has not provided any evidence of actual bias. To the contrary, the Special Committee found “no evidence and received no alle gation that Judge Bruce’s conduct or ex parte communica tions impacted any of his rulings or advantaged either par ty.” It is undisputed that none of the ex parte communica tions concerned Williams’s case. Nor is there any evidence that Judge Bruce had a pecuniary interest in the outcome, previously worked on the case as a prosecutor, or became “personally embroiled” with the parties. Williams’s only evidence is an exchange between Judge Bruce and Peirson that occurred before voir dire, and on the record in open court regarding pre trial evidentiary issues. MS. PEIRSON: So I just wanted to let the Court know … I’m not trying to be sneaky. It’s just not something No. 18 3318 9 that I thought about until I looked—examined his statement more closely. He does make that statement, and that’s not an issue for purposes of— THE COURT: I have never found you ever to be sneaky. If anything, you are overly cautious. MS. PEIRSON: Thank you, Your Honor. THE COURT: “Sneaky” is definitively not a word I would use with you. Williams contends this is proof of Judge Bruce’s personal bi as in favor of the government because he “personally vouch[ed] for [the prosecutor’s] integrity.” This argument fails. There is nothing improper about this exchange, which occurred before both parties, on the record, in open court, and outside the presence of the jury. Williams also argues that there is a due process violation here because, although the ex parte communications were about other cases, they expose a preexisting relationship be tween Judge Bruce and specific members of the Office who were prosecuting Williams. He focuses on Judge Bruce’s friendship with Klayer. But a preexisting relationship alone does not create a due process violation. Del Vecchio, 31 F.3d at 1372. Judges are humans and will bring their experiences to the bench. “[N]ot all temptations are created equal. We expect—even demand—that judges rise above these poten tial biasing influences, and in most cases we presume judges do.” Id. Williams has presented no evidence to rebut this presumption. Although Klayer was in the courtroom during Williams’s trial, there is no evidence that she had any influ ence in his case or that Judge Bruce and Klayer had any ex parte communications about Williams’s case. 10 No. 18 3318 The cases Williams cites to the contrary are factually dis tinguishable. Most of them involve evidence of actual bias or a strong risk of actual bias. See Rivera v. Superintendent Houtzdale SCI, 738 F. App’x 59, 65–66 (3d Cir. 2018) (stating that evidence of judge’s personal relationship with the uncle of the victim and potential interference with judicial case as signment create a strong risk of actual bias); Barney v. Con way, 730 F. Supp. 2d 264, 279–80 (W.D.N.Y. 2010) (finding that defendant presented “clear and uncontroverted docu mentary proof” of an actual bias that predetermined the case outcome); Abdygapparova v. State, 243 S.W.3d 191, 208–10 (Tex. App. 2007) (finding that the judge’s written communi cations with the state regarding potential jurors, defendant’s voir dire questions, and case presentation were strong evi dence of bias and partiality); In re Paternity of B.J.M., 925 N.W.2d 580, 588 (Wis. Ct. App. 2019) (finding that accepting a litigant’s Facebook “friend” request after an evidentiary hearing but before entering a ruling created a great risk of actual bias), review granted, Miller v. Carroll, 933 N.W.2d 489 (Aug. 14, 2019). Another case involved ex parte communica tions regarding the case’s substance. See State v. Bard, 181 A.3d 187, 200–01 (Me. 2018) (per curiam). And in State v. Daigle, 241 So. 3d 999 (La. 2018) (per curiam), the judge’s ac tions violated the Code of Criminal Procedure and he erro neously denied having a social media relationship with the victim’s widow, among other things, warranting recusal. We conclude that Judge Bruce did not violate Williams’s due process rights by presiding over his trial. 2. Federal Recusal Statute Pursuant to 28 U.S.C. § 455(a), “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself No. 18 3318 11 in any proceeding in which his impartiality might reasona bly be questioned.” The statute is intended to avoid even an appearance of impartiality. Liljeberg v. Health Servs. Acquisi tion Corp., 486 U.S. 847, 865 (1988). Statutes like this one “provide more protection than due process requires.” See Williams, 136 S. Ct. at 1908 (quoting Caperton, 556 U.S. at 890); United States v. Herrara Valdez, 826 F.3d 912, 919 n.1 (7th Cir. 2016). Here, the government concedes that there has been a statutory violation; a reasonable person might question Judge Bruce’s impartiality based on the post judgment dis closure of the communications between him and the Office. The government argues, however, that the error was harm less. To determine whether an error is harmless, we look