United States v. White, Rodney ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3470
United States of America,
Plaintiff-Appellee,
v.
Rodney White,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 525--Charles P. Kocoras, Judge.
Argued April 6, 2000--Decided July 25, 2000
Before Posner, Chief Judge, and Flaum and Ripple,
Circuit Judges.
Flaum, Circuit Judge. Rodney White appeals his
conviction for bank robbery, aggravated bank
robbery, and kidnaping during a bank robbery, in
violation of 18 U.S.C. sec.sec. 2113(a), (d), and
(e), as well as for using and carrying a firearm
in relation to a crime of violence in violation
of 18 U.S.C. sec. 924(c)(1)(A). For the reasons
stated herein, we affirm.
I. BACKGROUND
On July 18, 1998, Rodney White walked into a
St. Paul Federal Bank on the west side of Chicago
wearing a baseball cap and dark glasses. White
waited in a teller line behind several customers,
and when it was his turn, he jumped over the
counter and placed a green box wrapped in black
electrical tape with wires sticking out of it
next to the teller. He then pulled out a gun and
pointed it at Elvia Barrera, the teller who had
attempted to assist him. White told Ms. Barrera
that the box was a bomb and ordered her to put
all of the money from her teller drawer into a
bag. When Ms. Barrera complied, White turned to
Maria Torres, the teller standing on the other
side of him, and ordered her to do the same. The
two tellers placed a total of $9,750 in the bag.
White then forced Ms. Torres over the teller
counter and followed her into the lobby of the
bank. He grabbed her from behind and walked
toward the front entrance of the bank, holding
her in front of him and keeping the gun to her
head.
At the time of the robbery, two off-duty police
officers, Michael Hallinan and Jim Laufer, were
working as security guards for the bank. The
officers drew their guns and approached White
while he was using Ms. Torres as a human shield
to escape from the bank. The officers ordered
White to drop his gun and release Ms. Torres.
White ignored their commands and instead pointed
his gun at the officers and dragged Ms. Torres
out of the bank. The entire robbery was captured
by six video cameras placed throughout the lobby
of the bank.
White took Ms. Torres to a red Dodge Omni that
was parked in front of the bank and forced her
into the back seat of the car. The officers
followed White out of the bank, and White again
pointed his gun at them. Officer Hallinan fired
his gun several times at White but missed. White
then jumped into the car and began to drive away.
Officer Hallinan continued to fire at the car and
managed to hit the rear tire and rear passenger
door. White drove away from the scene and at one
point went the wrong way down a one-way street.
He eventually let Ms. Torres out of the car.
Meanwhile, back at the bank, the police
discovered that the box left on the counter in
front of Ms. Barrera was nothing more than a
Victoria’s Secret box with a baby doll inside.
Ms. Torres, Ms. Barrera, Officer Hallinan,
Officer Laufer, and at least two other persons
present at the bank during the robbery identified
White’s picture from a photo array as that of the
bank robber.
Several hours later, White went to the house of
his landlord J.M. Jackson and asked Mr. Jackson
if he could park a car in his garage. The next
day, Mr. Jackson found a red Dodge Omni that had
bullet holes in the right rear tire and rear
passenger door in his garage. He called the
police, who discovered White’s fingerprints on
the car and confirmed that the bullet holes were
made by bullets from Officer Hallinan’s gun.
After leaving Mr. Jackson’s house, White learned
that the police were searching for him in
connection with the bank robbery. He spent the
next nine days staying with a friend or at an
EconoLodge. During those nine days, White made
notes concerning his defense against charges that
he committed the bank robbery. Throughout this
time, local news stations were running stories
about the robbery, claiming that White was the
main suspect.
On July 24, 1998, the FBI received an anonymous
tip informing them of the whereabouts of White.
The tip was later discovered to be from Adrian
Garner, an acquaintance of White.
A jury found White guilty of bank robbery,
aggravated bank robbery, kidnaping during a bank
robbery, and use of a weapon during a crime of
violence. The trial judge sentenced White to 354
months in prison, and he now appeals.
