United States v. Black

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1721

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

W AYNER D. B LACK,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 3:09-cr-00108-bbc-1—Barbara B. Crabb, Judge.

A RGUED D ECEMBER 1, 2010—D ECIDED M ARCH 7, 2011

Before

B AUER and P OSNER, Circuit Judges, and

P ALLMEYER, District Judge.Œ

B AUER, Circuit Judge. Defendant-appellant Wayner D.

Black pleaded guilty to bank robbery by use of a

dangerous weapon in violation of 18 U.S.C. § 2113(a)

and (d). The district court, guided by recommendations

in the presentence investigation report (“PSR”), applied

Œ

The Honorable Rebecca R. Pallmeyer, United States District

Court for the Northern District of Illinois, sitting by designation.

2 No. 10-1721

several sentence enhancements and sentenced Black to

262 months’ imprisonment. On appeal, Black challenges

his career offender enhancement, physical restraint en-

hancement, and denial of an acceptance of responsibility

adjustment. For the following reasons, we affirm the

district court’s enhancement findings and sentence.

I. BACKGROUND

On July 24, 2009, defendant-appellant Black and

three accomplices—Marty Taylor, Arlandis Issac, and

Larry Price—each wearing a mask and wielding a

firearm, robbed the Amcore Bank of Madison, Wisconsin.

During the robbery, Issac forced a bank teller at gun-

point to move to various places in the bank, and, at

some point, forcefully pushed his gun to the back of the

teller’s head, causing minor injuries.

Black was arrested on July 30, 2009 after one of his

accomplices made statements implicating him. On

August 6, 2009, Black was charged in a two-count in-

dictment with bank robbery by use of a dangerous

weapon, in violation of 18 U.S.C. § 2113(a) and (d)

(Count One), and with brandishing a firearm during and

in connection with a crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii) (Count 2).

Black executed a plea agreement in which he agreed

to plead guilty to Count One and the government

agreed to move to dismiss Count Two. The probation

department prepared a PSR, which determined that

Black’s base offense level was 20. It also made the fol-

No. 10-1721 3

lowing recommendations: (1) a one-level enhancement

for taking more than $10,000 but less than $50,000; (2) a

two-level enhancement for taking the property of a finan-

cial institution; (3) a six-level enhancement for using

a firearm during the offense; (4) a two-level enhance-

ment for physical restraint of the teller; (5) a two-level

enhancement for bodily injury to the teller; and (6) a two-

level enhancement for obstruction of justice. The obstruc-

tive conduct consisted of Black asking his girlfriend to

dispose of the boots he wore during the robbery and

attempting to fabricate an alibi. Finally, the PSR identified

Black as a career offender based on the present felony

conviction for a crime of violence plus three prior felony

convictions for controlled substance offenses in Cook

County, Illinois. The PSR relied on arrest reports, charging

documents, orders, docket sheets, and certified state-

ments of conviction and found that Black had been con-

victed of possession with intent to deliver cannabis in

case number 1999-CR-09960, possession of a controlled

substance with intent to deliver in case number 1999-CR-

27233, and possession of a controlled substance with

intent to deliver in case number 2000-CR-11400.

Black filed objections to the PSR, contesting the en-

hancement for physical restraint, a portion of the ob-

struction of justice enhancement, and the finding that

he was a career offender. Black also argued that he

should receive a reduction for acceptance of responsi-

bility because he agreed to plead guilty and his case

presented “extraordinary circumstances.”

After a sentencing hearing, the district court judge

adopted the majority of the recommendations in the

4 No. 10-1721

PSR and made the following findings: (1) Black’s base

offense level was 20; (2) a six-level enhancement ap-

plied because Black and the other robbers were armed

during the offense; (3) a two-level enhancement applied

because the teller was physically restrained; (4) a one-

level enhancement applied because the defendant stole

more than $10,000 but less than $50,000; (5) a two-level

enhancement applied because of Black’s willful attempt

to obstruct justice; (6) a one-level enhancement applied

because Black was a career offender; and (7) Black did

not qualify for a three-level downward adjustment for

acceptance of responsibility.

The judge sentenced Black to 262 months in prison. Black

appeals the findings regarding the career offender en-

hancement, the physical restraint enhancement, and the

acceptance of responsibility rejection.

II. DISCUSSION

A. Career Offender Status

Black primarily argues that the district court erred in

classifying him as a career offender because there was

insufficient evidence to establish that his prior convic-

tions were qualifying offenses. We review de novo the

district court’s decision to classify Black as a career of-

fender. United States v. Kindle, 453 F.3d 438, 440 (7th Cir.

2006).