to the three factors the Supreme Court articulated in Liljeberg: (1) “the risk of injustice to the parties in a particular case,” (2) “the risk that the denial of relief will produce injustice in other cases,” and (3) “the risk of undermining the public’s confidence in the judicial process.” Liljeberg, 486 U.S. at 864; see also Atwood, 941 F.3d at 885; Williamson v. Ind. Univ., 345 F.3d 459, 464 (7th Cir. 2003). Not every violation of § 455(a) warrants a drastic reme dy, like a new trial. Liljeberg, 486 U.S. at 862. We have been cautious about granting new trials based on the mere ap pearance of impropriety. See In re Bergeron, 636 F.3d 882, 883 (7th Cir. 2011) (“Actual bias would entitle the losing party to a new trial, but the mere appearance of bias would not ….”); see also United States v. Betts Gaston, 860 F.3d 525, 534–36 (7th Cir. 2017). 12 No. 18 3318 We recently decided one case regarding the implications of Judge Bruce’s communications.* In United States v. Atwood, Judge Bruce sentenced Atwood after he pleaded guilty to three counts of federal drug crimes. On appeal, Atwood ar gued that Judge Bruce’s § 455(a) violation entitled him to re sentencing by a different judge. 941 F.3d at 885. Like here, none of the ex parte communications concerned Atwood’s case. Applying the Liljeberg factors, we identified a real risk of unfairness to Atwood, a risk of injustice to other litigants in future cases, and risk of harm to the public’s confidence in the impartiality of the judiciary if we affirmed Atwood’s sentence. Id. at 885–86. Based on the facts in that case, we held that Judge Bruce’s failure to recuse himself from sen tencing Atwood did not constitute harmless error and re manded the case for resentencing. Id. at 886. A key difference exists between this case and Atwood. In Atwood, the defendant entered a guilty plea, and Judge Bruce presided over his sentencing hearing. Here, Williams plead * There are pending post judgment motions before the district court in several other cases regarding Judge Bruce’s conduct. See United States v. Gmoser, No. 2:14 cr 20048 JES 4 (C.D. Ill. Oct. 2, 2018), ECF No. 309; United States v. Nixon, No. 2:15 cr 20057 (C.D. Ill. Oct. 25, 2018), ECF No. 173; United States v. Lopez, No. 2:16 cr 20004 (C.D. Ill. May 15, 2019), ECF No. 68; United States v. Brown, No. 2:14 cr 20007 (C.D. Ill. July 9, 2019), ECF No. 88; United States v. Vasquez, No. 2:17 cr 20003 (C.D. Ill. Jan. 17, 2019), ECF No. 52. There are also several pending motions under § 2255. See Thomas v. United States, No. 2:18 cv 02032 (C.D. Ill. Dec. 21, 2018), ECF No. 10; Shannon v. United States, No. 2:18 cv 02233 (C.D. Ill. Jan. 21, 2019), ECF Nos. 11–12; Liggins v. United States, No. 2:19 cv 02129 (C.D. Ill. May 16, 2019), ECF No. 1; Parker v. United States, No. 2:19 cv 2318 (C.D. Ill. Nov. 25, 2019), ECF No. 1; Collins v. United States, Nos. 2:19 cv 02339 (C.D. Ill. Dec. 20, 2019), ECF No. 1; Farrington v. United States, No. 2:19 cv 2314 (C.D. Ill. Jan. 3, 2020), ECF No. 9. No. 18 3318 13 ed not guilty, and a jury found him guilty. Moreover, Judge Bruce did not preside over Williams’s sentencing hearing. This distinction matters because judges generally have more discretion over sentencing than the outcome of a jury trial. As we noted in Atwood, “‘[t]he open endedness of the § 3553(a) factors leaves ample room for the court’s discre tion’ … That discretion invites the risk that a judge’s person al biases will influence or appear to influence the sentence he imposes.” Id. at 885 (quoting United States v. Warner, 792 F.3d 847, 855 (7th Cir. 2015)). After applying the Liljeberg factors to the particular facts in this case, we conclude that the error here was harmless and does not warrant a new trial. The first Liljeberg factor requires us to consider the risk of injustice to the parties in this particular case. We begin with the risk to Williams. The totality of the facts suggests that there is little risk of unfairness in upholding Williams’s con viction. First and significantly, while some ex parte commu nications included Peirson or Klayer, it is undisputed that none of these communications concerned Williams’s case. There is also no evidence that either Peirson or Klayer had any influence on the outcome here. Second, although Judge Bruce presided over Williams’s trial, he was not the trier of fact making the ultimate determination of whether the gov ernment had proved Williams guilty beyond a reasonable doubt. A jury found Williams guilty, and Williams has not questioned the jury’s impartiality. Third, Judge Bruce made minimal rulings before and during trial, none of which ei ther party challenges on appeal. As to his pre trial rulings, Judge Bruce granted routine scheduling and appearance mo tions for both parties. He denied the government’s discovery motion as moot, but he granted the government’s motion to bar an alibi defense because Williams failed to file a response 14 No. 18 3318 or object. Judge