II. DISCUSSION
A. Prior Conviction
White first argues that his trial was rendered
fundamentally unfair by the prosecutor’s
misconduct in impeaching White’s testimony using
the factual details underlying his prior
conviction for aggravated criminal sexual abuse.
White also argues that his trial was further
prejudiced by the government’s reference during
closing argument to the alleged facts supporting
this conviction. Because White did not object to
either of these instances of misconduct at trial,
we review his claims for plain error. See United
States v. Robinson, 8 F.3d 398, 412 (7th Cir.
1993). In order to find plain error we must
determine: 1) that an error was made; 2) that the
error was clear or obvious; and 3) that the
defendant’s substantial rights were affected by
that error. See United States v. Olano, 507 U.S.
725, 732-35 (1993). Where we find plain error, we
may use our discretion to remedy only "those
errors that ’seriously affect the fairness,
integrity, or public reputation of judicial proceedings.’"
United States v. Young, 470 U.S. 1, 15 (1985)
(quoting United States v. Atkinson, 297 U.S. 157,
160 (1936)).
At a pre-trial proceeding, the district court
granted the government’s motion requesting that
it be allowed to impeach White with his prior
conviction for sexual abuse. The government was
permitted to use the fact of that conviction only
and was not allowed to examine the defendant on
the circumstances surrounding the conviction.
However, on direct examination, White not only
admitted to the fact of the conviction but
expounded on his version of the circumstances
underlying that conviction in violation of the
district court’s order by telling the jury that
he was prosecuted for having consensual sex with
a girl under the age of seventeen when he was
twenty. On cross-examination, the government
impeached this testimony using the facts
recounted in a police report of the crime./1 In
addition, during closing argument the government
again referenced these facts from the police
report by stating that "the defendant raped a 13
year old girl and sent her to the hospital, and
he lied about that." White contends that his
trial was rendered fundamentally unfair by the
government’s misconduct in revealing these
allegations underlying his prior conviction to
the jury.
To evaluate a claim of prosecutorial misconduct,
we engage in a two-step analysis. First, we
examine the challenged remarks in isolation to
determine whether they were improper. If so, we
then examine the remarks in light of the entire
record to determine whether they could have so
prejudiced the jury that the defendant can not be
said to have received a fair trial. See United
States v. Butler, 71 F.3d 243, 254 (7th Cir.
1995); United States v. Swiatek, 819 F.2d 721,
730 (7th Cir. 1987).
Under Federal Rule of Evidence 609, it was
proper for the government to impeach White with
evidence of his prior conviction for sexual
assault. See Robinson, 8 F.3d at 409. It was also
permissible for White to testify to the fact of
his conviction on direct examination as a matter
of trial strategy in order to lessen the impact
of the information on the jury. See id.
Ordinarily, "the details of the prior conviction
should not [be] exposed to the jury." Id.; see
also Campbell v. Greer, 831 F.2d 700, 707 (7th
Cir. 1987) (holding that it is error to admit
more than the name of the crime charged, the
date, and the disposition of a prior conviction
for impeachment purposes). However, where a
defendant attempts to explain away the prior
conviction during direct examination by giving
his own version of events, he has "opened the
door" to impeachment by the prosecution on the
details of the conviction. See Robinson, 8 F.3d
at 410; United States v. Kimberlin, 805 F.2d 210,
234 (7th Cir. 1986); United States v. Fountain,
768 F.2d 790, 795 (7th Cir. 1985). Nevertheless,
the prosecution’s response must be tailored to
the statements made by the defendant. The open
door does not give the prosecution license to
dwell on the details of the prior conviction and
shift the focus of the current trial to the
defendant’s prior bad acts. See Robinson, 8 F.3d
at 410. Most importantly for this case, the
prosecution is limited to using only the
information for which it has a good faith belief
that there is supporting evidence. See United
States v. Harris, 542 F.2d 1283, 1307 (7th Cir.
1976) ("It is improper conduct for the Government
to ask a question which implies a factual
predicate which the examiner knows he cannot
support by evidence."); see also Robinson, 8 F.3d
at 413; United States v. Elizondo, 920 F.2d 1308,
1313 (7th Cir. 1990).
