The opinion
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-4208 & 01-1882
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT MARO,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 635--Wayne R. Andersen, Judge.
Argued September 20, 2001--Decided November 8, 2001
Before BAUER, MANION, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. One of the
questions presented in this appeal is
whether Robert Maro is a "career
offender" under the United States
Sentencing Guidelines. What cannot be in
question, however, is that Maro is a very
unsuccessful serial robber of banks.
Soon after his latest crime spree, Maro
was charged with two counts of bank
robbery, in violation of 18 U.S.C. sec.
2113(a): one was a July 6, 1999, robbery
of the Firstar Bank in Geneva, Illinois;
the other was the August 20, 1999,
robbery of the First American Bank, also
in Geneva. After his motion to suppress
evidence was denied, he went to trial
before a jury, which convicted him on
both counts. His motion for a new trial
was denied, and he was sentenced to 210
months in prison. He appeals both his
sentence and the denial of his request
for a "Franks" hearing in regard to his
suppression motion.
At trial, teller Jamie Nichols testified
that a white male, approximately 5’ 7"
tall, with an average build, wearing a
baseball cap, a gray sweatshirt, jeans,
and sunglasses, approached her teller
window at the Firstar Bank. The man
pushed a checkbook cover toward her that
contained a post-it note stating, "Give
me all your 50s and 20s now. I have a
gun." The total take from the robbery was
$1,900. Nichols identified Maro as the
robber; she was "absolutely positive" of
her identification.
First American Bank teller Susan
Rosenstein said the person who robbed
that bank was a white male a little tall
er than 5’ 7" with a slight build and a
mustache. He approached Rosenstein’s
teller window and held open a checkbook
containing a note that stated: "Give me
all your 50s, 20s, 10s, and 5s. This is
a robbery. This is no joke. I have a
gun." When Rosenstein hesitated, the
robber made a gesture as though he were
reaching for a gun. She then handed the
robber a bundle of 20s totaling $500, as
well as all of the loose 50s and 20s in
her drawer. This time the robber obtained
$1,830. The robber told Rosenstein to be
quiet; he left the bank and began
running.
At the same time, a very alert fellow
named Michael Koehlar was working as a
construction supervisor at a site across
the parking lot from the bank. He
testified that at approximately 1:20 p.m.
he saw a person sprinting from the First
American Bank into a nearby parking lot
and then saw a red Ford Taurus driving
from that section of the parking lot
towards him. Koehlar testified that both
the person he saw running from the bank
and the driver of the Taurus were wearing
white baseball caps and that the driver
also had dark sunglasses and a large
mustache that looked fake. Because
Koehlar felt that the individual running
from the bank and the "way he was
driving" were suspicious, he focused on
the car’s license plate and recorded it
on a piece of drywall at the construction
site. Four minutes later, police cars
pulled into the parking lot, and Koehlar
advised them of what he had seen. He gave
the police the number he recorded--
C863096--but he said he was not certain
of the last three numbers. From a
photograph, Koehlar later identified the
defendant’s car as the red Ford Taurus.
License plate number C863096 was not
registered to a Ford Taurus, but when
agents transposed the last two numbers
recorded by Koehlar and traced C863069,
they discovered that a 1993 Ford Taurus
was, in fact, registered in the name of
the defendant, Robert Maro. Agents then
investigated Maro’s criminal record and
learned that he had committed eight bank
robberies in 1989, had been released from
federal custody in September 1997, and
was on federal supervised release. Agents
also learned from Maro’s probation
officer that he was 5’ 8" tall, 165
pounds, and 38 years old, with brown hair
and brown eyes.
Special Agent Beth Mullarkey of the FBI
filed a request for a search warrant for
Maro’s residence and car. The warrant was
issued and FBI agents and Geneva police
officers conducted a search of Maro’s
Ford Taurus, during which they recovered
a post-it note in the glove compartment
with some calculations on it and the
number 1830--which was the exact dollar
amount taken in the First American
robbery. Maro’s checkbook and check
register were also found in the glove
compartment; the register indicated that
the defendant had written $2,300 in
checks on the day of the First American
robbery. Amazingly, deposit slips in the
checkbook, notations in the check
register, and Maro’s bank records further
showed $800 in cash deposits during the
week after the Firstar robbery, a $700
cash deposit at 2:33 p.m. on the day of
the First American robbery, and an
additional $900 in cash deposits in the 4
days following the First American
robbery. It was stipulated that Maro’s
ordinary income could not account for the
cash deposits and that he had no other
bank accounts.
From a pouch behind the passenger seat
of the Taurus, agents recovered a false
mustache, a bottle of spirit gum for
applying the mustache, and a receipt
indicating that the items were purchased
between the time of the Firstar and First
American robberies. Under the driver’s
seat, agents discovered a gray sweatshirt
similar to the one worn in the bank
robberies, together with baseball caps.
