United States v. Durham

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-1308, 10-1328, 10-1660, 10-1753

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

H AL D URHAM, et al.,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 CR 549—David H. Coar, Judge.

A RGUED M AY 4, 2011 — D ECIDED JUNE 28, 2011

Before E ASTERBROOK, Chief Judge, and F LAUM and S YKES,

Circuit Judges.

F LAUM, Circuit Judge. In July of 2008, defendant-appel-

lants Tony Callion, Hal Durham, Israel Collins, and

Sherman Swopes—along with two other individu-

als—kidnapped Charles Zachary for ransom because he

owed Callion drug money. In response to his kidnappers’

demands, Zachary said that his girlfriend, Luella Dorenzo,

could get the money from the TCF Bank where she

2 Nos. 10-1308, 10-1328, 10-1660, 10-1753

worked. Defendants, unaware that Dorenzo had contacted

law enforcement, arranged a ransom drop with her.

Shortly after obtaining the money, defendants were

arrested. They were charged in a three-count indictment

with (1) conspiracy to commit attempted bank robbery of a

federally-insured bank, in violation of 18 U.S.C. § 371;

(2) attempted bank robbery, in violation of 18 U.S.C.

§ 2113(a); and (3) knowingly using and carrying firearms

during and in relation to a crime of violence, in violation of

18 U.S.C. § 924(c). Collins and Swopes pled guilty

to Counts Two and Three. Callion and Durham went to

trial separately; each was convicted on Counts One and

Two, and acquitted on Count Three. All four defendants

challenge their sentences, and Callion and Durham chal-

lenge their convictions. For the following reasons, we

affirm, except as to Swopes’s sentence, which appears to

have been based in part on a factual misapprehension by

the district court. Consequently, we vacate Swopes’s

sentence and remand the case to the district court for

resentencing.

I. Background

Callion first proposed kidnapping Zachary (who is his

cousin) to Daniel Gibbs in June of 2008, explaining that

Zachary owed him drug money. According to Gibbs, the

original plan was to get a $75,000 ransom, half in drugs and

half in cash. Callion and Gibbs again discussed the kidnap-

ping at a Fourth of July barbeque at Durham’s house.

Natalie Hoisington (Gibbs’s girlfriend) and Durham

(Gibbs’s father) also participated in that conversation,

Nos. 10-1308, 10-1328, 10-1660, 10-1753 3

during which Callion told Gibbs to buy handcuffs and

duct tape.

On the evening of July 9, 2008, Callion called Gibbs and

told him that the kidnapping would happen that night. At

about 9:30 PM , Gibbs, Hoisington, Callion, and Durham

met at Durham’s house. Callion, Gibbs, and Hoisington

went out to find Zachary at around midnight or 1 AM.

Along the way, Callion recruited Collins and Swopes to

join them. All five went to Zachary’s house to wait for

him. When Zachary returned, Swopes and Collins abduc-

ted and handcuffed Zachary, and put him in the back of

the vehicle. The group then drove back to Durham’s house,

where they planned to hold Zachary. While the others

moved Zachary into the house, Gibbs accidentally dis-

charged a shell from the shotgun into the center console of

the vehicle.

Zachary was duct taped to a chair in a room off the

kitchen; duct tape was wrapped around his head to cover

his eyes. Callion and Durham proceeded to use force to

threaten and intimidate their hostage. Durham used an

unloaded .22 caliber revolver to play “Russian Roulette”

with Zachary, hit Zachary in the side of the head with the

revolver, fired a gun loaded with .22 caliber low velocity

power load ammunition at Zachary’s leg, and briefly

brought his pit bull into the room to scare Zachary. Callion

pulled up on Zachary’s toes with a wrench.

Callion knew that Zachary’s girlfriend, Luella Dorenzo,

worked at a bank. He had relayed that fact to Gibbs in May

2008, and mentioned it to the other defendants in the early

hours of July 10th after they abducted Zachary. However,

4 Nos. 10-1308, 10-1328, 10-1660, 10-1753

it was Zachary who, in response to defendants’ ransom

demands, first told Gibbs that he might be able to get the

money from Dorenzo. Gibbs told Callion, Durham,

Swopes, and Collins that Zachary said he would call his

girlfriend. In response, Callion told Gibbs that Zachary

should have Dorenzo get the money out of a safety deposit

box. When Gibbs relayed that message, Zachary told him

there was no safety deposit box, but that she could “get it

from the bank.” Gibbs informed the others of this, and

Callion said “ok.”

With Gibbs’s help, Zachary made a number of calls to

Dorenzo on his cell phone, but she did not pick up. While

trying to reach Dorenzo, Zachary suggested two other

possible sources of ransom money—a woman named

“Nellie” and a man named “Bob.” He placed several calls

to each of them early that morning as well. Between 6 and

7 AM, before Zachary first reached Dorenzo, Callion and

Durham drove to Nellie’s to try and get ransom money

from her. They were unsuccessful, but did not return to

Durham’s house until about 11 AM.

At 7:34 AM Zachary finally reached Dorenzo, who agreed

to get the money from the bank. Callion and Durham were

not there at that time, but Gibbs and Callion remained in

cell phone contact. When Callion learned that Dorenzo had

agreed to get the money, he told Gibbs where Dorenzo

should drop off the ransom.