A defendant is classified as a career offender under

the Sentencing Guidelines and subject to an increased

No. 10-1721 5

offense level if he is at least eighteen years old at the

time of the offense of conviction, the offense of convic-

tion is a crime of violence or a controlled substance

offense, and the defendant has at least two prior con-

victions of either a crime of violence or a controlled

substance offense. U.S.S.G. § 4B1.1 (2002).

Black maintains that he produced evidence that called

into question the reliability of the information in the PSR,

the document upon which the district judge relied in

determining his career offender status, and therefore

the district court erred in applying the career offender

enhancement. A district court may rely on information

contained in a PSR so long as the report is well-supported

and appears reliable. United States v. Heckel, 570 F.3d

791, 795 (7th Cir. 2009); United States v. Mustread, 42 F.3d

1097, 1101-02 (7th Cir. 1994). A defendant may produce

evidence that questions the reliability or correctness of

the facts in the report, but he must do so beyond a

“bare denial” of the information. Mustread, 42 F.3d at

1102. Only when the defendant creates “real doubt” does

the burden then shift to the government to demonstrate

the accuracy of the information. United States v. Moreno-

Padilla, 602 F.3d 802, 809 (7th Cir. 2010).

Black admits that his prior conviction in case number

2000-CR-11400 qualifies, but disputes his two other

prior convictions—case number 1999-CR-09960 and case

number 1999-CR-27233—at least one of which must

qualify as a controlled substance offense to classify

Black as a career offender. In his initial objection to the

PSR and continuing through his sentencing hearing,

6 No. 10-1721

Black produced signed orders for each of the two

offenses at issue. He argues that the ambiguities in

those documents, namely illegible handwriting, call into

question the accuracy of the PSR. Black asserts that the

handwritten abbreviation indicating the charge in the

order for case number 1999-CR-09960 is impossible to

decipher and that the same is true for the records in

case number 1999-CR-27233. Black maintains that pro-

ducing these documents satisfied his requirement of

casting doubt upon the correctness of the charges in

the PSR and that the burden then shifted to the govern-

ment to demonstrate the accuracy of the PSR, which

he claims it failed to do.

We do not believe that Black ever created a real doubt

as to the accuracy of the information in the PSR. Black

states in his brief that the ambiguity in the orders leaves

open “the possibility” that he pleaded guilty to lesser

offenses that would not qualify as controlled substances

offenses under the Guidelines, but at no point did Black

ever allege that he was not convicted of the crimes

with which he was charged. Black’s unwillingness to

testify that he was not convicted of controlled substance

offenses while silently hiding behind “unclear hand-

writing” is suspect. We see no reason for a defendant

to submit evidence that is indirect to the issue when

Black himself could have produced direct evidence by

simply stating that he was not convicted of the crimes

with which he was charged or that he was actually con-

victed of a lesser offense. Black’s evasiveness fails to

meet the more than a “bare denial” requirement needed

to shift the burden back to the government, and we

No. 10-1721 7

need not address Black’s arguments regarding docu-

ments presented by the government to demonstrate the

accuracy of the PSR.

Black also argues that the district court erroneously

considered arrest reports and other documents cited in

the PSR when classifying him as a career offender. As

an initial matter, we find that Black did not waive this

objection below. Waiver is the intentional relinquish-

ment and abandonment of an argument. United States

v. Ortiz, 431 F.3d 1035, 1038 (7th Cir. 2005). While Black

may not have fully developed nor articulately pre-

sented the exact argument below, he did raise

the issue, citing to relevant authority in his sentencing

memorandum and attaching pertinent documents. He

thus did not intentionally forego the argument.

Nonetheless, Black has not convinced us that the

district court erred. Courts are required to take a categori-

cal approach in analyzing prior convictions, meaning

that a court is generally limited to considering the fact

of conviction and the statutory elements of the offense

when determining whether prior convictions classify

the defendant as a career offender.1 A district court is

therefore limited to examining “the statutory definition,

1

Shepard v. United States, 544 U.S. 13, 17 (2005) (citing Taylor

v. United States, 495 U.S. 575, 602 (1990)). Though Shepard’s

holding applied to the Armed Career Criminals Act and crimes

of violence, we have extended this holding to the Guidelines’

career offender provision. United States v. McGee, 408 F.3d

966, 988 (7th Cir. 2005).

8 No. 10-1721

charging document, written plea agreement, transcript

of plea colloquy, and any explicit factual finding made

by the trial judge to which the defendant assented.”

Shepard, 544 U.S. at 16. A district court may not rely

on facts about the crime of conviction from other

sources when making an enhancement determination,

and it may not rely on police reports. Shepard, 544 U.S.

at 16; United States v. Thigpen, 456 F.3d 766, 770 (7th Cir.

2006).

Black claims that the district court did not use the

categorical approach in analyzing his prior convictions

because the district court relied on the PSR, which

itself relied upon arrest reports and other background

documents. We addressed this issue in United States v.

