United States v. Ward, Aishauna , 146 F. App'x 847 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 16, 2005
Decided August 26, 2005
Before
Hon. Joel M. Flaum, Chief Judge
Hon. Michael S. Kanne, Circuit Judge
Hon. Ilana Diamond Rovner, Circuit Judge
No. 03-2998
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District
of Illinois, Eastern Division
v.
No. 01 CR 927
AISHAUNA WARD,
Defendant-Appellant. David H. Coar,
Judge.
ORDER
Defendant-appellant Aishauna Ward pled guilty to conspiracy to rob the bank at
which she worked (Count I); using force, violence or intimidation to rob a bank (Count
II); and using, carrying or brandishing a firearm during and in relation to the
commission of a crime of violence (Count III). The district court sentenced defendant
to concurrent sentences of 100 months on Count I and 60 months on Count II, to run
consecutively with a mandatory sentence of 84 months on Count III.
On March 4, 2005, we ordered a limited remand to the district court pursuant to
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005), to determine whether that
court would have imposed the same sentence had it understood that the guidelines
were advisory. After considering the briefs of both parties as well as the factors in 18
U.S.C. § 3553(a), the district court indicated that it would have imposed the same
sentence under an advisory guidelines regime.
No. 03-2998 Page 2
We first address defendant’s challenge to the district court’s calculation of the
guidelines range. This issue is important because even though United States v. Booker
made the guidelines advisory, it still requires judges to consider the sentencing range
established by the guidelines in addition to the other relevant factors. See 125 S. Ct.
738, 764 (2005); see also United States v. Baretz, 411 F.3d 867, 877 (7th Cir. 2005)
(“[W]e have said that obedience to the Supreme Court’s mandate in Booker requires
that the district court first calculate the correct guideline sentence so that that
calculation can serve as a meaningful guide in the district court’s imposition of a final
sentence.”).
Defendant argues that the district court improperly enhanced her sentence based
on the relevant conduct of her co-conspirator. The district court applied a four-level
enhancement under § 2B3.1(b)(4)(a), finding that the use of a gun by defendant’s co-
conspirator (her husband) to take her co-worker hostage during the robbery was
“reasonably foreseeable” to defendant. The court reasoned that, even if there was no
express agreement to abduct the co-worker, this action was foreseeable based on the
specific circumstances of the robbery, including the use of a weapon. Ward asserts that
this determination was erroneous because the record contains no evidence that she was
aware that her husband would use a weapon. She further contends that the abduction
was not reasonably foreseeable because, according to FBI statistics, less than two
percent of reported bank robberies involve hostage-takings.
Defendant’s arguments are without merit. This Court has held that a defendant
may be held liable for a co-conspirator’s use of a firearm and physical restraint
committed during the course of a robbery where it is reasonably foreseeable that “a
person might have to be physically restrained” in order to carry out the robbery. See
United States v. Dorsey, 209 F.3d 965, 967-68 (7th Cir. 2000). The fact that the co-
conspirators might not have agreed to a plan that specifically involved abduction does
not preclude a finding of reasonable foreseeability. See United States v. Cover, 199
F.3d 1274, 1275 (11th Cir. 2000).
The execution of the robbery provided an ample basis for the district court’s
conclusion that defendant knew or should have known that the robbery could involve
an abduction. First of all, defendant counted on another employee being present during
the robbery because she knew that the vault required two different employee codes in
order to be opened. Moreover, as soon as he entered the bank, defendant’s husband
immediately pointed his gun at the co-worker and used it to keep her from pressing any
alarm buttons or calling the police while defendant retrieved the money from the vault.
Once defendant handed her husband the money, he forced her co-worker out of the
store at gunpoint and held her there until he was able to escape. Defendant, who
stayed behind, made no effort to sound an alarm or alert police to the robbery. Based
on this evidence, it was reasonable for the district court to conclude that Ward and her
husband had coordinated the robbery ahead of time and knew that one of defendant’s
co-workers would be involved, and therefore that the abduction was reasonably
No. 03-2998 Page 3
foreseeable to Ward. We conclude that the district court properly applied the
enhancement. Cf. United States v. Atwater, 272 F.3d 511, 512 (7th Cir. 2001)
(reversing application of enhancement where district court made no specific findings
based on defendant’s case and concluded that use of firearm in robbery was reasonably
foreseeable solely because judge had “never heard of a bank robbery without a
firearm”).
Next, defendant argues that a further remand is necessary because the district
court did not explain how its consideration of the relevant factors led to the conclusion
that the court would have imposed the same sentence. We disagree. The sentence
imposed was within the guidelines range, and the district court was not obligated to
provide this Court with a detailed explanation of its consideration of each of the
relevant factors. See United States v. Dean, 414 F.3d 725, 729-30 (7th Cir. 2005)
(judge’s duty to consider the statutory factors is not a duty to make findings); United
States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005) (“Judges need not rehearse on
the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to
calculate the range accurately and explain why (if the sentence lies outside it) this
defendant deserves more or less.”).
The sole remaining inquiry is whether defendant’s sentence is reasonable. See
Paladino, 401 F.3d at 484 (if the district court indicates that it would reimpose the
original sentence, we will affirm the sentence against a plain-error challenge provided
that the sentence is reasonable). Any sentence that is properly calculated under the
guidelines is entitled to a rebuttable presumption of reasonableness. United States
v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Defendant can rebut this presumption
only by demonstrating that her sentence is unreasonable when measured against the
factors set forth in § 3553(a). Id. She has not done so. Although Ward points to the
fact that she received a greater sentence than her husband, this disparity does not
make her sentence unreasonable. While § 3553(a) instructs courts to consider the need
to “avoid unwarranted sentencing disparities,” in this case, the district court quite
reasonably applied an additional enhancement to defendant because she abused a
position of trust by using her job at the bank to commit the robbery.
Because the district court would have imposed the same sentence post-Booker and
because that sentence is reasonable, we conclude that Ward’s sentence was not the
result of plain error. Accordingly, we AFFIRM the judgment of the district court.