At some point that morning, law enforcement arrived at

the TCF Bank where Dorenzo worked, and began recording

calls between Zachary’s cell phone and Dorenzo’s cell

phone. During one of those calls, Dorenzo explained that

Nos. 10-1308, 10-1328, 10-1660, 10-1753 5

it would be difficult for her to get out of the bank with the

money, saying, “I mean, this is a bank. It’s hard for me to

just walk out of here like that without them noticing

something.” By the time Callion and Durham returned to

the house, Dorenzo still had not gotten the money. Callion

instructed Gibbs to tell Dorenzo that they “weren’t playing

no more,” and that 12:30 PM was their last call. Shortly after

that call, Dorenzo left the bank with $40,220 in ransom

money provided by TCF Bank in a TCF-labeled bag. A

tracker device and four $20 pre-recorded bait bills were

also in the bag.

Durham retrieved the money. Back at his house, Durham

found the tracking device as he divided up the money.

Initially, he threw it in the neighbors’ yard, but then

instructed Hoisington to go get it and get rid of it. When

Hoisington went outside, she was stopped by officers.

Realizing that the police were there, Callion, Durham,

Gibbs, Swopes, and Collins grabbed the money and tried

to hide upstairs. They were arrested shortly thereafter.

The following morning, FBI Agent Christopher Crocker

interviewed Callion. At Callion’s trial, Crocker testified

that Callion admitted to planning the kidnapping

for ransom, and admitted believing that Dorenzo had a

key to the bank vault. According to Crocker, Callion also

said that, at one point, they demanded that Dorenzo take

all of the money in the bank vault.

Durham also gave a post-arrest interview, during which

he admitted to knowing that Zachary was being held in his

house, that ransom calls were being made to Zachary’s

girlfriend, that Zachary’s girlfriend worked at the TCF

6 Nos. 10-1308, 10-1328, 10-1660, 10-1753

Bank, and that the ransom amount had reached $40,000.

Durham also admitted that he picked up the bank bag

containing the money and tried to dispose of the tracking

device.

On October 9, 2008, a grand jury returned a three-count

indictment against all six participants, charging them with

conspiracy to commit attempted bank extortion of a

federally-insured bank, in violation of 18 U.S.C. § 371

(Count One); attempted bank extortion, in violation of 18

U.S.C. § 2113(a) (Count Two); and knowingly using

and carrying firearms during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c) (Count Three).

Gibbs and Hoisington pled guilty and became cooperating

witnesses.

Swopes pled guilty to Counts Two and Three on October

8, 2009. On March 12, 2010, he was sentenced to 170

months’ imprisonment on Count Two and 120 months’

imprisonment on Count Three, to be served consecutively.

Collins also pled guilty to Counts Two and Three. On

February 1, 2010, he was sentenced to 151 months’ impris-

onment on Count Two and 120 months’ imprisonment

on Count Three, to be served consecutively.

Callion and Durham chose to go to trial. Callion success-

fully moved to sever his trial from Durham’s. On October

28, 2009, a jury convicted Durham on Counts One and Two,

and acquitted him on Count Three. Durham was sentenced

to concurrent sentences of 60 months’ imprisonment on

Count One and 188 months’ imprisonment on Count Two

on February 1, 2010. On November 20, 2009, a jury simi-

larly found Callion guilty on Counts One and Two, and

Nos. 10-1308, 10-1328, 10-1660, 10-1753 7

acquitted him on Count Three. On March 5, 2010, Callion

was sentenced to concurrent sentences of 60 months’

imprisonment on Count One and 240 months’ imprison-

ment on Count Two. All defendants appeal their sentences;

Callion and Durham challenge their convictions as well.

II. Discussion

A. Questioning of Agent Crocker

As discussed below, Callion challenges the sufficiency of

the evidence supporting his convictions on Counts One

and Two. As part of those challenges, Callion contends that

the district court erred in allowing the government to elicit

a substantial portion of FBI Agent Crocker’s testimony

on direct examination by asking leading questions.

Callion’s counsel did not object to the line of questioning

at trial, and therefore this Court’s review is for plain error.

Under plain-error review, a defendant must show that

(1) there was error; (2) it was plain; (3) it affected his

substantial rights; and (4) the court should exercise its

discretion to correct the error because it seriously affected

the fairness, integrity or public reputation of the judicial

proceedings. United States v. Olano, 507 U.S. 725, 732-

35 (1993).

Rule 611(c) of the Federal Rule of Evidence provides that

“[l]eading questions should not be used on the direct

examination of a witness except as may be necessary

to develop the witness’ testimony,” or “[w]hen a party calls

a hostile witness, an adverse party, or a witness identified

with an adverse party.” Agent Crocker was neither hostile

8 Nos. 10-1308, 10-1328, 10-1660, 10-1753

nor adverse to the government—indeed, he was a govern-

ment witness. And the government did not limit itself to

developing parts of Crocker’s testimony via leading

questions; rather, prosecutors used leading questions to

elicit the bulk of Crocker’s substantive testimony regarding

Callion’s post-arrest statement.

The government maintains that it asked leading ques-

tions to ensure that Agent Crocker did not testify regarding

portions of Callion’s statement that the district judge had

ruled were inadmissible. Specifically, the district court had

granted the government’s motion in limine to admit

portions of Callion’s statement, not including statements

that were inadmissible as self-exculpatory hearsay state-

ments or irrelevant statements. According to the govern-

ment, it asked leading questions in an effort to avoid

violating the motion in limine.

