UNITED STATES OF AMERICA, Plаintiff-Appellee, v. DUPRECE JETT and DAMION MCKISSICK, Defendants-Appellants.
Nos. 19-1622 & 19-1673
United States Court of Appeals For the Seventh Circuit
Argued October 27, 2020 — Decided December 15, 2020
Before SYKES, Chief Judge, and KANNE and ST. EVE, Circuit Judges.
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:16-cr-00001 — Tanya Walton Pratt, Judge.
I. Background
We described the facts behind the defendants’ convictions at length in our opinion addressing the defendants’ first appeal. Jett, 908 F.3d at 259-63. We repeat those facts here only as they relate to the current appeal.
A. Convictions
Two armed men dressed in 1970s-themed disguises robbed three cash-and-check stores in the Indianapolis area in the second half of 2015. An anonymous tip led officers to Jett and McKissick. Officers began surveilling Jett and McKissick and soon determined that they and a third man, Earl Walker, were about to commit a fourth robbery. The officers decided to intervene. On the morning of the anticipated fourth robbery, Walker and McKissick were driving near a credit union in a stolen car. The officers tried to pull them over, but Walker (the driver) and McKissick sped off. Following a high-speed chase, the officers arrested Jett, McKissick, and Walker.
A federal grand jury indicted the defendants and Walker (who is not part of this appeal) on two counts: (1) conspiracy in violation of the Hobbs Act,
At trial, the government introduced a range of evidence, including: surveillance footage of the three robberies; text messages between Jett and McKissick from the night before the attempted robbery; cell-tower data placing the defendants near the robberies; testimony that the bright orange vests that the robbers wore during the first robbery matched Jett‘s work clothes; evidence of burnt items found at McKissick‘s home, including ski masks, gloves, and a backpack, all of which matched the robbers’ gear; evidence that the defendants’ DNA was found оn a ski mask, backpack, and airsoft pistol recovered from the stolen car that McKissick and Walker had used to flee from officers; incriminating statements that McKissick made at the police station; and an incriminating phone call between McKissick and his wife. The government did not produce an eyewitness who could identify Jett or McKissick as the robbers. The jury convicted the defendants on both counts.
B. Initial Sentencings
Following their convictions at trial, the district court sentenced Jett and McKissick to 293 months’ imprisonment. McKissick received 203 months on Count 1 and 90 months on Count 2, to run consecutively for a total of 293 months. Jett received 209 months on Count 1 and 84 months on Count 2, to run consecutively for a total of 293 months. The defendants’ sentences were at the high end of the advisory Guidelines range of 235 to 293 months, which resulted from total offense levels of 33 and criminal history categories of VI. The court calculаted the defendants’ offense levels by separately grouping the three robberies and the attempted robbery, see
During both defendants’ sentencings, the court commented on the strength of the evidence at trial. At McKissick‘s sentencing, the court stated that “the evidence at trial clearly establishes that Mr. McKissick and Mr. Jett committed the first three robberies.” The court also remarked, in reference to “issues of cross-racial identification” raised at trial, that it had “no doubt, whatsoever, that Mr. McKissick was the robber that was identified” at trial. At Jett‘s sentencing hearing, the court commented, apparently in response to Jett‘s allocution in which he continued to maintain his innocence, that it was “100 percent certain that Mr. Jett is guilty and that the participation that he invoked in during this robbery -- the Court is aware of exactly what Mr. Jett did.”
C. First Appeal
The defendants appealed their convictions, asserting various trial errors. We reversed the defendants’ attempted-robbery convictions because there was no evidence of force, violence, or intimidatiоn, but we affirmed in all other respects. Jett, 908 F.3d at 259. Relevant here, we rejected the defendants’ argument that the district court erred in refusing to instruct the jury on overt acts because “a Hobbs Act conspiracy does not have an overt-act requirement.” Id. at 265. We remanded with instructions for the district court to enter a judgment of acquittal on Count 2 and resentence the defendants. Id. at 276.
The evidence against Jett and McKissick on Count 1 was plenty persuasive without [the expert‘s] interpretation of the text messages. The government needed only to prove that they conspired to commit bank robbery, and it admitted surveillance footage that a jury could easily conclude showed Jett and McKissick actually committing the bank robberies together. Cell-phone data further confirmed that both men were in the area of the check-and-cash locations around the times they were robbed. The government also introduced evidence of burned items matching what the robbers used at McKissick‘s home and McKissick‘s incriminating statements at the stationhouse.