In this case, after the defendant opened the
door to the government’s impeachment using the
details of his prior conviction for sexual
assault, the prosecutor used facts from a police
report describing that crime as the violent
forcible rape of a young girl. The government
chose to present this view of the crime in spite
of the fact that there was significant evidence
that the sex was consensual as well as the fact
that the defendant received no jail time for what
the prosecution represented as a brutal crime. We
have rejected the contention that the mere
existence of a factual dispute surrounding the
circumstances of a prior conviction justifies the
government’s use of impeachment evidence that has
no factual basis. See Elizondo, 920 F.2d at 1314.
We question the prosecutor’s judgment here in
presenting White’s prior conviction in a light
that does not appear to be supported by the facts
surrounding that conviction. However, the police
report does provide some basis for the
prosecutor’s line of questioning, and, while we
are concerned with the prosecutor’s judgment, we
do not find that these actions rise to the level
of misconduct.
The government’s statement in its closing
argument that the defendant raped a 13 year old
girl and sent her to the hospital is a different
situation. Because the defendant denied these
allegations and the police report was not in
evidence, there is no evidence in the record to
support the government’s assertion. Argument
referencing facts not in evidence is clearly
improper, and we conclude that the prosecutor
engaged in misconduct in making the challenged
statement. See United States v. Gonzalez, 933
F.2d 417, 430 (7th Cir. 1991).
Having determined that the government’s conduct
was improper, we now examine the record as a
whole to decide whether White was prejudiced by
the prosecutor’s misconduct. Our inquiry into the
prejudice created by prosecutorial misconduct is
informed by several factors, including: "(1) the
nature and seriousness of the prosecutorial
misconduct, (2) whether the prosecutors’
statements were invited by impermissible conduct
by defense counsel, (3) whether the trial court
instructed the jury to disregard the statements,
(4) whether the defense was able to counter the
improper arguments through rebuttal, and (5) the
weight of the evidence against the defendant."
United States v. Pirovolos, 844 F.2d 415, 426
(7th Cir. 1988) (reciting the factors outlined in
Darden v. Wainwright, 477 U.S. 168, 181-83
(1986)); see also Butler, 71 F.3d at 254; United
States v. Badger, 983 F.2d 1143, 1450 (7th Cir.
1993).
In this case, the improper remark made by the
government is serious and the trial court issued
no instructions to the jury to disregard the
prosecutor’s statement. However, White invited
commentary on the details of his prior conviction
by recounting his own version of events on direct
examination. In addition, defense counsel refuted
the prosecution’s improper remark in its own
closing argument and the prosecution did not
reference that statement again in its rebuttal.
Finally, and most importantly, the overwhelming
evidence of White’s guilt "eliminates any
lingering doubt that the prosecutor’s remarks
unfairly prejudiced the jury’s deliberations or
exploited the Government’s prestige in the eyes
of the jury." Young, 470 U.S. at 19. Considering
all of these factors, and our review under the
plain error standard, we conclude that the
government’s improper remark did not render
White’s trial fundamentally unfair.
We wish to emphasize, however, that
inappropriate conduct by defense counsel or
witnesses is not an invitation for the government
to act improperly in response. The appropriate
course of action is for the government to object
and for the trial judge to strike the improper
comments, instructing the jury to disregard them.
See Young, 470 U.S. at 13 (admonishing that in
response to defense counsel’s inappropriate
argument "the prosecutor at the close of defense
summation should have objected to the defense
counsel’s improper statements with a request that
the court give a timely warning and curative
instruction to the jury"). In this case, the most
advisable course of action might have been for
the government to avoid all temptation for any
party to act improperly by offering to enter the
evidence of the prior conviction through
stipulation. We underscore that the government
has a special responsibility to ensure the
integrity of the criminal judicial process by
"liv[ing] up to the code of professional ethics
and fair play at all times." Gonzalez, 933 F.2d
at 433.
B. Evidentiary Rulings
White next challenges two of the district
court’s evidentiary rulings. White argues that
the district court erred when it refused to allow
him to introduce evidence that Adrian Garner was
the anonymous tipster who informed the FBI of his
whereabouts after the robbery and that the court
erred when it did not allow him to introduce into
evidence video tapes of the news coverage of the
robbery. We consider each of these claims in
turn, reviewing the district court’s evidentiary
rulings for abuse of discretion. See United
States v. Van Dreel, 155 F.3d 902, 905 (7th Cir.