We are not persuaded that an agent with more than six

years of experience, like Agent Crocker, requires the degree

of government guidance that occurred here. In United

States v. Meza-Urtado, 351 F.3d 301, 303 (7th Cir. 2003),

we suggested that the allowance of improperly leading

questions will rarely constitute plain error because, in

the face of a sustained objection, most lawyers can rephrase

a leading question to elicit the desired testimony. How-

ever, we recognize that valid concerns regarding the

overuse of leading questions exist. See United States

v. McGovern, 499 F.2d 1140, 1142 (1st Cir. 1974) (noting that

leading questions “may supply a false memory” in

a friendly witness); United States v. Durham, 319 F.2d

590, 592 (4th Cir. 1963) (same); Stine v. Marathon Oil Co.,

Nos. 10-1308, 10-1328, 10-1660, 10-1753 9

976 F.2d 254, 266 (5th Cir. 1992) (suggesting that leading

questions may inhibit the jury’s ability to “make credibility

determinations” if permitted in “controverted substantive

areas”). In light of those concerns, the government should

resist crossing the line from developing a witness’s testi-

mony to effectively testify for that witness. See Stine,

976 F.2d at 266.

But even if there may be the rare case in which leading

questions result in prejudice to a defendant, this is not that

case. Crocker’s typed report of the post-arrest interview

appears in the record, and is entirely consistent with his

testimony. Therefore, we have no doubt that if Callion’s

counsel had timely objected, the prosecutor could have

rephrased the questions to elicit the same testimony from

Agent Crocker.

B. Callion and Durham’s Sufficiency of the Evidence

Claims

1. Count Two

Both Callion and Durham contend that the government

presented insufficient evidence to support a guilty verdict

on Count Two, attempted bank extortion in violation of 18

U.S.C. § 2113(a). The relevant portion of U.S.C. § 2113(a)

states:

Whoever, by force and violence, or by intimidation,

takes, or attempts to take, from the person or presence

of another, or obtains or attempts to obtain by extortion

any property or money or any other thing of value

belonging to, or in the care, custody, control, manage-

10 Nos. 10-1308, 10-1328, 10-1660, 10-1753

ment, or possession of, any bank . . . [s]hall be fined

under this title or imprisoned not more than twenty

years, or both.

According to Callion and Durham, there is no evidence

that they knew the ransom money belonged to the bank,

and therefore no reasonable jury could have found that

they possessed the requisite intent—namely, the intent to

“obtain by extortion . . . money . . . belonging to, or in the

care, custody, control, management, or possession of, any

bank.” 18 U.S.C. § 2113(a).1

1

The parties presume that attempted bank robbery under

§ 2113(a) is a specific intent crime because, at common law,

attempt offenses carry a requirement that the defendant specifi-

cally intend to commit the underlying crime. United States

v. Coté, 504 F.3d 682, 687 (7th Cir. 2007). But § 2113(a) contains

no explicit mens rea requirement, and it is well established that

bank robbery under § 2113(a) is a general intent crime, not a

specific intent crime. See Carter v. United States, 530 U.S. 255, 269-

70 (2000); United States v. Fazzini, 871 F.2d 635, 641 (7th Cir.

1989). Neither this Court nor the Supreme Court has decided

whether specific intent is an essential element of attempted bank

robbery in violation of § 2113(a); our sister circuits are split on

the issue. Compare United States v. Darby, 857 F.2d 623, 626 (9th

Cir. 1988) (attempted bank robbery under § 2113(a) requires the

specific intent to take the property by force, violence or intimi-

dation), with United States v. Johnston, 543 F.2d 55, 57-58 (5th Cir.

1976) (attempted bank robbery under § 2113(a) is not specific

intent crime) and United States v. Armstrong, 116 F.3d 489 (10th

Cir. 1997) (unpublished) (same). We need not decide the issue to

address defendants’ argument here.

(continued...)

Nos. 10-1308, 10-1328, 10-1660, 10-1753 11

Callion and Durham maintain that the evidence demon-

strates that they simply intended to steal money from

Zachary. While Callion and Durham concede that eventu-

ally they knew the money was coming from the bank, they

contend that the government failed to show that they knew

that it was the bank’s money, as opposed to Zachary’s bank

deposits. Moreover, they maintain that they learned that

the ransom was coming from the bank after the demand

had been made, and therefore after the crime of extortion

was complete.

1

(...continued)

In order to convict a defendant of a general intent crime, the

government must prove only that the defendant “consciously

and voluntarily [engaged] in the proscribed conduct.” United

States v. Bates, 96 F.3d 964, 967 (7th Cir. 1996). The conduct at

issue here is “attempt[ing] to obtain by extortion . . . money . . .

belonging to, or in the care, custody, control, management, or

possession of, any bank.” 18 U.S.C. § 2113(a). Specific intent

crimes require additional proof of the defendant’s “intent to

effectuate a particular result.” Bates, 96 F.3d at 967. Here, a

specific intent requirement would require the additional proof

that defendants intended to steal the money. Carter, 530 U.S. at

268-69.