Bruce also denied as moot Williams’s mo tion in limine to bar the government from introducing evi dence of prior convictions because the government repre sented that it did not intend to introduce such evidence in its case in chief. The court specifically noted in its order that “should circumstances change at trial, and the government attempt to introduce such evidence during its case in chief, Defendant may revive his motion.” Williams has not argued that any of these rulings prejudiced him. Indeed, the rulings were not controversial or contested and generally pertained to routine matters. As to his trial rulings, Judge Bruce equally granted and denied objections from both parties. Judge Bruce sustained eight out of eighteen of defendant’s objections and two out of four of the government’s objections. He also denied Wil liams’s Rule 29(a) motion at the close of the government’s case and his renewed Rule 29 motion at the close of all evi dence. None of these rulings suggest that Judge Bruce’s ap pearance of bias had any impact on the outcome of Wil liams’s trial. Nor does Williams argue that any particular ruling was prejudicial. Williams attempts to rebut these facts by arguing that under the government’s view, “the harmlessness inquiry would always require proof of actual bias, and would thus render § 455(a)’s prohibition on the appearance of bias a nul lity.” We disagree. The Supreme Court in Liljeberg cautioned that “[a]lthough § 455 defines the circumstances that man date disqualification of federal judges, it neither prescribes nor prohibits any particular remedy for a violation of that duty.” Liljeberg, 486 U.S. at 862. Rather it is up to each court to determine what remedy is appropriate on a case by case No. 18 3318 15 basis. Williams has the burden of showing that at least some of the Liljeberg factors counsel in favor of a new trial. A mere statutory violation alone does not automatically entitle him to a new trial. Also for the first factor, we must consider the risk of in justice to the government if a new trial is granted. We agree with the government that the costs of retrial pose a signifi cant risk of injustice to it. The government would likely spend valuable time and money to retry this case thereby diverting resources from other cases. See United States v. Cer ceda, 172 F.3d 806, 814 (11th Cir. 1999) (en banc) (per curiam). Williams’s case is distinguishable from Atwood in that re gard. Unlike Williams, Atwood pleaded guilty and request ed a resentencing by a different judge. Atwood, 941 F.3d at 884. “[A] remand for resentencing, while not costless, does not invoke the same difficulties as a remand for retrial does.” Rosales Mireles v. United States, 138 S. Ct. 1897, 1908 (2018) (citing Molina Martinez v. United States, 136 S. Ct. 1338, 1348– 49 (2016)). This factor favors denying Williams’s request for a new trial. The second Liljeberg factor asks us to evaluate the risk that the denial of requested relief will produce injustice in future cases. Williams argues that enforcing § 455(a) here may warn judges and litigants to more carefully consider possible grounds for disqualification before trial in other cases. The government contends that the Special Commit tee’s Report has minimized the risk of similar, future viola tions. The Special Committee and the Judicial Council un dertook a thorough investigation and review of the com plaints against Judge Bruce, including requesting and re viewing document productions from Judge Bruce and the 16 No. 18 3318 Office, conducting interviews, and holding a hearing at which Judge Bruce testified. The Special Committee submit ted a detailed report to explain its finding and recommenda tions, which the Judicial Council adopted and made public. The Judicial Council subsequently issued an order publicly reprimanding Judge Bruce and ordering that he remain un assigned from any matters involving the Office until Sep tember 1, 2019. In re Complaints Against Dist. Judge Colin S. Bruce, Nos. 07 18 90053, 07 18 90067 (7th Cir. Jud. Council May 14, 2019). Moreover, Judge Bruce changed his practices in response to the inquiry. He adopted a policy prohibiting any email communications with counsel, prepared a stand ard response to any future ex parte communications initiat ed by litigants, and created a system that populates cham bers email and his work email into separate inboxes. These changes should help reduce any future problems. In this case, we believe that this factor leans towards denying Wil liams’s requested relief. The last Liljeberg factor focuses on the risk of undermin ing the public’s confidence in the judicial process. This factor is a close call. Here, the fact that Williams was convicted by a jury of his peers is significant. Unlike a sentencing, where “the most significant restriction on a judge’s ample discre tion is the judge’s own sense of equity and good judgment,” Atwood, 941 F.3d at 886, a judge has less discretion over the