Judges: Per Curiam
Filed: Jan. 21, 2010
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted October 26, 2009 Decided January 20, 2010* Before WILLIAM J. BAUER, Circuit Judge DIANE S. SYKES, Circuit Judge PHILIP P. SIMON, District Judge.** No. 08-3492 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Illinois, Western Division. v. No. 3:07-cr-5005
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted October 26, 2009 Decided January 20, 2010* Before WILLIAM J. BAUER, Circuit Judge DIANE S. SYKES, Circuit Judge PHILIP P. SIMON, District Judge.** No. 08-3492 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Northern District of Illinois, Western Division. v. No. 3:07-cr-50058..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 26, 2009
Decided January 20, 2010*
Before
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
PHILIP P. SIMON, District Judge.**
No. 08‐3492
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Western Division.
v. No. 3:07‐cr‐50058‐5
Philip G. Reinhard, Judge.
MARK COOPER,
Defendant‐Appellant.
O R D E R
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2).
**
The Honorable Philip P. Simon, United States District Court Judge for the Northern
District of Indiana, sitting by designation.
No. 08‐3492 Page 2
Marc Cooper and two of his buddies robbed a jewelry store in Rockford, Illinois. The
authorities eventually caught up with them, and Cooper and the others were charged with
conspiracy, robbery and using a firearm during a crime of violence. Cooper pled guilty to the
robbery count pursuant to 18 U.S.C. § 1951 and the firearm offense pursuant to 18 U.S.C.
§ 924(c). Cooper was sentenced to 71 months on the robbery offense and a consecutive 84
months on the firearms offense, for a total of 155 months. Cooper filed a notice of appeal but
his appointed lawyer moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396
(1967), because he cannot find any nonfrivolous ground for appeal. Cooper filed a response
to his lawyer’s submission. See Cir. R. 51(b). Limiting our review to the potential issues raised
in counsel’s facially adequate supporting brief and in Cooper’s response, see United States v.
Cano‐Rodriquez, 552 F.3d 637, 638 (7th Cir. 2009), we grant counsel’s motion to withdraw and
dismiss the appeal.
According to Cooper’s plea agreement, on August 2, 2007, he and two others entered
Soto’s Jewelry store in Rockford, Illinois intent on robbing the place. All three were armed.
Cooper jumped on the counter and ordered an employee of the store to get on the ground as
one of his cohorts went into a small back room and dragged a second employee from the back
room to the front area of the store causing the employee to sustain injuries in the form of
abrasions and bruises. The district court estimated that the employee was dragged about six
feet. Cooper and the others stole merchandise valued at approximately $3,000.
The principal issue at sentencing was whether the dragging of the employee from the
back of the store was an “abduction” of the victim or merely a “restraint” under the pertinent
sentencing guideline. See U.S.S.G. § 2B3.1(b)(4). Also at issue was whether the victim sustained
bodily injury when she was dragged across the store, and whether assessing the bodily injury
enhancement and the abduction or restraint amounted to impermissible double counting. The
district court found that the victim was abducted (not merely restrained) and that she sustained
bodily injury. The court also noted that even if it was incorrect on the abduction versus
restraint issue, it would have given the same sentence.
We begin with Cooper’s primary argument that the court was incorrect in finding that
there was an “abduction” of the victim. Under § 2B3.1(b)(4), a defendant convicted of a robbery
offense is given a four level increase in his offense level if “any person was abducted to
facilitate commission of the offense or to facilitate escape” and a two level increase if anyone
was “physically restrained.” U.S.S.G. § 2B3.1(b)(4). The term “physical restraint” is defined
to include (but is not limited to) tying, binding or locking up a victim. See U.S.S.G. § 1B.1.1,
comment (n.1(K)); United States v. Doubet, 969 F.2d 341, 346 (7th Cir. 1992).
No. 08‐3492 Page 3
Because there is no question that this offense at least involved a physical restraint of the
victim, the question before us is whether the conduct at issue here – dragging a robbery victim
about six feet from one room to another – is an “abduction.” As a criminal history category IV
offender, if Cooper is correct his sentencing range would have been 57‐71 months. If the district
court was correct, then his range would have been 70‐87 months. The district court, following
United States v. Osborne, 514 F.3d 377 (4th Cir. 2008), found that moving the victim from the
back room of the store to the front area, amounted to an abduction because, under the
guidelines, an abduction occurs when a victim is forced to accompany a defendant “to different
location.” See U.S.S.G. § 1B1.1, comment (n.1(A)).