Defendants’ contend that the evidence is insufficient to show

that they knew the money belonged to the bank. That argument

relates to their general intent — whether they “possessed

knowledge with respect to the actus reus of the crime.” Id. at 268.

Therefore, the distinction between specific and general intent is

not relevant here.

12 Nos. 10-1308, 10-1328, 10-1660, 10-1753

This court has described the task of successfully chal-

lenging a conviction based on insufficient evidence as “a

daunting one, as the standard of review . . . is necessarily

rigorous.” United States v. Curtis, 324 F.3d 501, 505 (7th

Cir. 2003). If we conclude that any rational trier of fact,

viewing the evidence in the light most favorable to the

prosecution, could have found the essential elements of the

crime beyond a reasonable doubt, then the conviction must

be upheld. Id. Only if the record is devoid of evidence from

which a reasonable jury could find guilt beyond a reason-

able doubt will a conviction be overturned. Id.

We have little trouble concluding that Callion’s challenge

fails. Agent Crocker testified that Callion admitted in his

post-arrest statement to knowing that, at one point,

Zachary told Dorenzo the demand was for her to empty

the bank’s entire vault. That testimony demonstrates that

Callion knew that the money was to be stolen from the

bank. Even apart from Agent Crocker’s testimony, there

was sufficient evidence for a jury to conclude that Callion

knew the plan was to steal money from the bank. Specifi-

cally, Gibbs testified that Callion knew money was coming

“from the bank,” and knew that it was not coming from

a safety deposit box. Viewing that testimony in the

light most favorable to the prosecution, a rational

jury could also have found beyond a reasonable doubt that

Callion understood that the scheme involved robbing

the bank. Moreover, even if Callion thought that Dorenzo

would withdraw the funds from Zachary’s account, a

jury could find the requisite intent because, under our case

law, where a “robber forces [a] bank’s customer to with-

draw . . . money, the customer becomes the unwilling agent

Nos. 10-1308, 10-1328, 10-1660, 10-1753 13

of the robber, and the bank is robbed.” United States v.

McCarter, 406 F.3d 460, 463 (7th Cir. 2005) overruled on other

grounds by United States v. Parker, 508 F.3d 434, 440-

41 (7th Cir. 2007).

While the evidence of Durham’s intent is less over-

whelming, it nevertheless is sufficient to support his

conviction for attempted bank extortion when viewed

in the light most favorable to the government. Durham

was present when Gibbs told Callion that Dorenzo would

get the money from the bank, and, in his post-arrest

statement, Durham stated that he knew Dorenzo worked

at a bank and that he overheard some of the ransom calls

to her. A reasonable fact finder could have concluded

from that evidence that Durham understood that the

scheme involved obtaining the ransom money from the

bank vault.

We also are not persuaded by the argument that

the evidence demonstrates that Callion and Durham did

not become involved in the bank extortion (if at all) until

after the offense was completed. Gibbs testified that

Callion approved the plan for Dorenzo to get the money

from the bank before Zachary ever reached Dorenzo on

the phone to relay the demand. Durham was present

for that conversation. Therefore, we must affirm Callion

and Durham’s convictions on Count Two.

2. Count One

Callion and Durham also raise sufficiency of the evidence

challenges to their convictions on Count One, conspiracy

14 Nos. 10-1308, 10-1328, 10-1660, 10-1753

to rob a federally-insured bank, in violation of 18 U.S.C.

§ 371. One element of a charge of conspiracy to defraud the

United States, in violation of § 371, is intent to commit the

substantive offense. United States v. Cueto, 151 F.3d 620,

635 (7th Cir. 1998). Callion and Durham maintain that the

government presented insufficient evidence of their intent

to commit bank robbery. For the reasons stated above with

respect to Count Two, we conclude that the government

presented sufficient evidence from which a reasonable jury

could conclude that Callion and Durham possessed the

requisite intent to commit the substantive offense of bank

extortion.

C. Response to Jury Question During Callion’s Trial

During its deliberations, the jury at Callion’s trial submit-

ted the following question to the judge:

If the defendant is found guilty on Count 1 [conspiracy

to extort], does the clause for Count 2 [attempt to

extort] stating, “a defendant’s presence at the scene of

crime and knowledge that a crime being committed is

not alone sufficient to establish the defendant’s guilt;

a defendant’s mere association with conspirators is not

by itself sufficient to prove his participation or mem-

bership in a conspiracy” still apply?

The judge responded by instructing the jury to re-read the

instructions. Callion’s counsel objected, requesting that the

judge answer the jury’s question in the affirmative. In view

of the timely objection, we review the district court’s

Nos. 10-1308, 10-1328, 10-1660, 10-1753 15

response for abuse of discretion. United States v. Carani,

492 F.3d 867, 874 (7th Cir. 2007) (citation omitted).

A district court’s discretion in deciding how to respond

to a jury question is quite broad, but the court has an

obligation to exercise that discretion in a way that

“dispel[s] any confusion quickly and with concrete accu-

racy.” Id. (citation omitted). Here, the jury expressed

confusion regarding whether a portion of the instructions

applied under certain circumstances. We believe that re-

reading the instructions as the district court directed

would have dispelled that confusion. The instructions

directed the jury to “give separate consideration to each

count,” and advised that “your verdict of guilty or not

guilty of an offense charged in one count should not

control your decision under any other count, except as

instructed otherwise in these instructions.”