outcome of a jury trial. We can imagine a case where a judge has substantial discretion and his rulings have a significant impact on the outcome, thus undermining the public’s con fidence in the judicial process. But this is not one of those cases. No. 18 3318 17 As discussed above, none of Judge Bruce’s pre trial and trial rulings suggest any actual bias. And the Special Com mittee did not find any evidence that “Judge Bruce’s conduct or ex parte communications impacted any of his rulings or advantaged either party” in any case. On the other hand, overturning a jury verdict based purely on the appearance of bias creates a risk that the public will lose confidence in the judicial process. See, e.g., Cerceda, 172 F.3d at 815–16; see also Bergeron, 636 F.3d at 883–84; Marcavage v. Bd. of Trs. of Temple Univ., 232 F. App x 79, 84 (3d Cir. 2007). And requiring wit nesses to relive this serious crime by testifying at a retrial would pose unwarranted hardship on the witnesses when all evidence suggests the original trial was fair and impartial. This final factor slightly favors upholding Williams’s convic tion. Because all three Liljeberg factors suggest that the statuto ry violation was harmless error, we deny Williams’s request for a new trial and affirm his conviction. B. Sentencing Despite telling the district court that he had no objections to the PSR, Williams argues that the court improperly calcu lated his Guidelines range based on a career offender status and a firearm enhancement. The government concedes that Williams does not qualify as a career offender. It contends that the district court’s sentence was not plain error because the judge made clear that she would impose the same sen tence based on § 3553(a) factors even if he did not qualify as a career offender. The government also argues that the fire arm enhancement was proper. 18 No. 18 3318 When a defendant forfeits an objection to his sentence in the district court, we review the sentence for plain error. United States v. Lynn, 851 F.3d 786, 794 (7th Cir. 2017). Under the plain error standard, a defendant must prove a “(1) an error or defect (2) that is clear and obvious (3) affecting the defendant’s substantial rights (4) and seriously impugning the fairness, integrity, or public reputation of judicial pro ceedings.” United States v. Jenkins, 772 F.3d 1092, 1097 (7th Cir. 2014). We have repeatedly stated that “a sentencing based on an incorrect Guidelines range constitutes plain er ror and warrants a remand for resentencing, unless we have reason to believe that the error in no way affected the district court’s selection of a particular sentence.” Id. (quoting United States v. Love, 706 F.3d 832, 841 (7th Cir. 2013)). 1. Career Offender Status A defendant is a career offender if he “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a)(3). The PSR stated that Williams has two prior convictions that trig ger the career offender provision: one for Illinois aggravated criminal sexual abuse and another for unlawful delivery of a controlled substance. The government concedes that Williams’s aggravated criminal sexual abuse conviction is not a crime of violence. We agree. Whether a prior conviction qualifies as a crime of violence is a legal question we review de novo. See United States v. Edwards, 836 F.3d 831, 834 (7th Cir. 2016). Courts use a categorical approach to determine sentenc ing enhancements. See, e.g., United States v. Woods, 576 F.3d 400, 403–04 (7th Cir 2009). Under the categorical approach, No. 18 3318 19 sentencing courts compare the elements that form the basis of defendant’s state conviction with the federal Guidelines. If the state statute’s elements are the same as, or narrower than, those of the generic offense, the crime qualifies. See, e.g., Descamps v. United States, 570 U.S. 254, 257, 261 (2013); United States v. Campbell, 865 F.3d 853, 855–56 (7th Cir. 2017). When a state statute defines multiple crimes, i.e., is “divisi ble,” courts apply a modified categorical approach and may consult a limited set of documents to determine which of fense defendant was convicted of committing. See Edwards, 836 F.3d at 835. The Guidelines define a crime of violence as any offense punishable by imprisonment for more than a year that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or (2) is, as relevant here, “a forcible sex offense.” U.S.S.G. § 4B1.2(a); see United States v. McDonald, 592 F.3d 808, 812 n.1 (7th Cir. 2010) (noting that the “use of physical force” means the in tentional use of force). Williams’s prior conviction did not involve the use of force. He was convicted of aggravated criminal sexual abuse under 720 ILCS 5/11 1.60. The Illinois statute criminalizes a wide range of conduct and is divisible. See 720 ILCS 5/11 1.60; see also United States v. Fifer, 188 F. Supp. 3d 810, 834 (C.D. Ill. 2016). The PSR states that Williams, “who was 17 years of age or older, committed an act of sexual conduct with S.W., who was under 13 years of age when [Williams] committed the act, in that [Williams] placed his hand on the vagina of S.W. for the purpose of sexual arousal of [him self].” Relevant here, a person violates that portion of the statute if he is 17 years or older and “commits an act of sexu 20 No. 18 3318 al conduct with a victim who is under 13 years of age.” 720 ILCS 5/11 1.60(c)(1)(i). Sexual conduct means “any knowing touching or fondling by the victim or the accused, either di rectly or through clothing, of the sex organs, anus, or breast of the victim or the accused, or any part of the body of a child under 13 years of age … for the purpose of sexual grat ification ….” 