United States v. Cook

108 F.4th 574

UNITED STATES of America, Plaintiff-Appellee, v. Brian Patrick COOK, Defendant-Appellant.

No. 23-1016

United States Court of Appeals, Seventh Circuit

Argued November 1, 2023

Decided July 17, 2024

Appeal from the United States District Court for the Central District of Illinois. No. 4:22-cr-40012 — Sara Darrow, Chief Judge.

Katherine Virginia Boyle, Attorney, Office of the United States Attorney, Urbana Division, Urbana, IL, W. Scott Simpson, Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Terry Frederick, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant..

Before Sykes, Chief Judge, and St. Eve and Lee, Circuit Judges.

Lee, Circuit Judge.

Armed with what appeared to be a gun, Brian Cook entered a bank in a western Illinois village, threatened two tellers to give him money, and fled the scene with a bag full of cash. He later pleaded guilty to one count of bank robbery under 18 U.S.C. § 2113(a). During the sentencing hearing, the parties disputed whether Cook had simply "brandished" his gun (which turned out to be an air pistol) or had "otherwise used" it in the commission of the crime; the former triggers a three-level enhancement to Cook's offense level under § 2B3.1(b)(2)(E) of the United States Sentencing Guidelines, while the latter prompts a four-level enhancement under § 2B3.1(b)(2)(D). The district court agreed with the government, applied a four-level enhancement, and sentenced Cook to 144 months of imprisonment and three years of supervised release. Cook now challenges that ruling as well as a number of other factors the court considered for sentencing. Finding no error, we affirm the judgment.

I. Background

Cook entered Citizens National Bank in Roseville, Illinois, on July 31, 2021, wearing a blue hooded sweatshirt, a neck gaiter mask, and sunglasses. He immediately walked toward the teller window, pointed what appeared to be a gun at the teller, and announced, "you are being robbed."

Cook continued to point the gun (which authorities later determined was an air pistol) at the teller as he directed her to get money from the bank vault. As the teller was accessing the vault, Cook noticed a second teller, pointed the weapon at her, and instructed her to stay put. After the first teller opened the vault, Cook gave her a green floral-patterned grocery bag and instructed her to fill it with money. Cook then took the bag of money and fled.

A bank customer saw Cook flee in the passenger seat of a maroon Ford F-350 pickup truck and reported the truck and license plate number to the authorities. Within fifteen minutes of the robbery, law enforcement officers spotted the truck and conducted a traffic stop. Inside the truck in plain view were the blue sweatshirt and a green floral-patterned grocery bag containing a large amount of cash.

After obtaining a search warrant for the contents of the truck, law enforcement officers found $193,000 in United States currency bundled in bank wraps, which noted Citizens National Bank's parent company as the owner. Officers also discovered five cell phones in the truck and a black air pistol in the pocket of the blue sweatshirt. Based on a search of the cell phones, law enforcement determined that Cook, who lived elsewhere, had searched the internet in the months before the robbery, searching for banks in the Roseville area and entering dozens of queries about Roseville's weather.

In May 2022, a federal grand jury returned an indictment charging Cook with bank robbery under 28 U.S.C. § 2113(a). Cook pleaded guilty to the crime three months later. In its presentence report, the United States Probation Office recommended 84 to 105 months' imprisonment followed by one to three years of supervised release based on a total offense level of twenty-five and a criminal history category of IV. In the report, the Probation Office recommended that the court apply a four-level enhancement under § 2B3.1(b)(2)(D).

At sentencing, the government concurred with the Probation Office that a four-level increase under § 2B3.1(b)(2)(D) was appropriate because Cook had pointed the gun at the two tellers and used the gun to direct a teller to the vault. Cook contested this account of the facts, argued that he only had brandished the gun during the robbery, and urged the court to adopt the three-level increase under § 2B3.1(b)(2)(E). The district court, after considering the arguments and reviewing videos of the event, found that Cook did more than simply brandish the gun and applied the four-level enhancement to Cook's base offense level.