An abduction enhancement is not supported by this Circuit’s case law. In United States
v. Carter, 410 F.3d 942, 954 (7th Cir. 2005), we held that forcing a bank teller at gunpoint from
the back vault to her drawer against her will constitutes a restraint. And in a similar case, we
held that a restraint enhancement was appropriate where the defendant directed three bank
tellers to a small room in the back of the bank at gun point. United States v. Doubet, 969 F.2d
341, 346 (7th Cir. 1992); see also United States v. Nelson, 137 F.3d 1094, 112 (9th Cir. 1998)
(“[O]rder[ing] a jewelry store employee and customer to the back room at gunpoint . . .
constitutes physical restraint.”). By contrast, forcing a bank employee at gunpoint from a
parking lot into the bank warranted a four level enhancement for abduction, because this
amounted to a “different location“ under the guidelines. United States v. Taylor, 128 F.3d 1105,
1110‐11 (7th Cir. 1997); see also United States v. Gall, 116 F.3d 228, 230 (7th Cir. 1997) (abduction
enhancement proper where victims were forced at gunpoint into trucks and drove around “a
significant distance”); United States v. Davis, 48 F.3d 277, 279 (7th Cir. 1995) (forcing victim at
gunpoint from parking lot to inside the credit union satisfied abduction requirement).
As mentioned, the district court relied on United States v. Osborne, 514 F.3d 377 (4th Cir.
2008), in finding the abduction enhancements applicable. In Osborne, the defendants forced
employees of a Walgreens drug store from the pharmacy section of the store, which was
separated by a secured door and only accessible by authorized persons via keypad, through
the entire building and out to the front door. Id. at 391. The court found that the victims were
taken hostage to facilitate the defendants’ escape – which is the type of conduct “plainly
targeted by the abduction enhancement.” Id. at 390.
The facts in this case really do not resemble the situation in Osborne. Here, the store was
a small retail jewelry store and the victim was moved no more than six feet. Given the
dimensions of the store and the nature of the movement of the victim, this case is materially
different from Osborne. On the other hand, this case is indistinguishable from cases such as
Carter and Doubet. Under these facts, and taking into account the physical dimensions of the
No. 08‐3492 Page 4
jewelry store, we believe that transporting the victim six feet is more akin to a restraint than it
is an abduction, and so the district court erred in holding otherwise.
The next issue is whether the error was harmless. We believe it was. The district court
calculated Cooper’s final offense level (including the abduction enhancement) to be a level 23.
Cooper started at a base offense level of 20; two points were added because the victim sustained
bodily injury during the robbery, see U.S.S.G. § 2B3.1(b)(3); four points were added –
erroneously, as we have just found – because the victim was abducted; and three points were
subtracted because Cooper accepted responsibility leaving a final offense level of 23. Cooper
was a criminal history category IV. This yielded a suggested range of imprisonment under the
guidelines of 70‐87 months. With our finding that the victim was restrained, not abducted,
Cooper’s final offense level should have been 21 and with a criminal history category of IV, the
recommended range is therefore 57‐71 months.
Recall that Cooper was sentenced to 71 months on the robbery count, which is a sentence
that is within the range whether this was an abduction or a restraint. In other words, the ranges
overlap, and the sentence that was chosen was in both ranges. At sentencing, the judge stated
that he would have given the identical sentence whether or not he was correct on the abduction
versus restraint issue. Given the defendant’s significant criminal history, and the fact that a
victim was harmed in the robbery, the court concluded that a sentence of 71 months was
appropriate one way or the other. Since a sentence within the guideline range is almost never
unreasonable, United States v. Tahzib, 513 F.3d 692, 695 (7th Cir. 2008), any error in this case was
harmless.
In his response to counsel’s Anders brief, Cooper also suggests that appellate counsel
could argue that he was the victim of impermissible double counting by the district court. In
particular, he claims that being given a two level enhancement for bodily injury and an
additional enhancement for restraint of the victim was an error. Cooper’s counsel in the district
court correctly conceded that this was not double counting. We agree, and to raise the
argument on appeal would be frivolous. Improper double counting only occurs “when a
district court imposes two or more upward adjustments within the same guideline range, when
both are premised on the same conduct.” United States v. Schmeilski, 408 F.3d 917, 919 (7th Cir.
2005) (quoting United States v. Haines, 32 F.3d 290, 293 (7th Cir. 1994)) (italics in Haines). But
when each enhancement addresses distinct conduct, there is no double counting even if there
is some factual overlap. Id. at 919.
When an assailant restrains a victim and causes bodily injury in the process, that is
obviously more egregious than when the assailant merely restrains a victim and causes no
bodily injury. The guidelines sensibly find that the former is deserving of a higher sentence
No. 08‐3492 Page 5
than the latter. That’s the situation that Cooper (or more specifically his victim) was in. Both
the restraint enhancement and the bodily injury enhancement are targeting different harms and
so holding Cooper responsible for both harms does not amount to impermissible double
counting. See United States v. White, 222 F.3d 363, 376 (7th Cir. 2000).
Because there are no nonfrivolous grounds for appeal, appointed counsels’ motion to
withdraw under Anders v. California, 386 U.S. 738 (1967) is GRANTED, and the appeal is
DISMISSED.