As we have held in the past, a judge does not err by

instructing the jury to re-read the instructions in response

to a question, so long as the original jury charge clearly and

correctly states the applicable law. United States v. Mealy,

851 F.2d 890, 902 (7th Cir. 1988). There is no dispute here

that the jury instructions were accurate.

Moreover, the affirmative answer Callion’s counsel

requested might have confused the jury. The instructions

also included an instruction allowing the jury to find

Callion guilty on Count Two under a Pinkerton v. United

States, 328 U.S. 640 (1946), theory. The Pinkerton instruc-

tion provided:

16 Nos. 10-1308, 10-1328, 10-1660, 10-1753

A conspirator is responsible for offenses committed by

his or her fellow conspirators if he or she was a mem-

ber of the conspiracy when the offense was committed

in furtherance of and as a foreseeable consequence of

the conspiracy.

Therefore, if you find the defendant guilty of the

conspiracy charged in Count One and if you find

beyond a reasonable doubt that while he was a mem-

ber of the conspiracy, one or more of his fellow con-

spirators committed the offenses charged in Count

Two . . . , in furtherance of and as a foreseeable conse-

quence of that conspiracy, then you should find the

defendant guilty of [Count Two].

Thus, if the jury found Callion guilty on the conspiracy

count (as the question indicated it had), it could have

convicted him on Count Two under a Pinkerton theory.

Because neither Callion’s presence when the extortion

was committed, nor his knowledge of that a crime, is

relevant under a Pinkerton analysis, answering the jury

question in the affirmative might have been misleading.

For these reasons, we conclude that the district court

did not abuse its discretion by responding to the jury

question as it did.

D. Application of § 2B3.2(b)(4)(A) Enhancement to

Callion and Durham’s Sentences

In sentencing both Callion and Durham, the district court

imposed U.S.S.G. § 2B3.2(b)(4)(A)’s two-level enhance-

ment for causing bodily injury to “any victim” in the

Nos. 10-1308, 10-1328, 10-1660, 10-1753 17

commission of the offense of extortion by force or threat of

injury or serious damage, concluding that Zachary was

such a victim. Callion and Durham contend that, for

purposes of § 2B3.2(b)(4)(A), the only possible victims of

the crime of attempted extortion are the bank and

the United States. Reviewing the district court’s interpreta-

tion of the sentencing guidelines de novo, United States

v. Veazey, 491 F.3d 700, 706 (7th Cir. 2007), we decline to

adopt that narrow reading of the phrase “any victim.”

As Callion and Durham note, at times, § 2B3.2(b) uses the

phrase “the victim” to refer to the target of an extortionate

demand. § 2B3.2(b)(2) (discussing “the loss to the victim”);

application note 5 (defining “loss to the victim” as

“any demand paid plus any additional consequential loss

from the offense”). However, the application notes indicate

that the provision uses the phrase “any victim” to identify

a broader category of individuals. In particular, application

note 7 states that “[i]f the offense involved the threat of

death or serious bodily injury to numerous victims (e.g., in

the case of a plan to derail a passenger train or poison

consumer products), an upward departure may be war-

ranted.” As the First Circuit has observed, in that example,

“the train passengers are ‘victims’ of the train derailment

extortion scheme even though the extortionate demand is

not made of the passengers themselves.” United States

v. Hughes, 211 F.3d 676, 691 (1st Cir. 2000). Application

note 7 cannot be reconciled with defendants’ nar-

row reading of § 2B3.2(b). In addition, the use of the

modifier “any” in § 2B3.2(b)(4)(A) supports our broader

reading of that provision. See id. (“the use of the indefinite

article [any] suggests a class of potential victims broader

18 Nos. 10-1308, 10-1328, 10-1660, 10-1753

than the target or targets of the extortionate demand”);

United States v. Sickinger, 179 F.3d 1091, 1094 (8th Cir.

1999) (finding there to be “a meaningful distinction

between the ‘any victim’ language . . . and the ‘the victim’

language,” as those phrases are used in the Guidelines);

United States v. Malpeso, 115 F.3d 155, 169 (2d Cir. 1997)

(explaining that the Guidelines generally use “the victim”

to refer to a single intended victim, and “any victim” to

refer to the broader group of those affected by the crime).

Finally, our reading of the phrase “any victim” in

§ 2B3.2(b)(4)(A) also is consistent with our decision in

United States v. Maiden, 606 F.3d 337, 339-40 (7th Cir. 2010),

in which we affirmed the application of the bodily injury

enhancement where a bank teller was injured by the use of

pepper spray. There, the bank, not the teller, was the target

of the extortionate demand. For these reasons, we conclude

that the district court properly determined that Zachary

was a victim within the meaning of § 2B3.2(b)(4)(A).

E. Collins’s Sentence

The Sentencing Guidelines designate any defendant

convicted of a “crime of violence or a controlled substance

offense” who also has at least two prior felony convictions

of either a crime of violence or a controlled substance

offense as a “career offender.” See § 4B1.1; United States

v. Woods, 576 F.3d 400, 403 (7th Cir. 2009). In sentencing

Collins, the district court found him eligible to be sen-

tenced under Guideline § 4B1.1 as a career offender based

on previous convictions for possession of a controlled

Nos. 10-1308, 10-1328, 10-1660, 10-1753 19

substance with intent to deliver and aggravated battery.