The district court did not stop there, however. It remarked that, even if it had applied only the three-level enhancement under § 2B3.1(b)(2)(E), it still would have imposed the same sentence because, in the court's words, Cook's criminal history was "the worst pattern of undeterred behavior of a single type of category offense that [the court had] ever seen." This history included multiple convictions for burglary, forgery, and theft, as well as for stealing property and possessing marijuana. Furthermore, finding that prior punishments and admonishments had not deterred Cook from criminality, the district court determined that an above-Guidelines sentence was necessary to accomplish the sentencing goals of 18 U.S.C. § 3553(a) and imposed a term of imprisonment of 144 months to be followed by three years of supervised release. Cook now challenges the sentence on numerous grounds.

II. Analysis

As we have said on countless occasions, "[d]istrict courts have 'wide discretion in determining what sentence to impose.' " United States v. Shaw, 824 F.3d 624, 631 (7th Cir. 2016) (quoting United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972)). "We will not disturb a district court's sentence unless it is procedurally or substantively unreasonable." Id.

Our review involves a "two-step process." United States v. Major, 33 F.4th 370, 378 (7th Cir. 2022). "First, we ensure that the sentencing judge did not commit any significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range." United States v. Jackson, 547 F.3d 786, 792 (7th Cir. 2008) (internal quotation marks omitted). Procedural challenges to a criminal sentence are reviewed de novo, but the court's factual findings are reviewed for clear error. United States v. Baldwin, 68 F.4th 1070, 1074 (7th Cir. 2023).

If the district court followed the proper procedure, we then examine whether the sentence was substantively reasonable. Jackson, 547 F.3d at 792. When considering a sentence's substantive reasonableness, we review for an abuse of discretion. United States v. Baker, 56 F.4th 1128, 1133 (7th Cir. 2023). To be substantively reasonable, "[t]he sentencing court must apply the factors set forth in 18 U.S.C. § 3553(a) in deciding whether to impose a sentence within the advisory guidelines range." Jackson, 547 F.3d at 792. The open-ended nature of those factors "leav[es] the sentencing judge with considerable discretion to individualize the sentence to the offense and offender as long as the judge's reasoning is consistent with § 3553(a)." Id. (internal quotation marks omitted).

Indeed, "the mere fact that we might have chosen a different sentence in the first instance is insufficient for reversal." Id. This is because the "sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record." Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (internal quotation marks omitted).

A. "Brandishing" or "Otherwise Using"

According to Cook, the district court procedurally erred when it found that he had "otherwise used" the gun, thereby triggering the four-level enhancement under U.S.S.G. § 2B3.1(b)(2)(D), rather than just "brandishing" it. If the district court had found the latter, Cook's Guidelines range would have been 77 to 96 months of imprisonment, rather than 84 to 105 months.

When construing the Guidelines, we start with the text and consult any relevant commentary. See Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (Guidelines commentary is "authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline"); United States v. White, 97 F.4th 532, 537 (7th Cir. 2024) (following Stinson).

Section 2B3.1 of the Guidelines addresses robbery offenses. Subpart (b)(2)(D) mandates a four-level increase to the defendant's base offense level "if a dangerous weapon was otherwise used." Meanwhile, subpart (b)(2)(E) requires a three-level increase "if a dangerous weapon was brandished or possessed." To better understand what these terms mean, we refer to § 1B1.1 ("Application Instructions").

Application note 1(C) of that provision defines "brandished" to mean that "all or part of the weapon was displayed, or the presence of the weapon was otherwise made known to another person, in order to intimidate that person, regardless of whether the weapon was directly visible to that person. Accordingly, although the dangerous weapon does not have to be directly visible, the weapon must be present." § 1B1.1, application note 1(C). At the same time, under application note 1(J), "otherwise used" denotes conduct that "did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon." § 1B1.1, application note 1(J).

As we have...