D. Resentencings
On remand for resentencing on Count 1, a рrobation officer calculated the defendants’ advisory Guidelines ranges as 188 to 235 months. Although Count 2 was gone, the probation officer concluded that the defendants’ total offense levels were still 33 because the same grouping analysis and multiple-count adjustment applied based on the three robberies and the attempted robbery. At the same time, the defendants’ criminal history categories were now IV rather than VI because of our intervening decision in D‘Antoni v. United States, 916 F.3d 658 (7th Cir. 2019), which held that a conspiracy conviction that does not include force as an element is not a crime of violence for purposes of the career-offender enhancement. Id. at 665.
Both defendants objected to the probation officer‘s proposed grouping analysis. They argued that only a jury could decide whether they had committed the four conspiracies underlying their cоnvictions on Count 1. The defendants relied heavily on Application Note 4 to
The district court overruled the defendants’ grouping objections. It agreed with the government that it could group the conspiracies if it found by a preponderance of the evidence that the defendants had committed each of them. It found that thеy had. At Jett‘s resentencing (which took place before McKissick‘s), the court stated: “There was more than a preponderance of the evidence. It was evidence beyond a reasonable doubt, and very strong direct and circumstantial evidence of Mr. Jett‘s participation in the conspiracy and all of these acts in the conspiracy.” It then summarized the trial evidence. Because “the evidence at trial was sufficient to show that Mr. Jett and Mr. McKissick and Mr. Walker were co-conspirators in these—in the conspiracy,” the court overruled Jett‘s grouping objection. The court similarly overruled McKissick‘s grouping objection and found that the evidence supported his commission of each conspiracy: “[C]learly, the evidence supports a conspiracy of the three robberies which were completed, as well as the cоnspiracy to commit a fourth robbery.”
After overruling the defendants’ objections, the court adopted the probation officer‘s
The court sentencеd both defendants to 230 months’ imprisonment on Count 1. The court‘s explanation for the defendants’ new sentences was essentially the same as its explanation for the defendants’ first sentences. Both times, the court referenced various
At Jett‘s resentencing, the court remarked yet again on the strength of the evidence, saying, “the Court is 100 percent certain that Mr. Jett conspired with Mr. McKissick and Walker and participated in these acts, these crimes. And the Court is confident of his participation and involvement in the three actual robberies and the substantial steps towards the fourth robbery.”
The defendants now appeal their new sentences.
II. Discussion
The defendants argue that the district court committed two procedural errors when resentencing them. First, they say the court erred under the Guidelines by failing to apply the reasonable-doubt standard when making factual findings about the four distinct overt acts underlying their convictions on Count 1. Second, they say the court failed to adequately explain why it increased their original sentences on Count 1 at resentencing. We review procedural issues at sentencing de novo. United States v. Salgado, 917 F.3d 966, 969 (7th Cir. 2019).
A. Guidelines Issue
When a defendant has multiple counts of conviction, the Guidelines instruct the sentencing court to separately group the cоunts and calculate the defendant‘s total offense level by taking the highest offense level from among the groups and increasing it based on the number and seriousness of the other groups.
These grouping rules apply to defendants convicted on one count of conspiring to commit multiple offenses.
Particular care must be taken in applying subsection (d) because there are cases in which the verdict or plea dоes not establish which offense(s) was the object of the conspiracy. In such cases, subsection (d) should only be applied with respect to an object offense alleged in the conspiracy count if the court, were it sitting as a trier of fact, would convict the defendant of conspiring to commit that object offense.
We have not previously addressed whether
We join those circuits today and hold that
The government does not dispute that
An error is harmless if it does not affect a defendant‘s “substantial rights.”
The district court‘s Guidelines error was harmless because the court made clear that it would have imposed the same sentence on each defendant even if the higher reasonable-doubt standard applied. The court said so expliсitly for Jett, commenting at his resentencing that there was “evidence beyond a reasonable doubt … of Mr. Jett‘s participation in the conspiracy and all of these acts in the conspiracy,” such that “the conduct for the entirety of the conspiracy” was covered under
The same holds true for McKissick, even though the court never explicitly said that there was evidence beyond a reasonable doubt that he had committed all four conspiracies. The court commented repeatedly at the defendants’ initial sentencing hearings and at their resentencings on the strength of the evidence against McKissick.