720 ILCS 5/11 0.1. This statute does not require “the use, attempted use, or threatened use of physical force.” See, e.g., People v. Calusinski, 733 N.E.2d 420, 423–24 (Ill. App. Ct. 2000) (affirming conviction of kissing a child). Nor is it a forcible sex offense. The Guidelines commen tary defines forcible sex offense as including “offenses of sexual abuse of a minor and statutory rape” if the conduct is either an offense under 18 U.S.C. § 2241(c) or an offense un der state law that would have been an offense under § 2241(c). U.S.S.G. § 4B1.2, cmt. n.1. The latter requires proof that the defendant engaged in a “sexual act,” which includes “the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(2). The Illinois statute is broader than the fed eral statute for two reasons. First, the Illinois statute includes abuse for touching a person through clothing while the fed eral statute does not. And second, it also encompasses touch ing of “any part of the body” while the federal statute re quires touching “of the genitalia of another person.” Because Williams’s prior conviction for aggravated crim inal sexual abuse is not a crime of violence, it is not a quali fying predicate offense. Williams thus does not qualify as a career offender. We do not need to decide whether his prior No. 18 3318 21 drug conviction is a controlled substance offense under the career offender provision because one prior conviction is in sufficient to trigger it. See U.S.S.G. § 4B1.1(a)(3). Williams next argues that the district court committed plain error by basing his sentence in part on a career offend er status. The district court calculated his Guidelines range of 210 to 240 months’ imprisonment with the career offender enhancement. This satisfies the first two elements of the plain error standard; it was a clear error to do so. The parties dispute whether the district court’s incorrect calculation af fected Williams’s substantial rights or seriously impugned on the fairness, integrity, or public reputation of the judicial proceeding. Williams argues that the third and fourth ele ments are satisfied because the error resulted in a higher ad visory Guidelines range than the applicable one. “When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable prob ability of a different outcome absent the error.” Molina Martinez, 136 S. Ct. at 1345; see also United States v. Paz Giron, 833 F.3d 836, 840 (7th Cir. 2016). Such errors also usually af fect the fairness, integrity, or public reputation of judicial proceedings. Rosales Mireles, 138 S. Ct. at 1908. Where the district court clearly would have imposed the same sentence regardless of the erroneous calculation under the Guidelines, however, a reasonable probability of preju dice does not exist. As the Supreme Court has explained: The record in a case may show, for example, that the district court thought the sentence it chose was ap 22 No. 18 3318 propriate irrespective of the Guidelines range. Judges may find that some cases merit a detailed explanation of the reasons the selected sentence is appropriate. And that explanation could make it clear that the judge based the sentence he or she selected on factors independent of the Guidelines. Molina Martinez, 136 S. Ct. at 1346–47. In United States v. Thomas, 897 F.3d 807 (7th Cir. 2018), for example, we held that the district court made clear that the imposed sentence was based on § 3553(a) factors. [The judge] considered Thomas’s personal character istics, noting that Thomas engaged in illegal activity “all his life and admits that. He has no other employ ment history.” The judge noted in particular the terri ble nature of the crime, saying, “These young chil dren, I’m sure, were terrified. They had to be ... taken in the middle of the night by strangers, armed, threat ening, to a place where they didn’t have any idea where they were going or whether they would remain alive.” He also noted the importance of protecting the public from Thomas’s future crimes, stating that if he were released, “these young victims will still be alive. And will they have to be constantly looking over their shoulder if the defendant is released?” Id. at 817–18; see also United States v. Tyson, 863 F.3d 597, 600 (7th Cir. 2017) (noting that the district court stated the calcu lated range “was