1998).
a. Anonymous Tip
White’s theory of defense was that Adrian
Garner committed the robbery and framed him. In
support of this theory, White wanted to show that
it was Garner who called the police to turn him
in after the robbery and that Garner lied about
who he was when he gave the police this tip.
White attempted to elicit this information on
cross-examination of FBI Agent Steinbach, whom
the government had called as a rebuttal witness
to impeach White’s testimony. The district court
excluded this evidence as irrelevant, and White
argues that this ruling was in error.
A district court has considerable leeway in
making evidentiary determinations and we will
overturn that court’s considered judgment only
where "no reasonable person could agree with the
district court’s ruling." United States v.
Adames, 56 F.3d 737, 746 (7th Cir. 1995). In this
case, the district court found that the manner in
which the FBI located White was not relevant to
any issue in the trial. While the information
that it was Mr. Garner who turned in White might
have been minimally relevant to White’s theory of
defense, any error the district court may have
made in excluding this evidence on pure relevancy
grounds is harmless. The district court could
have properly excluded this evidence under Rule
403 because its slight probative value is clearly
outweighed by the time that would have been
wasted on its presentation and its possible
confusing effect on the jury. Furthermore,
defense counsel attempted to elicit this
information through cross-examination of the
government’s rebuttal witness, whose sole
testimony on direct related to prior inconsistent
statements made by the defendant. Thus, the
district court could have excluded the line of
cross-examination on the alternate ground that it
exceeded the scope of the direct examination. See
Fed. R. Evid. 611(b); United States v. Hayward,
6 F.3d 1241, 1255-56 (7th Cir. 1993) (holding
that the defendant was restricted on cross-
examination of the prosecution’s witness, who had
been recalled for a second time, to the scope of
the government’s questioning on the second direct
examination). We, therefore, conclude that the
district court did not abuse its discretion when
it refused to allow White’s cross-examination of
a government witness on the identity of the
person who turned him in.
b. Video Tapes
White next argues that the district court erred
in refusing to allow him to play video tapes of
news reports that were aired during the nine days
he was hiding out after the robbery. White
asserts that he wanted to present the video tapes
to show his state of mind when he was making
notes concerning his defense strategy to a
prosecution for the robbery. He also claimed that
the news reports were the source of his
information about the details of the robbery that
were reflected in those notes. The district court
excluded the tapes under Federal Rule of Evidence
403, finding that the numerous factual
inaccuracies concerning the details of the
robbery would be confusing to the jury and that
the tapes lacked significant probative value
because the government did not contest the fact
that news reports about the robbery were aired
while White was hiding out.
This ruling by the district court is clearly
reasonable, especially in light of the fact that
the government did not contest White’s testimony
concerning the substance of the news reports and
his reaction to them. Therefore, we conclude that
the district court did not abuse its discretion
in excluding the video tapes under Rule 403.
C. Sentencing Enhancements
White finally contests his sentence, arguing
that the district court erred by imposing an
enhancement under U.S.S.G. sec. 2B3.1(b)(2)(E)
for use of a bomb in commission of a robbery and
by enhancing his sentence under U.S.S.G. sec.
3C1.2 for endangering others during the
commission of the offense. Because White is
challenging the legal interpretation of the
Sentencing Guidelines ("Guidelines") and relevant
statutes, our review is de novo. See United
States v. Nobles, 69 F.3d 172, 190 (7th Cir.
1995). We consider each of White’s arguments in
turn.
a. Use of Explosive Device
White argues that the district court erred when
it imposed a five-year consecutive sentence under
18 U.S.C. sec. 924(c) for his use of a gun during
the robbery and an enhancement under U.S.S.G.
sec. 2B3.1(b)(2)(E) for his use of a fake bomb
during the same robbery. White asserts that it is
impermissible double counting to impose both the
statutory sentence increase and the Guidelines’
sentencing enhancement for the use of two
different weapons in the commission of the same
underlying offense.
