United States v. White

80 F.4th 811

UNITED STATES of America, Plaintiff-Appellee, v. Tyree J. WHITE, Defendant-Appellant.

No. 21-2296

United States Court of Appeals, Seventh Circuit

Argued October 25, 2022

Decided September 6, 2023

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:17CR00182-001—Jane Magnus-Stinson, Judge.

Peter Andrew Blackett, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Johanna M. Christiansen, Thomas W. Patton, Attorneys, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before Sykes, Chief Judge, and Flaum and Lee, Circuit Judges.

Sykes, Chief Judge.

Tyree White and several accomplices committed a string of armed robberies in Indianapolis in the late spring of 2017. White participated as an organizer and lookout, while his accomplices carried out the holdups. After successfully robbing a bank and two cellphone stores, the coconspirators were finally stopped when undercover detectives spotted them attempting to rob a Verizon store.

White was charged with three counts of conspiracy to commit robbery and one count of conspiracy to commit armed bank robbery. He pleaded guilty to all four charges. The district court accepted the Sentencing Guidelines calculations in the presentence report, which produced an advisory sentencing range of 97 to 121 months. The judge determined that a sentence in the middle of that range was appropriate and imposed four concurrent 108-month terms of imprisonment.

White challenges the sentence on two grounds. First, he contends that the 108-month prison term for the bank-robbery conspiracy exceeds the applicable statutory maximum. Second, he disputes two applications of the Guidelines enhancement for physically restraining a victim "to facilitate commission" of a robbery. See U.S.S.G. § 2B3.1(b)(4)(B). White concedes that all parties, including his own lawyer, overlooked both issues at sentencing. In other words, he acknowledges that he forfeited these challenges, so resentencing is warranted only if we find plain error.

We vacate White's sentence and remand for resentencing. The general federal conspiracy statute, 18 U.S.C. § 371, supplies the operative sentencing framework for the bank-robbery conspiracy charge, capping any term of imprisonment at 60 months. Needless to say, White's 108-month sentence on this count far exceeds the applicable statutory maximum. While the government concedes this point, it nonetheless argues that the error is harmless. This argument rests on United States v. Gray, 332 F.3d 491 (7th Cir. 2003), a pre-Booker case that is out of sync with the advisory Guidelines regime. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because White's 108-month sentence on the bank-robbery conspiracy conviction clearly exceeds the applicable statutory maximum, it is unlawful. The judge must impose a new sentence on that count. Though she has the discretion to restructure the entire sentence, she is not required to do so.

The physical-restraint enhancement was properly applied to one of the robbery-conspiracy counts. During the bank robbery, one of White's accomplices wielded a handgun, grabbed a bank manager by his shirt, and led him to the lobby at gunpoint. This conduct counts as physical restraint within the meaning of § 2B3.1(b)(4)(B). But the government admits that the conduct underlying the second application of the enhancement—during the robbery of one of the cellphone stores, an accomplice wielded a gun and ordered an employee to move to another area of the store—is not a form of physical restraint under our caselaw. See United States v. Herman, 930 F.3d 872, 875 (7th Cir. 2019) (ruling out the enhancement in the absence of physical contact or confinement). This error alone was harmless, however; it did not alter the applicable Guidelines range. So while the judge may revisit and restructure the entirety of White's sentence on remand, she must impose a new sentence only on the bank-robbery conspiracy count.

I. Background

Over the course of several weeks in May and June 2017, Tyree White participated in several commercial armed robberies in Indianapolis. His primary role was that of a lookout, but he also assisted with his coconspirators' preparations by selecting and staking out the targeted premises and providing supplies, including (for at least one robbery) the gun. His stint as a serial robbery conspirator came to an end in mid-June when undercover officers observed White's accomplices enter and suddenly flee a Verizon store. A chase ensued but the culprits escaped, tossing a gun from the getaway car as they fled. After three months of investigation, White was arrested. A grand jury issued a superseding indictment charging him with three counts of conspiracy to commit robbery, 18 U.S.C. § 1951(a), and one count of conspiracy to commit armed bank robbery, id. §§ 2113(a), (d), and 371.