The court then sentenced Collins to a low-end guidelines

sentence of 151 months on Count Two and to the 120

month mandatory minimum on Count Three, and ordered

that the sentences be served consecutively as is mandated

by 18 U.S.C. § 924(c).

Collins raises several challenges to his sentence. First, he

maintains that the district court erred in applying the 120-

month enhancement under 18 U.S.C. § 924(c)(1)(A)(iii)

for discharging a firearm “during and in relation to any

crime of violence,” because Gibbs’s shotgun discharge was

accidental. As the district court properly concluded,

an accidental firearm discharge can trigger the 10-year

mandatory minimum because § 924(c) does not include an

intent to discharge the firearm requirement. Dean v.

United States, 129 S.Ct. 1849, 1855-56 (2009) (“[t]he 10-year

mandatory minimum applies if a gun is discharged in

the course of a violent or drug trafficking crime, whether

on purpose or by accident.”). Contrary to Collins’s reading

of Dean, we do not believe the Supreme Court intended to

limit Dean to cases in which the accidental gunshot might

hurt or scare victims. While the Court noted that such

accidents “increase[] the risk that others will be injured,

that people will panic, or that violence (with its own

danger to those nearby) will be used in response,” it

did not condition its holding on the existence of an in-

creased risk or intimidation. Id.

Second, Collins contends that the district court errone-

ously treated the career criminal guidelines as mandatory.

An examination of the sentencing hearing transcript belies

20 Nos. 10-1308, 10-1328, 10-1660, 10-1753

that claim. After recognizing that judges can refuse to

follow the guidelines if they disagree with the policy, the

sentencing judge expressly stated that he did not disagree

with the policy behind the career offender guidelines in

Collins’s case. The judge explained that while he does

disagree with the policy “where the triggering offenses are

minor drug offenses,” he had no disagreement with the

policy “as it’s applied in this case,” noting Collins’s long

criminal history and the fact that he was charged with

possessing a gun after a felony conviction. Collins main-

tains that the judge must have thought the guidelines were

mandatory because one of Collins’s two triggering offenses

was a minor drug conviction. We disagree. Collins’s other

triggering offense was an aggravated battery conviction for

which he was sentenced to ten years imprisonment and

served four. Moreover, Collins had a long criminal history,

which placed him in criminal history category VI, the

highest of the criminal history categories. The transcript

indicates that the combination of the violent battery

conviction and Collins’s criminal background convinced

the district judge that deviation from the career criminal

guidelines was not warranted in Collins’s case, not that the

judge overlooked the guidelines’ advisory nature.

Third, Collins argues that the district court erroneously

considered arrest reports cited in the presentence investi-

gation report in determining his sentence. Under Shepard

v. United States, 544 U.S. 13 (2005), a sentencing court may

not consider police reports to determine whether a prior

conviction meets the definition of a crime of violence or a

controlled substance offense for purposes of classifying a

defendant as a career offender. Here, the district court

Nos. 10-1308, 10-1328, 10-1660, 10-1753 21

considered the contents of an arrest report, not to classify

Collins’s prior convictions, but to conclude that a deviation

from the career criminal guidelines was unwarranted.

Specifically, the court referenced a 1996 arrest report for

unlawful use of a firearm by a felon, which indicated that

Collins was arrested on a signed complaint that he struck

two female victims in the face and threatened to kill them

while menacing them with the pistol. Collins was con-

victed of that offense.

Because the court did not rely on the arrest reports to

identify Collins’s qualifying offenses, it did not run afoul

of Shepard. We have noted that district courts may “con-

sider the underlying conduct detailed in arrest records

where there is a sufficient factual basis for the court to

conclude that the conduct actually occurred.” United States

v. Guajardo-Martinez, 635 F.3d 1056, 1059 (7th Cir. 2011).

The defendant bears the burden of showing that the

presentence report is inaccurate or unreliable, and “a

defendant’s bare denial of information in a presentence

report is insufficient to challenge its accuracy and reliabil-

ity.” United States v. Turner, 604 F.3d 381, 385 (7th Cir. 2010)

(citation and quotations omitted). Here, all we have

is Collins’s claim at the sentencing hearing that the victims

were lying; that bare denial is insufficient to undermine the

information relied on by the district court in refusing to

deviate below the guidelines range.

Finally, Collins claims that his sentence was unreason-

ably high as compared to Callion and Durham. Because

Collins received a guidelines sentence, that sentence is

entitled to a presumption of reasonableness, which Collins

22 Nos. 10-1308, 10-1328, 10-1660, 10-1753

can rebut only by demonstrating that his sentence is

unreasonable when measured against the § 3553(a) factors.

United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.

2005). One of the factors set forth in § 3553(a) is “the need

to avoid unwarranted sentence disparities among defen-

dants with similar records who have been found guilty of

similar conduct.” 18 U.S.C. § 3553(a)(6) (emphasis added).

As we have explained in the past, the purpose of

§ 3553(a)(6) is to eliminate unjustified sentencing dispari-

ties “across judges (or districts) rather than among defen-

dants to a single case.” United States v. Davila-Rodriguez,

468 F.3d 1012, 1014 (7th Cir. 2006); see also United States v.

Omole, 523 F.3d 691, 700 (7th Cir. 2008) (a discrepancy

between sentences of co-defendants is not a basis

for challenging a sentence). Therefore, Collins’s argument

is misplaced.