And these comments were justified. As we observed in the defendants’ first appeal, there was “convincing evidence of Jett‘s and McKissick‘s guilt,” including surveillance footage of the robberies; confirmatory cell-phone data; incinerated items at McKissick‘s home that matched items the robbers used; testimony about the high-speed chase lеading to McKissick‘s arrest; and McKissick‘s incriminating stationhouse statements. Jett, 908 F.3d at 271. From the surveillance footage alone, “a jury could easily conclude [that] Jett and McKissick actually commit[ed] the bank robberies together.” Id. at 267. Importantly, there is no reason to believe that the evidence was any less persuasive against McKissick than it was against Jett. If anything, there was more evidence against McKissick, including the burnt items found at his home and his incriminating stаtements.
On this record, the district court‘s error was harmless as to both defendants. The court‘s comments at the initial sentencings and the resentencings, along with the overwhelming strength of the evidence against both defendants, convince us that remanding for the court to reconsider, under the reasonable-doubt standard, whether the defendants committed each of the underlying overt acts would be a “pointless” exercise. Abbas, 560 F.3d at 667.
B. Sentencing Explanation
The defendants’ next argumеnt is that the district court failed to explain why the same
A district court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007). “[I]t is not our role to justify a sentence that lacks a sufficient explanation with our best guess for why the court imposed thе sentence that it did.” United States v. Titus, 821 F.3d 930, 935 (7th Cir. 2016).
Again, the parties dispute whether plain-error or de novo review applies. We need not resolve this dispute because there was no error, let alone plain error.
The defendants rely on our recent decision in United States v. Ballard, 950 F.3d 434 (7th Cir. 2020), for the proposition that a district court must explain a difference between an initial sentence and subsequent sentence on the same count. In Ballard, we held that the district court “committed procedural error by not providing an adequate explanation for the major upward departure from the Guidelines range on resentencing.” Id. at 437. At the defendant‘s first sentencing, his advisory Guidelines range was 180 to 210 months. Id. at 435. The district court imposed a sentence of 232 months—a 10% upward departure. Id. at 436. The defendant appealed, and we vacated his sentence because the district court had erroneously applied a sentencing enhancement. Id. On remand, without the sentencing enhancement, the defendant‘s advisory Guidelines range was much lower: 33 to 41 months. Id. Citing the same
Ballard does not support the defendants’ position—indeed, it strongly undercuts it. In our case, the district court did the opposite of what the district court had done in Ballard. At the defendants’ first sentencings, the court sentenced them both at the high end of the Guidelines range. On remand, it sentenced them just below the high end of the Guidelines range. In Ballard, what mattered was how the sentences compared to the applicable Guidelines range. Here, the sentences fell at almost the same spоt in the Guidelines ranges. There was no procedural error under Ballard.
Beyond Ballard, the defendants provide no authority for their argument that the district court had to give them the same sentences on Count 1 at resentencing or explain the difference. The Supreme Court has bluntly rejected the argument that a sentencing judge must consider each count in isolation when fashioning a sentence: “Nothing in the law requires such an approach.” Dean v. United States, 137 S. Ct. 1170, 1176 (2017). Indeed, the “sentеncing package” doctrine exists to allow a sentencing judge to reconfigure a sentence for the remaining counts when an appellate court reverses a conviction on some but not all counts following the initial sentencing. Id.; Pepper v. United States, 562 U.S. 476, 507 (2011). Here, we vacated the defendants’ convictions on Count 2 and remanded for resentencing on Count 1, even though the district court had already sentenced the defendants on Count 1. That is becаuse, with Count 2 gone, the sentencing calculus changed. The advisory Guidelines range was also different, which further altered the calculus. Put simply, there is no legal basis for the defendants’ argument that the district court had to give them the same sentences on Count 1 at resentencing or explain the difference. The district court did not err by failing to explain why the defendants’ new sentences on Count 1 did not match their initial sentences on Count 1. See United States v. Kappes, 782 F.3d 828, 864 (7th Cir. 2015) (noting that sentencing judges need not address meritless mitigation arguments at sentencing).
AFFIRMED.