When a person commits either a drug trafficking
crime or a crime of violence and uses, carries,
or possesses a "firearm"/2 in relation to that
crime, his sentence may be enhanced to account
for the added danger posed by the presence of the
firearm in one of two ways. If he is convicted
solely of the underlying offense, the sentencing
judge may enhance his sentence under the
Guidelines. See, e.g., U.S.S.G. sec.sec.
2B3.1(b), 2D1.1(b)(1). Alternatively, the
government may choose to bring a separate charge
under 18 U.S.C. sec. 924(c), and, if convicted,
the defendant will receive the penalty mandated
by that statute. See U.S.S.G. sec. 2K2.4(a)./3
If a defendant is convicted and sentenced under
18 U.S.C. sec. 924(c), the sentencing judge is
prohibited from enhancing his sentence under the
Guidelines for the same weapon and the same
conduct that underlie the sec. 924(c) conviction.
See U.S.S.G. sec. 2K2.4 Application Note 2;/4
United States v. Mrazek, 998 F.2d 453, 454 (7th
Cir. 1993) ("A conviction under sec. 924(c)
precludes the enhancement the Guidelines
otherwise would provide.").
However, a defendant may receive both the sec.
924(c) statutory sentence and a Guidelines
enhancement if the enhancement and the statutory
sentence are imposed for different underlying
conduct. For example, where a defendant is
sentenced under sec. 924(c) for use of a gun in
committing a crime, he may have his sentence
enhanced under the Guidelines for a co-
defendant’s use of a different gun in committing
the same crime. See United States v. Washington,
44 F.3d 1271, 1281 (5th Cir. 1995); United States
v. Kimmons, 965 F.2d 1001, 1011 (11th Cir. 1992)
("[T]he district court’s application of [the
Guidelines’ enhancement] to each appellant did
not ’double count’ because it involved neither
the same firearm nor the same possession for
which a penalty was imposed under 18 U.S.C. sec.
924(c)."), rev’d on other grounds sub nom. Small
v. United States, 508 U.S. 902 (1993), and
reinstated in relevant part by United States v.
Rodriguez, 65 F.3d 932, 933 (11th Cir. 1995).
Similarly, where a defendant uses the same gun,
or different guns, in the commission of two
different crimes, he may receive a sec. 924(c)
penalty for one of the underlying crimes and a
Guidelines enhancement for the other. See Mrazek,
998 F.2d at 455; see also United States v.
McCarthy, 77 F.3d 522, 537 (1st Cir. 1996);
United States v. Blake, 59 F.3d 138, 139-40 (10th
Cir. 1995).
However, we have determined that it was
Congress’s intent that the penalty imposed under
sec. 924(c) account for all of the guns used in
a single underlying offense. See United States v.
Cappas, 29 F.3d 1187, 1189 (7th Cir. 1994); see
also United States v. Taylor, 13 F.3d 986, 994
(6th Cir. 1994) ("sec. 924(c)’s unit of
prosecution is the underlying offense, not the
number of firearms"). Therefore, imposing
multiple sec. 924(c) penalties for the use of
more than one gun in a single underlying offense
is not permitted because sentencing in this
fashion would violate the Double Jeopardy Clause.
See Cappas, 29 F.3d at 1189 ("[U]se of multiple
guns in a single drug conspiracy will not support
multiple convictions under sec. 924(c)."); see
also United States v. Willett, 90 F.3d 404, 408
(9th Cir. 1996); United States v. Chalan, 812
F.2d 1302, 1317 (10th Cir. 1987). Cf. Albernaz v.
United States, 450 U.S. 333, 344 (1981) ("[T]he
question of what punishments are constitutionally
permissible [under the Double Jeopardy Clause] is
not different from the question of what
punishments the Legislative Branch intended to be
imposed.").
Similarly, the Sentencing Commission has clearly
stated that once a sentence under sec. 924(c) has
been imposed, a sentencing court cannot add a
Guidelines enhancement for conduct that has
already been punished by the sec. 924(c) penalty.
See U.S.S.G. sec. 2K2.4 Application Note 2 and
Background Commentary./5 Therefore, because a
sec. 924(c) penalty accounts for all of the guns
possessed, carried, or used by the defendant in
relation to an underlying offense, a Guidelines
enhancement cannot also be imposed for use of
more than one gun in the same underlying offense.