Moreover, even if we were to compare Collins’s sentence

to those of Callion and Durham, we would not conclude

that Collins’s sentence is unreasonably high. Section

3553(a)(6) applies to defendants with similar records who

have been found guilty of similar conduct. Collins is not

similar to Callion and Durham in either of those regards.

He had a more extensive criminal record, which put him in

criminal history category VI, while Callion was in criminal

history category II and Durham was in criminal history

category III. In addition, Collins pled guilty to different

offenses than those for which Callion and Durham were

convicted. Collins pled guilty to Counts Two and Three,

whereas Callion and Durham were convicted of Counts

One and Two, and acquitted on Count Three. The offense

Nos. 10-1308, 10-1328, 10-1660, 10-1753 23

charged in Count Three carries a mandatory minimum

sentence that must be served consecutively to any other

sentence. See 18 U.S.C. § 924(c). That distinction alone

explains much of the disparities in the sentences. For the

foregoing reasons, we affirm Collins’s sentence.

F. Swopes’s Sentence

Like Collins, Swopes was sentenced as a career offender

pursuant to § 4B1.1. The district court calculated the

guideline range on Count Two to be 151 to 188 months, and

sentenced Swopes to 170 months on that count. The court

sentenced Swopes to the statutory minimum of 120 months

on Count Three, and ordered the sentences to be served

consecutively, as 18 U.S.C. § 924(c) requires. Swopes

raises several challenges to his sentence.

Swopes first contends that the district court failed to

address one of his primary arguments in favor of a lower

sentence, which we have held to be error. See United States

v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). At

the sentencing phase, Swopes asked the court to consider

his mental impairment as a mitigating factor. Swopes

relied on two psychological evaluations to support his

claim of mental impairment.

In the spring of 2009, Bureau of Prisons Psychologist Dr.

Ron Nieberding evaluated Swopes in order to determine

his competency to stand trial. Dr. Nieberding diagnosed

Swopes with a number of mental disorders including

borderline intellectual functioning, cannabis abuse in

remission, depression disorder not otherwise specified,

24 Nos. 10-1308, 10-1328, 10-1660, 10-1753

and anti-social personality disorder. Dr. Nieberding

reported that Swopes’s IQ is between 70 and 79, which is

well below average. At age 17, Swopes was assaulted with

a baseball bat and pistol butt. Dr. Nieberding opined that

the head injury Swopes suffered in that attack might have

“residual effects” on Swopes, but that “his current func-

tioning is likely to be influenced to a greater extent by his

life style choices (i.e., chronic substance abuse, criminal

behavior), and emotional factors (i.e., underdeveloped

coping skills, poor frustration tolerance).” Dr. Nieberding

nevertheless found Swopes to be competent to stand trial.

In preparation for sentencing, Dr. Robert Hanlon per-

formed a neuropsychological examination of Swopes. Dr.

Hanlon reported that Swopes has an IQ of 74, and opined

that Swopes “manifests multiple cognitive and intellectual

deficits that represent a disabling mental impairment.”

Based on the inverse correlation between education and

crime, Dr. Hanlon opined that psychological counseling

and further education “may be expected to potentially

decrease the likelihood of future criminal behavior for

inmates like Mr. Swopes.”

Based primarily on Dr. Hanlon’s report, counsel for

Swopes argued that Swopes’s mental impairment should

be considered a mitigating factor because it made him a

good candidate for rehabilitation. The sentencing judge

addressed that argument and rejected it, reasoning that

Dr. Hanlon’s opinion was of little value because Dr.

Hanlon had made no specific prediction regarding

the degree to which Swopes would benefit from education

Nos. 10-1308, 10-1328, 10-1660, 10-1753 25

and treatment based on his individual potential and prior

history.

Swopes now argues that the district court should have

considered his mental impairment to be a mitigating factor

because it reduced his culpability. Swopes made no such

argument below. Consequently, it fails for two reasons.

First, the argument is waived. Tully v. Barada, 599 F.3d

591, 594 (7th Cir. 2010). Second, below, Swopes sought to

have the court consider his mental impairments under

§ 3553(a)(1), which identifies “the history and characteris-

tics of the defendant” as an appropriate sentencing consid-

eration. He did not argue that he suffered from a dimin-

ished capacity—meaning an inability to understand the

wrongfulness of his actions or to control his actions—that

substantially contributed to the commission of the offense.

See Application Note to U.S.S.G. § 5K2.13. As we

explained in United States v. Portman, 599 F.3d 633 (7th Cir.

2010), the distinction between diminished capacity

and personal characteristics that either increase or decrease

the risk of recidivism (i.e., aggravating or mitigating

factors) is an important one. A finding of diminished

capacity should never be treated as an aggravating factor

for sentencing purposes. Id. at 138. By contrast, a defendant

must show why a particular personal characteristic,

such as a low IQ, acts as a mitigating factor, as opposed to

an aggravating one. See id. at 138 (noting that age could be

a mitigating or aggravating factor); United States v.