The specifics of two of these robberies are important to this appeal, so we describe them in some detail. White's preparations for the first robbery began on May 8, 2017, when he entered a Fifth Third Bank in Indianapolis to inquire about opening an account, a front for his surveillance of the bank. Two days later accomplices Charles Robinson and M.W., a juvenile, entered the bank while White was stationed outside in a vehicle as the lookout. M.W. was armed with a handgun that White had provided. After locating the bank manager in his office, M.W. brandished the firearm, ordered the manager to keep quiet, and pulled him by his shirt into the lobby—all while pointing the gun at him. At the same time, Robinson grabbed cash from the teller drawers and stuffed it into a bag. The robbers then escaped.

White acted as the lookout in a second Indianapolis robbery on May 26 (about two weeks later). This time the target was a T-Mobile store. Again, White stayed in his car and watched for signs of trouble while Robinson, Johnathan Washington, and Davon Herron entered the store. Herron wielded a handgun and demanded that an employee lead the three robbers to the back room where the cellphone inventory was kept. One or more T-Mobile employees remained in the back room as White's accomplices stole cash from a safe and several cellphones. The robbers then fled the scene, escaping in White's car and a second vehicle.

The details of the remaining robbery and attempted robbery are mostly irrelevant for our purposes. Here are the basics: About two weeks after the T-Mobile robbery, White helped plan an armed robbery of an AT&T store in Indianapolis; he then acted as the lookout as his coconspirators entered the store on June 9 and escaped with 26 stolen cellphones. The following week White teamed up with an entirely new group of accomplices because the AT&T robbers had been arrested. This new group of coconspirators attempted to rob a Verizon store on June 16. White helped gather the tools—gloves, trash bags, and zip ties—and staked out the store. But the plan faltered in the middle of the robbery when the Verizon employees ran out the back of the store. The robbers abandoned the effort and left the store empty-handed, jumping into a waiting getaway car. Because of the recent robberies of local cellphone retailers, undercover officers were watching the Verizon store; they chased the robbers but did not catch them. They did, however, see them toss a gun from the car during the pursuit.

The police continued to investigate over the summer and eventually arrested White in September. In November 2017 a grand jury returned a superseding indictment charging him with four crimes: three counts of conspiracy to commit robbery in violation of § 1951(a) and one count of conspiracy to commit armed bank robbery in violation of §§ 2113(a), (d), and 371. Two aspects of the statutory scheme underlying the bank-robbery conspiracy charge are important. First, the Federal Bank Robbery Act, § 2113, does not provide for a conspiracy theory of liability; a defendant violates the Act only if he "takes[ ] or attempts to take" the property of another. Proceeding on a conspiracy theory therefore requires charging a violation of § 371, the general federal conspiracy statute. Second, while a violation of the armed-robbery provision of the Bank Robbery Act, § 2113(d), carries a possible sentence of 300 months, the general federal conspiracy statute, § 371, has a 60-month maximum.

White soon filed a petition to enter guilty pleas on all four counts. But his plea petition listed 300 months in prison as the maximum sentence for the bank-robbery conspiracy count. In other words, White's petition apparently—and erroneously—treated that count as a substantive armed-robbery offense under § 2113(d) rather than as a conspiracy offense under § 371. From that point on, all parties seemingly proceeded on a shared misunderstanding that the Bank Robbery Act (§ 2113(d)), not the general conspiracy statute (§ 371), supplied the statutory maximum sentence for the bank-robbery charge. For example, at White's change-of-plea hearing, the prosecutor stated that the maximum punishment "would be 25 years [of] incarceration." And White agreed later in the hearing that the applicable imprisonment range was 0 to 25 years. The probation office also assumed that § 2113(d) furnished the relevant statutory penalties: on the first page of the presentence report, and again later in the report, it described the bank-robbery conspiracy count as subject to "[n]ot more than 25 years [of] imprisonment."

The Guidelines calculations in the presentence report included two sentencing enhancements under § 2B3.1(b)(4)(B) for physically restraining a victim. The physical-restraint enhancements, which reflected the conduct of White's coconspirators during the Fifth Third Bank and T-Mobile robberies, added two levels to the base offense level for each of those counts. These enhancements (and others not at issue here)...