Thigpen, a case that Black unsuccessfully attempts to

distinguish from his own. To determine whether the

defendant in Thigpen qualified as a career offender,

the district court similarly considered the defendant’s

PSR, which relied on police reports and other back-

ground documents. Thigpen, 456 F.3d at 770. We con-

cluded that each of the defendant’s prior crimes of

violence or controlled substances offenses qualified on

its face for a career offender enhancement and stated

that “[w]hile the PSR certainly contained more informa-

tion than merely the crimes of conviction, this would

only be a problem if the district court used these facts

to establish a crime of violence or controlled substance

offense.” Id.

The fact that Black’s PSR references underlying docu-

ments, such as arrest reports, does not create a Shepard

No. 10-1721 9

problem because each of Black’s prior controlled sub-

stance offenses qualifies him for career offender status

on its face. A controlled substance offense is defined in

the Guidelines as “an offense under federal or state

law, punishable by imprisonment for a term exceeding

one year, that prohibits the manufacture, import, export,

distribution, or dispensing of a controlled substance (or

a counterfeit substance) or the possession of a controlled

substance (or a counterfeit substance) with intent to

manufacture, import, export, distribute, or dispense.”

U.S.S.G. § 4B1.2(b) (2009). Black had three prior convic-

tions for possession of a controlled substance with

intent to deliver. A Shepard problem only arises when

a district court relies on facts in underlying documents

to establish a crime of violence or controlled substance

offense. We require courts to use a categorical approach

because resolving a factual dispute “would require a

trial within the sentencing hearing and if the result was

to increase the maximum punishment of the defendant

[it] would infringe his constitutional right to trial by

jury.” United States v. Aviles-Solarzano, 623 F.3d 470, 473

(7th Cir. 2010). A proper analysis occurs when the court

considers “whether the elements of the offense are of the

type . . . without inquiring into the specific conduct of

th[e] particular offender.” United States v. Woods, 576 F.3d

400, 403 (7th Cir. 2009) (quoting James v. United States,

550 U.S. 192, 202 (2007)). This is exactly what the

district court did in Black’s case.

Black attempts to argue that the district court should

not have attempted a categorical approach as the court

did in Thigpen because Black asserted that his convic-

10 No. 10-1721

tions were unclear. He argues that this dispute required

the court to look at underlying documents to resolve

the ambiguity and created a Shepard problem, and he

encourages the court to follow a modified categorical

approach. The modified categorical analysis, likewise

derived from Shepard, permits a court to look at other

documents in limited cases when a defendant’s convic-

tion is unclear only because the crime is defined in a

divisible statute. Shepard, 544 U.S. at 16-17; United States

v. Smith, 544 F.3d 781, 786 (7th Cir. 2008) (“When a

statute encompasses multiple categories of offense

conduct—some of which would constitute a violent

felony and some of which would not—we may expand

our inquiry into a limited range of additional material

in order to determine whether the jury actually con-

victed the defendant of (or, in the case of a guilty plea,

the defendant expressly admitted to) violating a portion

of the statute that constitutes a violent felony.”); see

United States v. Spells, 537 F.3d 743, 749 (7th Cir. 2008).

But the controlled substance statutes under which Black

was convicted are not divisible. The district court thus

could, and did, apply a categorical approach. For

these reasons, we find that the district court properly

applied the career offender enhancement.

B. Physical Restraint of a Victim

We review the question of whether the bank teller was

physically restrained, a matter of interpretation of the

Sentencing Guidelines, de novo. United States v.

Eubanks, 593 F.3d 645, 649 (7th Cir. 2010). Any factual

No. 10-1721 11

findings regarding the enhancement are reviewed for

clear error. Id.

Section 2B3.1(b)(4) of the Guidelines applies a sen-

tencing enhancement if a person is “physically re-

strained to facilitate the commission of the offense or

to facilitate escape.” U.S.S.G. § 2B3.1(b)(4) (2010). The

term “physically restrained” is defined as “the forcible

restraint of the victim such as being tied, bound, or

locked up.” U.S.S.G. § 1B1.1 cmt. n.1(K) (2010).

Black argues that Issac’s conduct—ordering and leading

the bank teller around at gunpoint—did not constitute

physical restraint because it is not similar enough to

the examples enumerated in the Guidelines.2 Black main-

tains the court should have followed the principle

derived from Begay v. United States that when Congress

or the Sentencing Commission have defined a term by

way of a list of examples, those examples serve as a

limitation on the definition. Begay v. United States, 553 U.S.

137, 143 (2008). Black thus argues that conduct does

not constitute physical restraint unless it is relatively

identical to the examples listed in defining the term,

specifically tying, binding, or locking up the victim. In

fact, we explicitly rejected the same argument from

Black’s accomplice Marty Taylor in United States v.

