United States v. Hembree, Michael W. ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 20, 2007
Decided March 21, 2007
Amended May 3, 2007
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3795
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of
Illinois
v.
No. 04-20003-001
MICHAEL W. HEMBREE,
Defendant-Appellant. Michael P. McCuskey,
Chief Judge.
ORDER
Michael Hembree and his associate decided to rob banks. Within a one-
month period in 2003, the pair took handguns and robbed four banks in Illinois.
During the first two robberies, Hembree and his accomplice entered the banks with
drawn guns and took money from either the drawers or the vault. Then, while the
duo held the victims at gunpoint, they asked whether anyone was asthmatic and
preferred mace to pepper spray. After shooting pepper spray at the victims,
Hembree and his associate fled with the money. The later two bank robberies were
similar, but the record does not disclose whether the victims were given their
preference of mace or pepper spray. The robbers, apparently emboldened by their
four successes, moved their act further south, and robbed a bank in Tennessee. But
No. 06-3795 Page 2
this time, following a high-speed chase, police apprehended them. After his arrest,
Hembree admitted to robbing the Tennessee bank, a crime for which he was later
convicted, as well as the four previous robberies in Illinois.
For the Illinois robberies, the government charged Hembree and his co-
defendant with four counts of armed bank robbery in violation of 18 U.S.C.
§ 2113(a), (d), and four counts of using a firearm during the robberies in violation of
18 U.S.C. § 924(c). Hembree eventually pleaded guilty to all charges in 2005, but
later sought to vacate the pleas on the four § 924(c) counts, arguing that he was
being subjected to double jeopardy because those counts contained the same
elements as the four § 2113 counts, though they were based on different statutes.
In its order denying Hembree’s motion, the district court noted that our decision in
United States v. Harris, 832 F.2d 88 (1987), where we held that the double jeopardy
clause does not prohibit convictions and sentences based on both 18 U.S.C.
§ 2113(d) and 18 U.S.C. § 924(c) for the same misconduct, controlled the outcome of
his case. The district court then issued four consecutive sentences, totaling 82
years’ imprisonment on the § 924(c) counts, the minimum required by statute, and
one additional month for the § 2113(d) counts.
His appointed counsel now moves to withdraw under Anders v. California,
386 U.S. 738 (1967), because he is unable to discern a nonfrivolous basis for the
appeal. Counsel’s supporting brief is facially adequate, and Hembree has not
responded to counsel’s motion, see Cir. R. 51(b), so we limit our review of the record
to the potential issues counsel has identified. See United States v. Schuh, 289 F.3d
968, 973-74 (7th Cir. 2002). Counsel first considers whether Hembree might
challenge the district court’s rulings on his pre-trial motions to suppress his
confession and to suppress evidence seized because of his confession. But, as
counsel notes, Hembree pleaded guilty and an unconditional guilty plea waives all
non-jurisdictional defects. See United States v. Rogers, 387 F.3d 925, 932 (7th Cir.
2004). We therefore agree with counsel that any challenges to rulings on Hembree’s
pre-trial motions would be frivolous.
Counsel also considers whether Hembree might renew his argument that
convictions and sentences based on both 18 U.S.C. § 2113(d) and 18 U.S.C. § 924(c)
violate the double jeopardy clause. As counsel correctly notes, double jeopardy
claims are not waived by the defendant’s guilty plea. See Gomez v. Berge, 434 F.3d
940, 943 (7th Cir. 2006). But we have repeatedly held that the double jeopardy
clause is not violated where, as here, Congress specifically authorizes cumulative
punishments imposed in a single trial for the same offense. See United States v.
Colvin, 353 F.3d 569, 575 (7th Cir. 2003), United States v. Harris, 832 F.2d 88, 89-
91 (7th Cir. 1987) (citing Missouri v. Hunter, 459 U.S. 359 (1983)); see also United
States v. Arrington, 159 F.3d 1069, 1073 (7th Cir. 1998). We thus agree with
counsel that it would be frivolous to raise this argument.
No. 06-3795 Page 3
Counsel finally considers challenging Hembree’s sentence of 82 years’
imprisonment for the four § 924(c) counts, but correctly concludes that such a
challenge would be frivolous. Hembree’s sentence was the statutory minimum and
the consecutive terms were legislatively mandated. 18 U.S.C. § 924(c). The length,
though harsh, did not violate the Eighth Amendment. See Arrington, 159 F.3d at
1073. The one month sentence for the § 2113(d) counts fell well below the advisory
guidelines range of 97 months, and therefore any argument of unreasonableness
would be frivolous.
Accordingly, counsel's motion to withdraw is GRANTED and the appeal is
DISMISSED.