not serving as the basis for the sentence he imposed”). Here, the record is clear that the district court would have imposed the same 180 month sentence regardless of No. 18 3318 23 whether Williams qualified as a career offender. After calcu lating the Guidelines, the district court started her sentenc ing analysis by considering each of the § 3553(a) factors. The district court first addressed the seriousness of the offense. She determined that the crime was “as serious as it gets.” [I]t’s because this is everybody’s worst nightmare: waking up, going about their everyday business, go ing into a store to get a phone, or maybe working … at the store, and then being terrorized by a group of individuals and being held at gunpoint, fearing that they would not go home to their loved ones that day. Ever. Pushed to the ground, physically manhandled, hogtied … with zip ties … and victimized, all for the theft of phones. The quick and easy buck. She specifically noted that “the impact that this left on every single person who was in that store that day far exceeds any thing that [Williams] and [the] other participants had to gain.” The district court also focused on Williams’s role in the offense. She noted that Williams was a full participant in this premediated crime. Williams and at least four other individ uals planned this crime in advance, “[a]nd everybody had a role, and [Williams’s] role was to drive the getaway car. But [Williams] knew full well what the other participants would be doing inside that store ….” While Williams was not as culpable as the person who held the gun, he was more cul pable than the person who just loaned them the car. “[Wil liams is] somewhere in the middle.” 24 No. 18 3318 Lastly, the district court addressed Williams’s personal history and characteristics. She explained that “career of fender” is designed to “capture the most serious offenders who have a track record of committing violent crimes.” She then noted that the advisory Guidelines range may overstate Williams’s recidivism risk because he has a shorter criminal history than others who qualify as career offenders. At the time of sentencing, he was only 29. The district court con cluded, however, that Williams still represents a strong re cidivism concern given his role in the offense and the nature of his prior criminal history, which includes convictions for retail theft, delivery of a controlled substance, domestic bat tery, and aggravated criminal sexual abuse. She further not ed the escalation in the seriousness of his criminal conduct over time, and this crime is the “most serious.” The district court also expressed concern for his recidivism risk because Williams had violated every term of court imposed supervi sion, except the last one. “So not only were the sentences of probation and jail and Department of Corrections not ade quate enough to deter [Williams] from committing this of fense, but also previous court orders were not enough to en sure [Williams’s] compliance because [he] … committed new law offenses.” The district court acknowledged that she had the discre tion to sentence below the Guidelines range and “not just blanket apply it in every case.” Nonetheless, Williams “rep resent[s] a very strong recidivism concern. So I think it’s somewhere in the middle. If the career offender is not ap plied, [Williams] would be [in the] 121 to 151 [sentencing range]. I think that’s way too low. It’s too low because it doesn’t fully take into account the recidivism concern that [Williams] pose[s].” No. 18 3318 25 After a thorough review of the § 3553(a) factors, the dis trict court explained: The bottom line is: My duty is to protect the public from [Williams], and I do think that a significant sen tence in this case is necessary to do that to, hopefully, finally specifically deter [Williams] when [he] get[s] out from committing future crimes. [He will] age out, essentially, hopefully; and hopefully … tire out. It s not worth the risk. There s too much at stake. And I also think that the sentence that I m imposing is— reflects the seriousness of the o ense and [his] role in the o ense and avoids unwarranted … sentencing disparities. The district court then concluded by expressly stating that although “[c]areer offender applies in this case legally; but even if it didn’t, this is still the sentence that I would impose, based on all the 3553(a) factors.” She imposed a 180 month sentence, which is between the advisory career offender Guidelines range of 210 to 240 months and the advisory non career offender Guidelines range of 121 to 151 months. We find no plain error here. It is clear from her thorough assessment that the district court would have imposed the same sentence irrespective of the career offender provision. See Thomas, 897 F.3d at 817 (stating that there is no plain er ror where “the sentencing judge makes clear that the de fendant’s sentence simply does not depend on the resolution of a guideline