850 F.3d 328
7th Cir.2017Background
- On Jan. 6, 2013, Anthony Cook and three accomplices robbed a Community Financial Service Center (CFSC) in Milwaukee; Cook took about $337,100 after an accomplice tackled and held the security guard at gunpoint.
- Cook pled guilty to Hobbs Act robbery (18 U.S.C. § 1951) and to brandishing a firearm during a crime of violence (18 U.S.C. § 924(c)); plea agreement recommended guideline calculations and noted the government might seek two additional enhancements.
- The plea agreement and PSR included two disputed 2-level enhancements under U.S.S.G. § 2B3.1: (1) for taking property from a financial institution (§ 2B3.1(b)(1)) and (2) for physically restraining a person (§ 2B3.1(b)(4)(B)).
- At sentencing Cook objected, arguing CFSC is not a “financial institution” (or the term is unconstitutionally vague) and that applying the physical-restraint enhancement would impermissibly double count conduct that already constituted an element of the robbery.
- The district court applied both enhancements, yielding an adjusted offense level of 24; Cook received 60 months on the robbery count (below guidelines) and 84 months consecutive on the § 924(c) count, plus restitution. The Seventh Circuit affirmed.
Issues
| Issue | Cook's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether CFSC is a “financial institution” under U.S.S.G. § 2B3.1(b)(1) | CFSC is not a financial institution; term should be limited to depository institutions | CFSC provides financial services (check cashing, money transfers, loans) and fits the plain meaning of "financial institution" | CFSC is a financial institution under § 2B3.1(b)(1) — enhancement proper |
| Whether “financial institution” in the guideline is unconstitutionally vague | Term is vague and violates due process | Guidelines are not subject to vagueness challenge post-Beckles | Vagueness challenge rejected (Beckles controls) |
| Whether physical restraint by an accomplice triggers § 2B3.1(b)(4)(B) | If applied, it would impermissibly double count the same conduct that constituted robbery | Accomplice’s restraint was attributable relevant conduct and guidelines permit cumulative enhancements absent explicit prohibition | Physical-restraint enhancement applied; no impermissible double counting under Vizcarra presumption |
Key Cases Cited
- United States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012) (same conduct may affect base offense level and also trigger separate enhancements unless guideline says otherwise)
- United States v. Senn, 129 F.3d 886 (7th Cir. 1997) (earlier rule treating shared characteristics as reflected in base offense level)
- United States v. Taylor, 620 F.3d 812 (7th Cir. 2010) (discussing overlap between use-of-force and physical-restraint concepts)
- United States v. Black, 636 F.3d 893 (7th Cir. 2011) (describing the physical-restraint enhancement’s focus on deprivation of freedom of movement)
- United States v. Loffredi, 718 F.3d 991 (7th Cir. 2013) (observing that cumulative enhancements reflect offense seriousness)