In the spare tire compartment in the
trunk, they found a pair of pants and
another baseball cap. Maro was arrested.
Witnesses from the Firstar and First
American Banks viewed a lineup. Nichols,
the teller from Firstar Bank, positively
identified Maro as the robber. At trial,
she said she "recognized him so clearly
and [she] just knew it was him." Another
witness from Firstar Bank, Stephan Nowak,
was unable to make a positive
identification but tentatively selected
another participant in the lineup, an FBI
agent, as the robber.
Before the teller from the First
American Bank viewed the lineup, each
participant glued on an identical false
mustache. When teller Susan Rosenstein
saw the lineup, she immediately
recognized Maro as the robber. She
testified that her heart began pounding
when she saw him and that she was
"totally positive of her identification."
Maro filed a motion to suppress the
evidence and requested an evidentiary
hearing, pursuant to Franks v. Delaware,
438 U.S. 154 (1978). The motion was
denied, and that denial is the basis for
one of Maro’s grounds for appeal. We
review a Franks request for clear error.
United States v. Pace, 898 F.2d 1218 (7th
Cir. 1980).
Maro contends that Special Agent
Mullarkey’s affidavit, filed in support
of the request for the search warrant,
knowingly contained false and misleading
information and omitted witness
descriptions of the robber which were
inconsistent with Maro’s appearance.
Before trial, the district judge said
that he did not think that "there was a
false affidavit or that it was so
inaccurate that the warrants were
inappropriately issued." At a hearing on
post-trial motions, the judge reaffirmed
his earlier ruling that the evidence was
properly admitted at trial. He indicated
that he often held hearings on these
issues but that Maro’s motion was not
even close to the kind that would trigger
the need for a hearing:
With respect to the suppression hearing
issue and whether or not the search
should be suppressed, I am going to deny
that motion for the same reasons that I
previously did before the trial but also
I am--I tend to--I tend to have hearings.
If it is--if it is even within range, I
like to have a hearing so that I can
understand things and defendants get a
fair shot at getting evidence suppressed.
In this case I felt there was so many
similarities in terms of the descriptions
that there was a probable cause. I am not
ignorant to the fact that meaningful
evidence was discovered. But I--I think
it was the correct decision at that point
in time. And I am, around here, pretty
liberal about giving hearings. So in this
case I didn’t think it was a good use of
time.
In order to obtain a hearing, commonly
called a Franks hearing, to explore the
validity of a search warrant affidavit, a
defendant must make a "substantial
preliminary showing" that: (1) the
affidavit contained a material false
statement; (2) the affiant made the false
statement intentionally, or with reckless
disregard for the truth; and (3) the
false statement was necessary to support
the finding of probable cause. 438 U.S.
at 155-56. As we have noted, "[t]hese
elements are hard to prove, and thus
Franks hearings are rarely held." United
States v. Swanson, 210 F.3d 788, 790 (7th
Cir. 2000). A defendant seeking a Franks
hearing "bears a substantial burden to
demonstrate probable falsity." United
States v. Hornick, 815 F.2d 1156, 1158
(7th Cir. 1987). Moreover, "an
unimportant allegation, even if viewed as
intentionally misleading, does not
trigger the need for a Franks hearing."
Swanson, 210 F.3d at 791. We agree with
the district court that no hearing was
necessary here.
Maro’s primary claim in his suppression
motion was that there was a fatal
discrepancy between witness Michael
Koehlar’s trial testimony and what
Special Agent Mullarkey’s affidavit said
of Koehlar’s observations. The affidavit
said that Koehlar saw "a white male
running from the bank, through the bank
parking lot to a maroon Taurus parked in
the parking lot." Koehlar then "watched
the man drive toward the building that he
was working in . . . ." Furthermore, Maro
says Koehlar’s rendition of the license
plate was off. At trial, Koehlar
testified that he saw an individual
wearing a white baseball hat running at a
fast rate of speed across the parking lot
in front of the bank, but that he could
not tell whether the person was male or
female. He testified that he did not see
the man actually leave the bank. He also
said he could not see the person get into
a Taurus, but he did testify that while
he watched the area where he lost sight
of the person, a red Ford Taurus appeared
driven by a male with a mustache, wearing
a white baseball hat.