issue”). The district court’s detailed analysis of the § 3553(a) factors supports this statement and rebuts any suggestion that it was a conclusory comment. As a result, we conclude that the district court’s error neither affected Wil liams’s substantial rights nor seriously impugned the fair 26 No. 18 3318 ness, integrity, or public reputation of the judicial proceed ing. 2. Firearm Enhancement Lastly, Williams argues that the district court improperly applied a six level firearm enhancement at sentencing for two reasons. First, he argues that a BB gun, rather than a real firearm, was used in the crime. Second, he contends that the district court did not make its finding by a preponderance of the evidence. The government disagrees with both argu ments: there was sufficient evidence for the district court to find that a firearm was used during the robbery and to apply a firearm enhancement. The Sentencing Guidelines permit a six level sentencing enhancement if a firearm was used during a robbery. U.S.S.G. § 2B3.1(b)(2)(B). The commentary to the Sentencing Guidelines defines a firearm as (i) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (ii) the frame or receiver of any such weapon; (iii) any firearm mu er or silencer; or (iv) any destructive device. A weapon, commonly known as a “BB” or pellet gun, that uses air or carbon dioxide pressure to expel a projectile is a dangerous weapon but not a firearm. U.S.S.G. § 1B1.1, cmt. 1(H). Although Williams himself did not use a firearm during the crime, “in the case of a jointly undertaken criminal activi ty … all acts and omissions of others that were—(i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably No. 18 3318 27 foreseeable in connection with that criminal activity” are of fense conduct that is attributable to the defendant. See U.S.S.G. § 1B1.3(a)(1)(B); see also United States v. Ramirez, 783 F.3d 687, 690 (7th Cir. 2015). Here, the district court did not err in applying the firearm enhancement to Williams. Under Federal Rule of Criminal Procedure 32(i)(3)(A), a district court is entitled to “accept any undisputed portion of the presentence report as a find ing of fact.” Williams did not raise any objections to the presentence investigation report. The presentence investiga tion report and trial testimony support the district court’s finding that another participant in the crime, Thomas James, used a firearm during the crime. Three witnesses testified that a black gun was used during the robbery. First, Ryan, a Sprint store employee, “described the gun as a black colored handgun that was not a revolver. When the gun was pointed at Ryan, he could see there was a silver colored ring around the tip of the barrel.” Ryan said that James waved the gun and said “Good thing you told me [where the cell phones were] or I would have had to start shooting.” Second, Nata sha, a store customer, testified that James was “holding a black handgun.” Third, Kasey, another store customer, testi fied that a man was holding “a little black gun or some thing” pointed at his stomach. The only evidence to the contrary is James’s testimony at William’s trial. James testified that he later “learned that it was a BB gun,” but “[i]t looked like a real gun.” But he also stated that he thought it was a real gun when he committed the crime. Nor did he independently determine that it was a BB gun rather than a firearm; instead, the guy who gave him the gun later “told [James] it was a BB gun.” In his interview 28 No. 18 3318 with the probation officer, James contradicted his trial testi mony when he “claimed the gun he held in the robbery was a real firearm, and believed it was a .40 or .45 caliber.” Wil liams did not dispute this fact in the presentence investiga tion report. And it was not plain error for the district court to rely on undisputed facts in this report. See, e.g., United States v. Guajardo Martinez, 635 F.3d 1056, 1060 (7th Cir. 2011); United States v. Aviles Solarzano, 623 F.3d 470, 475 (7th Cir. 2010). It is defendant’s burden to prove that an error “actual ly occurred, not merely that an error might have occurred.” United States v. Williams, 931 F.3d 570, 573 (7th Cir. 2019). Williams has not met that burden. James’s use of a firearm was also reasonably foreseeable. The presentence investigation report states that law en forcement had information that a group of individuals were robbing cellular telephone stores in the same manner. More specifically, two men would enter the store with firearms, escort all personnel in the back, make explicit threats, physi cally restrain the victims, steal merchandise, and make a get away in two vehicles. That group included Thomas James and Randy Williams. At sentencing, the district court found that Williams was a full participant in the crime and knew what the other participants were doing inside the store. We find no reason to second guess that determination. AFFIRMED
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