See United States v. Knobloch, 131 F.3d 366, 372
(3d Cir. 1997) (holding that a defendant cannot
receive a sec. 924(c) penalty for one gun and a
Guidelines enhancement for a different gun used
in the commission of the same underlying
offense); United States v. Duran, 4 F.3d 800, 804
(9th Cir. 1993) (holding that where a defendant
is sentenced under sec. 924(c), an enhancement
under sec. 2B3.1(b)(2)(F) cannot be imposed for
an express threat of death during the commission
of the same crime); United States v. Smith, 981
F.2d 887, 893 (6th Cir. 1992) (same). But see
Willett, 90 F.3d at 408 (holding that a defendant
may be sentenced under sec. 924(c) for possession
of a gun and under sec. 2D1.1(b)(1) for his
possession of a knife and silencer in the same
underlying drug trafficking offense). However,
the question presented in this case is whether a
sentencing court can impose a sec. 924(c) penalty
in combination with a Guidelines enhancement for
the defendant’s use of a gun and a bomb, as
opposed to the use of two guns, in the same
underlying offense. We conclude that it can.
White was convicted under sec. 924(c) for using
and carrying a gun in connection with the violent
crime of bank robbery. The district court imposed
the mandatory five year consecutive sentence to
account for this conviction. The district court
further found that White used a bomb in
connection with the same bank robbery and
enhanced his sentence under sec.2B3.1(b)(2)(E)
for this aspect of his criminal conduct./6 White
argues that because his conduct in using the bomb
was already accounted for in the imposition of
the mandatory minimum sentence under sec. 924(c),
the district court could not also enhance his
sentence under the Guidelines for the use of a
bomb in the same underlying offense./7
As discussed above, White is correct that the
Guidelines prohibit a sentencing court from
imposing a Guidelines enhancement for conduct
that has already been punished by sentencing the
defendant under sec. 924(c). However, we disagree
with White that his conduct in using a bomb
during the robbery was punished by the district
court’s imposition of a five-year consecutive
sentence under sec. 924(c). As the Supreme Court
has recently held, 18 U.S.C. sec. 924(c)(1)(A),
prohibiting the use of a gun to commit a crime,
and sec. 924(c)(1)(B)(ii),/8 prohibiting the use
of a bomb to commit a crime, are separate
offenses, not differing penalties for the same
criminal conduct of using a "firearm" to commit
a crime. See Castillo v. United States, 120 S. Ct.
2090, 2091, 2096 (2000). White was convicted
under the former section, not the latter, and
there is a "substantive and substantial"
difference in the conduct punished by the two
sections, id. at 2094. As the Supreme Court has
stated, "the difference between carrying, say, a
pistol and carrying a machinegun (or, to mention
another factor in the same statutory sentence, a
’destructive device,’ i.e., a bomb) is great,
both in degree and kind. And, more importantly,
that difference concerns the nature of the
element lying closest to the heart of [sec.
924(c)]." Id. Congress intended to punish the use
of a bomb to commit a crime by a minimum sentence
of thirty years. See sec. 924(c)(1)(B)(ii).
Therefore, the district court’s imposition of a
five-year sentence for White’s use of a gun does
not adequately account for his conduct of using
a bomb. Because White was not punished for the
use of the bomb to the extent Congress intended,
the district court was free to impose a sentence
under the Guidelines to account for that conduct.
See United States v. Mancillas, 183 F.3d 682, 710
(7th Cir. 1999); United States v. Haines, 32 F.3d
290, 293 (7th Cir. 1994) (stating that
impermissible "double counting" occurs only "when
identical conduct is described in two different
ways so that two different adjustments apply").
We, therefore, conclude that the district court
did not err when it enhanced White’s sentence
under U.S.S.G. sec.2B3.1(b)(2)(E) for his use of
a bomb along with imposing the five-year
mandatory minimum sentence required by his
conviction under 18 U.S.C. sec. 924(c)(1)(A) for
his use of a gun in relation to the same
underlying offense.
b. Endangering Others
White finally argues that the district court
erred when it enhanced his sentence under
multiple Guideline sections for his conduct
during his escape from the bank. White asserts
that the district court engaged in impermissible
double counting because it enhanced his sentence
under different sections for the same conduct.