2

Black’s physical restraint enhancement is based on Issac’s

conduct, which is also relevant conduct of the defendant, and

is not at issue on appeal. See U.S.S.G. § 1B1.3(a)(1)(B) (2010).

12 No. 10-1721

Taylor,3 a decision that Black urges us to now overrule.

We decline to do so. While a statutory list of examples

can indicate the statute’s intended scope, the funda-

mental characteristic of the physical restraint enhance-

ment is to punish one for depriving a person of his free-

dom of physical movement, which can be accomplished

by means beyond those statutory examples. See Taylor,

620 F.3d at 814. We have found that “[w]hether a

pointed gun is used to move a person into an unlocked

room and keep him there, or used to move a person

from one part of the robbery scene to another, the

person’s freedom of movement is restrained as effec-

tively as by shoving or dragging him into a room and

locking the door.” Id. at 815 (citing United States v. Carter,

410 F.3d 942, 954 (7th Cir. 2005)). Today we reaffirm

United States v. Taylor and again find that Black’s accom-

plice’s actions during the robbery constitute physical

restraint. We affirm Black’s physical restraint enhance-

ment.

C. Acceptance of Responsibility

Black argues that he should have received a three-level

reduction in his base offense level for acceptance of

responsibility, despite receiving an obstruction of justice

3

United States v. Taylor, 620 F.3d 812 (7th Cir. 2010), involved

Marty Taylor, one of the four bank robbers in the present case.

We issued the decision, rejecting each of Taylor’s arguments

regarding an identical physical restraint enhancement and

upholding the enhancement, while Black’s appeal was pending.

No. 10-1721 13

enhancement, because extraordinary circumstances exist

in his case. We review a district court’s acceptance of

responsibility determination for clear error. United States

v. Booker, 248 F.3d 683, 690 (7th Cir. 2001).

A sentencing court may grant a defendant a two-

level downward adjustment under § 3E1.1(a) of the

Guidelines if the defendant “clearly demonstrates ac-

ceptance of responsibility for his offense.” The defendant

may receive an additional one-level downward adjust-

ment if his base offense level is 16 or higher and he

has “assisted authorities in the investigation or prosecu-

tion of his own misconduct by timely notifying author-

ities of his intention to enter a plea of guilty.” U.S.S.G.

§ 3E1.1(b) (2010). While an enhancement given by the

sentencing court under § 3C1.1 for obstruction of

justice does not automatically preclude a finding that

the defendant also accepted responsibility for his crime,

it generally suggests that the defendant has not

accepted responsibility for his crime. U.S.S.G. § 3E1.1

cmt. n.4; see United States v. Gonzalez, 608 F.3d 1001, 1007-

08 (7th Cir. 2010). This is a presumption that can be

rebutted by the defendant only in “extraordinary cases.” 4

4

U.S.S.G. § 3E1.1 cmt. n.4. The Sentencing Guidelines do not

define the phrase “extraordinary cases.” An example of an

extraordinary case can be found in United States v. Lallemand,

989 F.2d 936 (7th Cir. 1993), where the defendant directed

a friend to destroy evidence in the event that he was ever

arrested, but upon his arrest confessed immediately, con-

sented to a search of his home, and called the friend to tell

him not to destroy the evidence.

14 No. 10-1721

Black contends that his obstructive conduct was

minimal and is outweighed by the showing of his accep-

tance of responsibility. Black admits that he asked his

girlfriend to remove the boots he wore during the

robbery from his residence shortly after he was

arrested; however, he maintains that this was a futile

act because the FBI had already retrieved that evidence

before he attempted to hide it. Black argues that even

if he had successfully disposed of the boots, their

absence would have been of minor significance be-

cause the government had other evidence to use in its

case. Similarly, Black also contends that his attempt to

fabricate an alibi, which he contests was mischarac-

terized, was only minimally obstructive because there

was already evidence linking Black to the robbery.

Black argues that his acceptance of responsibility was

considerable because he entered into a plea agreement

with the government, willingly participated in some of

the investigation, did not falsely deny his conduct, and

did not further obstruct justice after his first attempt to

do so. We find these arguments unpersuasive. The fact

that Black failed in his attempt to conceal evidence

does nothing to convince us that the district court

clearly erred in determining that his case was not “extra-

ordinary.” We do not reward defendants for failed at-

tempts to obstruct justice. Moreover, pleading guilty does

not automatically entitle a defendant to a downward ad-

justment for acceptance of responsibility. U.S.S.G. § 3E1.1

cmt. n.3. Black’s conduct as a whole was inconsistent

with the acceptance of responsibility adjustment, and

we find that the district court did not err in denying

Black a downward adjustment.

No. 10-1721 15

III. CONCLUSION

For the foregoing reasons, we A FFIRM the district

court’s enhancement findings and Black’s sentence.

3-7-11