Another example of allegedly false and
misleading statements in the affidavit is
found in the description of the
surveillance which was conducted. Special
Agent Mullarkey said in her affidavit
that she surveilled Maro’s home and saw a
white male leaving the residence; he was
in his late thirties, wearing a baseball
cap and sunglasses. That description
would be consistent with Maro’s
appearance. Special Agent Mullarkey also
said she followed him for a couple of
miles to confirm that he had a mustache
and resembled the bank surveillance
photograph. What she did not say, and
what is critical, according to Maro, is
that the car in which the person drove
off was not a red or maroon Taurus and
that Special Agent Mullarkey could not
confirm at that time that the person she
observed was Maro--that despite her
having a recent photo of Maro obtained
from his parole officer.
Further damning to the affidavit,
according to Maro, is that despite the
fact that Special Agent Mullarkey knew
that Geneva police officers may have
taken photos during the surveillance of
the home, there were no photos of Maro.
Finally, Maro contends that conflicting
physical descriptions of the robber were
omitted from the affidavit. These
discrepancies involve weight and height
estimates-- particularly a weight
estimate from teller Nichols which
estimated Maro’s weight as significantly
heavier than he is. Nichols testified at
trial that her original estimate was off.
These alleged affidavit shortcomings do
not come close to the kind of egregious
errors necessary to conduct a Franks
hearing. Koehlar’s statements, while
technically contradictory, do not reveal
a disregard of the truth. That the car in
which the suspect was driving from Maro’s
house was not the Taurus is not
significant. The affidavit also included
the fact that the Taurus was parked at
Maro’s house. Omission of the fact that
he drove off on one occasion in another
car is hardly fatal. That no pictures of
him were taken at his home is also not
significant. The problem for law enforce
ment was establishing that he was at the
banks, not that he lived at his own home.
As to the weight estimates, even if the
omission of conflicting weight estimates
could be considered a significant
omission, Maro has not shown that it was
an intentional omission.
As to his sentence, Maro’s first
argument--that it constituted a violation
of Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348 (2000)--cannot be
sustained. Maro thinks that an
enhancement for making a threat of death
was tantamount to sentencing him as an
armed bank robber. The government argues
the finding that he made a threat of
death was not related to whether he was
armed. The enhancement, according to the
government, was based on his saying he
had a gun, not on his actually having
one. In any case, under these
circumstances there is no Apprendi
violation; the 2-level increase in his
base offense level of which he complains
did not raise the penalty above the
statutory maximum for his offense. See,
e.g., United States v. Behrman, 235 F.3d
1049 (7th Cir. 2000).
His other contention is that the upward
departures in both his criminal history
category and his offense level were
improper and do not reflect the structure
of the guidelines, as required by United
States v. Cruz-Guevara, 209 F.3d 644 (7th
Cir. 2000). The departures here were
significant. Maro fell into criminal
history category III, but the judge said
that he did not believe that criminal
history category was adequate. He placed
him in category VI. As to the offense
level, Maro fell into level 26, which
again the judge did not think adequately
represented the seriousness of the crime,
so he departed upward to level 31, giving
Maro a range of 188 to 235 months. The
judge also said (an observation we share)
that he saw "zero expression of remorse"
and was convinced that within a year or
two after getting out of jail, he "will
be robbing banks again." The sentence
imposed was 210 months.
The way this issue is offered presents
us with a sticky wicket. Maro says the
enhancements were too great and that his
sentence of 210 months is too long. The
government, although defending the
enhancements, mostly argues that the
district court should have treated Maro
as a career offender under the guidelines
and that if he were treated as one, his
present sentence would be at the bottom
of the applicable range. So essentially
the government says Maro has nothing
practical to complain about. The problem
is that the government has not cross-
appealed on the district judge’s failure
to treat Maro as a career offender. But
should a cross-appeal be necessary? After
all, the government is satisfied with the
sentence Maro received. Given these
unusual circumstances, we think it best
not to require a formal cross-appeal in
order for us to consider the issue of
whether or not Maro was, in fact, a
career offender. And so, we will review
the issue of whether or not Maro is a
career offender as if there was a formal
cross-appeal presented to us on that
issue. For the reasons we are about to
make clear, we think this is a sensible
approach to take in a situation where we
determine that a correct sentence was
imposed, perhaps for an incorrect reason.
With that said, we review the question
of whether or not Maro was a career
offender under the guidelines.
Importantly, we note first that embarking
on this review comes as no surprise to
Maro, who argued the inapplicability of
career offender status in his reply
brief. Second, we note that in a
situation like this, the standard of
review--de novo, clear error, or abuse of
discretion--is unimportant, for the
outcome would be the same under any
standard.
At sentencing, the government requested,
and the United States Probation Office
recommended, that Maro be treated as a
career offender. He had, after all,
committed eight bank robberies in 1989
and, after being released from prison,
committed the two involved in this case.