"[D]ouble counting occurs when the court
assesses more than one enhancement to the offense
level for a single offense based on the same
underlying conduct." Mancillas, 183 F.3d at 710.
In this case, the district court enhanced White’s
sentence under sec. 2B3.1(b)(4)/9 for his
conduct in taking Ms. Torres hostage during his
escape from the bank. White’s sentence was also
enhanced under sec. 3A1.2(b)/10 for assaulting
Officer Hallinan by pointing his gun at the
officer several times during the escape. In
addition, the district court applied a sec.
3C1.2/11 enhancement to White’s sentence
because, during White’s flight from the bank, he
endangered others by causing Officer Hallinan to
fire on him as well as by driving the wrong way
down a one-way street. White contests the
addition of the enhancement under sec. 3C1.2,
claiming that this enhancement penalizes him for
conduct that has already been punished by the
enhancement of his sentence under the two other
guidelines. White further argues that his driving
was insufficiently reckless to pose a substantial
danger to others as required to impose an
enhancement under sec. 3C1.2.
The district court imposed the three
enhancements for three different aspects of
White’s conduct during his flight from the bank.
Because "[e]ach enhancement responded to a
separate aspect of his conduct," the cumulative
adjustment of White’s sentence under the
different guidelines was appropriate. See United
States v. Swoape, 31 F.3d 482, 483 (7th Cir.
1994) (holding that it was appropriate to enhance
the defendant’s sentence under several different
guidelines for his conduct in engaging in a
shoot-out with police followed by his reckless
driving during flight from a bank robbery). In
addition, the district court’s finding that
White’s driving posed a substantial risk of
serious bodily injury or death to another person
is not clearly erroneous. See United States v.
Chandler, 12 F.3d 1427, 1433 (7th Cir. 1994)
(reviewing for clear error a district court’s
factual findings that a defendant’s conduct
endangered others in such that a sec. 3C1.2
sentencing enhancement was appropriate). We
therefore conclude that the district court did
not err when it enhanced White’s sentence under
U.S.S.G. sec.sec. 2B3.1(b)(4), 3A1.2(b), and
3C1.2.
III. CONCLUSION
For the foregoing reasons, White’s conviction
and sentence are Affirmed.
/1 The line of questioning was as follows:
Q: Now this girl that you talked about, you said
how old was she?
A: Approximately 14.
Q: Yes. Her birth date, did you learn during the
course of that suit, sir, was February 10, 1978?
A 13 year old girl.
A: Uh-huh.
* * *
Q: You went to her house and you raped her?
A: No, that is not correct.
* * *
Q: You had sexual intercourse with her against her
will as she was crying; isn’t that correct?
A: No, it’s not.
* * *
Q: She was treated at West Suburban Hospital;
isn’t that correct?
A: I wouldn’t know that.
* * *
/2 "Firearm" is defined in 18 U.S.C. sec. 921(3) as:
"(A) any weapon (including a starter gun) which
will or is designed to or may readily be
converted to expel a projectile by the action of
an explosive; (B) the frame or receiver of any
such weapon; (C) any firearm muffler or firearm
silencer; or (D) any destructive device."
The identical definition of a "firearm" is used
for purposes of U.S.S.G. sec. 2B3.1. See U.S.S.G.
sec. 2B3.1 Application Note 1 and sec. 1B1.1(e).
/3 U.S.S.G. sec. 2K2.4(a) provides:
If the defendant, whether or not convicted of
another crime, was convicted under 18 U.S.C. . .
. sec. 924(c) . . . the term of imprisonment is
that required by statute.
/4 U.S.S.G. sec. 2K2.4 Application Note 2 provides:
Where a sentence under this section is imposed in
conjunction with a sentence for an underlying
offense, any specific offense characteristic for
the possession, use, or discharge of an explosive
or firearm (e.g. sec. 2B3.1(b)(2)(A)-(F)
(Robbery)) is not to be applied in respect to the
guideline for the underlying offense.