Beier, 490 F.3d 572, 574 (7th Cir. 2007) (defendant must

show why particular characteristics, including low IQ,

“require a shorter sentence or a longer sentence than

would be appropriate for a defendant who lacked those

26 Nos. 10-1308, 10-1328, 10-1660, 10-1753

characteristics”). Here, Swopes never argued that his

mental impairments should be treated as mitigating

because they reduced his culpability, and therefore the

district court did not err in not treating them as such. The

district court gave due consideration to the only argument

Swopes advanced for why his mental impairments should

be considered a mitigating factor, and reasonably rejected

it.

Swopes belatedly advances a diminished capacity

argument here, but he waived that argument as well. Tully,

599 F.3d at 594. In any event, the district court could not

have found that any diminished capacity Swopes allegedly

suffered substantially contributed to his commission of the

crimes based on the evidence before it. A diminished

capacity finding will be made where the defendant (1)

could not understand the wrongfulness of his behavior or

could not control that behavior at the time of the offense,

and (2) that significantly reduced mental capacity contrib-

uted substantially to the commission of the offense.

See U.S.S.G. § 5K2.13; Portman, 599 F.3d at 637. Neither of

the reports on which Swopes relies indicates that he could

not understand the wrongfulness of his conduct or control

his behavior at the time of the offense. Nor does Swopes

even attempt to demonstrate the requisite connection

between his mental capacity and the actions underlying his

crimes. That connection cannot be assumed. Id. at 639.

With respect to his mental impairment, Swopes also

argues that the district court erred by treating that charac-

teristic as an aggravating factor. We find nothing in the

sentencing transcript to support that contention. For that

Nos. 10-1308, 10-1328, 10-1660, 10-1753 27

reason, and those above, we conclude that the district court

did not err in its consideration of Swopes’s mental impair-

ment for sentencing purposes. Before moving on, however,

we note that the government did argue that Swopes’s

mental capacity should be treated as an aggravating factor.

During the sentencing hearing, the prosecutor stated that

“if anything [Swopes’s mental capacity] shows a greater

danger, because it appears that not every person who has

a borderline intelligence is out there committing violent

crimes, but Mr. Swopes is. And that makes him a greater

danger to society. And I think that that has to be consid-

ered in making his sentence.” The government’s contention

in its brief that “it never argued that defendant’s cognitive

impairments alone made him a danger to society” appears

specious.

Like Collins, Swopes argues that his sentence was

unreasonably high in comparison to those of his co-defen-

dants. Because Swopes has not demonstrated an unjustifi-

able disparity between the length of his sentence and

“all other similar sentences imposed nationwide,” we will

not disturb his sentence. Omole, 523 F.3d at 700 (citation

omitted, emphasis in original).

Finally we reach the objection we consider meritorious.

Swopes maintains that the district court committed a

significant procedural error in sentencing by relying on a

clearly erroneous fact—that Swopes had prior involvement

with guns. During sentencing, the district judge stated:

“Obviously his prior encounters with the criminal justice

system, and there were a lot, didn’t deter him from quickly

signing on to do this lick. And his prior involvement with

28 Nos. 10-1308, 10-1328, 10-1660, 10-1753

violent offenses, drugs and guns, means that he does

represent a risk to the community.” In fact, Swopes had

no prior convictions involving the use of firearms. Because

Swopes failed to object to that error at the sentencing

hearing, we review for plain error.

The government contends that the district court’s

reference to guns was not an error, but a reference to

Swopes’s use of a firearm in this case. Despite our efforts,

we cannot conclude that the proposed interpretation is a

fair reading of the transcript. That makes two troubling

representations of the record by the government in relation

to Swopes’s sentencing hearing. Needless to say, inten-

tional or not, such questionable observations are regretta-

ble from any litigant, and are particularly unsettling

when they come from the government. All of that is to

say we agree with Swopes that the district court appears to

have misapprehended the record with respect to his past

use of firearms.

Having determined that a plain error occurred, we turn

to whether that error affected Swopes’s substantial rights

by resulting in a different sentence than he otherwise

would have received. United States v. Corona-Gonzalez, 628

F.3d 336, 341 (7th Cir. 2010). In selecting Swopes’s sen-

tence, the district court focused on the violent nature of the

crime, the fact that Swopes readily agreed to participate

despite having been paroled just nine months earlier, and

Swopes’s significant criminal history, which the judge

apparently believed included the use of firearms. While the

court mentioned guns only once, based on our reading of

the transcript, we conclude that it is “not improbable that

Nos. 10-1308, 10-1328, 10-1660, 10-1753 29

the trial judge was influenced by improper factors in

imposing sentence.” Rizzo v. United States, 821 F.2d

1271, 1274 (7th Cir. 1987) (internal quotation marks omit-

ted). Finally, we conclude that a sentence potentially based

on an erroneous fact affects the fairness, integrity, and

public reputation of the proceeding. Corona-Gonzalez,

628 F.3d at 342.

We consequently vacate Swopes’s sentence and remand

the case to the district court for resentencing. On remand,

the district court simply must reassess the sentence

without the factual error referenced above. No other

aspects of the original sentencing procedure are to be

reconsidered.

III. Conclusion

For the reasons set forth above, we A FFIRM Callion and

Durham’s convictions and sentences, as well as Collins’s

sentence. Swopes’s sentence is V ACATED , and the case is

R EMANDED solely to give the district court the opportunity

to reconsider Swopes’s sentence free from any misappre-

hension regarding his prior use of firearms.

6-28-11