Robbing banks seemed to come naturally to
him. The judge declined to sentence him
as a career offender, however, finding
that his federal conviction and his state
conviction based on the 1989 robberies
were related and thus did not qualify as
separate convictions for purposes of the
career offender guideline. The judge
thought it was a close question and said
he did not "claim to have the magically
truthful answer to it." We will answer
the question.
A person is a career offender if
(1) the defendant was at least eighteen
years old at the time the defendant
committed the instant offense of
conviction, (2) the instant offense of
conviction is a felony that is either a
crime of violence or a controlled
substance offense, and (3) the defendant
has at least two prior felony convictions
of either a crime of violence or a
controlled substance offense.
USSG sec.4B1.1. For prior convictions to
count under subsection (3) at least two
must be "counted separately under the
provisions of sec.4A1.1(a), (b), or (c)."
USSG sec.4B1.2(c)(2). Prior sentences
"imposed in unrelated cases are to be
counted separately." But prior sentences
imposed in related cases are not.
sec.4A1.2(a)(2). Application Note 3 to
sec.4A1.2 says that "prior sentences are
considered related if they resulted from
offenses that (A) occurred on the same
occasion, (B) were part of a single
common scheme or plan, or (C) were
consolidated for trial or sentencing."
Maro committed eight robberies in 1989,
six in Illinois and two in Wisconsin. He
was charged in both the Northern District
of Illinois and the Western District of
Wisconsin. The Wisconsin case was
transferred to Illinois, pursuant to Rule
20 of the Federal Rules of Criminal
Procedure. Maro entered guilty pleas to
two counts from both indictments-- four
counts in all. In his plea agreement he
stipulated to the other robberies, and
the others were listed in the presentence
report. For sentencing in those cases,
the offense levels for each robbery were
calculated and the offense level
determination included a 5-level
increase, pursuant to USSG sec.3D1.4. A
5-level increase is the maximum allowed
under that section and in this case
resulted from grouping the four bank
robberies to which Maro pled guilty and
one other robbery, leaving three which
had no effect on his sentence. Later,
Maro was charged and convicted in one of
the four stipulated robberies, the Will
County robbery of the Lincoln Way Federal
Savings and Loan Association in
Frankfort, Illinois. His sentence in that
case was ordered to run concurrent with
his federal sentence.
The question for us is whether the
district judge in the present case was
wrong to find that the Will County
proceeding was not a prior conviction for
purposes of sec.4B1.1 because it fell
under subsection (C) of the application
note: that it and the federal case "were
consolidated for trial or sentencing" and
thus the Will County case could not be
counted as a prior offense for purposes
of the present sentencing. The easy
answer, of course, is that the Will
County robbery was a prior conviction
because it was not consolidated with the
robberies charged in federal court either
for trial or for sentencing. But we are
not literalists. We will decide whether
the fact that the Will County robbery was
acknowledged in the plea agreement and
the presentence report in the federal
case is enough to prevent it from being
counted as a prior offense after Maro
robbed the two Illinois banks in 1999.
The question comes down to how many free
passes Maro is entitled to under the
guidelines. Because of the Rule 20
transfer, he is tagged with only one
prior conviction from the two indictments
in two different districts in which he
entered pleas to four of the 1989
robberies. Clearly a good deal. Does he
also get a free pass for a state court
conviction in Will County because it also
was a bank robbery which he acknowledged
pulling off? We have previously cautioned
that because a person lives a "life of
crime" does not mean that all his
criminal actions come under the umbrella
of a giant criminal plan. United States
v. Brown, 962 F.2d 560 (7th Cir. 1992).
We also know that the fact that a person
goes on a crime spree does not make all
his criminal acts related. United States
v. Sexton, 2 F.3d 218 (7th Cir. 1993). We
know that concurrent sentences do not
necessarily make crimes related. Brown.
Maro has two prior convictions: one in
federal court, one in state court.
Because he committed so many robberies in
1989 it was not necessary, at the time of
the federal sentencing, to rely on the
Will County robbery to support the 5-
level increase under sec.3D1.4 for his
combined offense level. The Will County
case retains sufficient independence to
be considered a separate conviction for
purposes of the sentencing guidelines.
Consequently, it was as clear as crystal
that Maro had two prior countable convic
tions--and was thus a career criminal--
when he was convicted again in 1999.
As a career criminal, his sentencing
range is 210 to 262 months. His sentence
of 210 months is, obviously, at the low
end of the range. As we have noted, the
government has informed us that it is
satisfied with the length of the sentence
imposed. So what we have is the right
sentence for the wrong reasons. We see no
reason to require a new sentencing
hearing. This judgment is AFFIRMED in
part, MODIFIED in part, and the case
REMANDED for the entry of a corrected
judgment of conviction reflecting Maro’s
status as a career offender.