/5 The Background Commentary to U.S.S.G. sec. 2K2.4
states in relevant part:
18 U.S.C. sec.sec. 844(h), 924(c), and 929(a)
provide mandatory minimum penalties for the
conduct proscribed. To avoid double counting,
when a sentence under this section is imposed in
conjunction with a sentence for an underlying
offense, any specific offense characteristic for
explosive or firearm discharge, use, or
possession is not applied in respect to such
underlying offense.
/6 U.S.S.G. sec. 2B3.1(b)(2)(E) provides "if a
dangerous weapon was brandished, displayed, or
possessed, increase by 3 levels." Section 1.B1.1
Application Note 1(d) defines "dangerous weapon"
as "an instrument capable of inflicting death or
serious bodily injury." The fact that White used
a fake bomb during his commission of the robbery
is irrelevant for imposition of this enhancement
because Application Note 1(d) further provides
that "[w]here an object that appeared to be a
dangerous weapon was brandished, displayed, or
possessed, treat the object as a dangerous
weapon."
/7 We note that White’s bomb was fake, and, although
fake bombs are treated as real ones in the
sentencing Guidelines, fake bombs do not subject
one to punishment under sec. 924(c). See 18
U.S.C. sec. 921(a)(4) ("The term ’destructive
device’ shall not include any device which is
neither designed nor redesigned for use as a
weapon."); see also United States v. Brewer, 36
F.3d 266, 270 (2d Cir. 1994) (holding that
possession of a fake or toy gun does not violate
sec. 924(c)); United States v. Kirvan, 997 F.2d
963, 966 (1st Cir. 1993); United States v.
Westerdahl, 945 F.2d 1083, 1087 (9th Cir. 1991).
Therefore, White’s conviction under sec. 924(c)
for his use of a real gun does not account for
his additional use of a fake bomb, for which he
cannot be punished under that statute.
However, we do not base our conclusion on the
distinction between fake and real firearms.
Resting our decision solely on that distinction
would lead to the perverse result that a
defendant who uses a real gun and a fake gun in
the commission of the same offense is eligible to
receive a higher sentence than a defendant who
used two real guns to commit the same crime. This
is because the former defendant could receive
both a statutory sentence under sec. 924(c) for
the real gun and a Guidelines enhancement for the
fake gun, while the latter defendant, whose
conduct presents a greater risk of harm, could
only receive either the statutory sentence or the
Guidelines enhancement, but not both. We do not
interpret the Guidelines to produce this result
which is clearly contrary to their policy and
purpose. See U.S.S.G. Ch. 1 Pt. A.3 (noting that
one of the major policy goals of the Guidelines
is to create "a system that imposes appropriately
different sentences for criminal conduct of
differing severity"); United States v. Dawn, 129
F.3d 878, 884 (7th Cir. 1997) (noting that the
Guidelines operate to punish more culpable
conduct more severely). Therefore, we will treat
fake guns and bombs as indistinguishable from
real ones for purposes of this discussion.
/8 18 U.S.C. sec. 924(B)(ii) provides that if the
firearm "is a machinegun or a destructive device,
or is equipped with a firearm silencer or firearm
muffler, the person shall be sentenced to a term
of imprisonment of not less than 30 years." 18
U.S.C. sec. 921(a)(4) defines a destructive
device as "(A) any explosive, incendiary, or
poison gas--(i) bomb, (ii) grenade, (iii) rocket
having a propellant charge of more than four
ounces . . . ."
/9 U.S.S.G. sec. 2B3.1(b)(4) provides: "(A) if any
person was abducted to facilitate commission of
the offense or to facilitate escape, increase by
4 levels. . . ."
/10 U.S.S.G. sec. 3A1.2 provides: "If--(b) during the
course of the offense or immediate flight
therefrom, the defendant . . ., knowing or having
reasonable cause to believe that a person was a
law enforcement or corrections officer, assaulted
such officer in a manner creating a substantial
risk of serious bodily injury, increase by 3
levels."
/11 U.S.S.G. sec. 3C1.2 provides: "If the defendant
recklessly created a substantial risk of death or
serious bodily injury to another person in the
course of fleeing from a law enforcement officer,
increase by 2 levels."