NONPRECEDENTIAL DISPOSITION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
Argued August 3, 2010
Decided August 26, 2010
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09‐1613
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 08‐CR‐134
JOHNNY HAYES, Rudolph T. Randa,
Defendant‐Appellant. Judge.
O R D E R
Johnny Hayes, along with co‐defendant Derrick Powe, see United States v. Powe,
No. 09‐2758 (7th Cir. Aug. 3, 2010), committed four bank robberies, making off with more
than half a million dollars. He confessed and pleaded guilty to four counts of armed bank
robbery,
18 U.S.C. § 2113(a), (d)(2), and a count of brandishing a firearm during a crime of
violence,
id. § 924(c)(1)(A)(ii). The court agreed with the parties that the appropriate
guidelines range was 135 to 168 months’ imprisonment, plus an additional 84 months for
his conviction for brandishing a firearm. The district court sentenced him to a within‐
guidelines sentence of 240 months’ imprisonment. On appeal, Hayes does not challenge
his plea, conviction, or the guidelines calculations. Instead, he contests only the factual
validity of a single statement the district court made at sentencing about the robbery’s
impact on the racial attitudes of some bank employees.
No. 09‐1613 Page 2
After the government recommended a total imprisonment term of 240 months, five
victims testified, describing in various ways how they continued to feel victimized long
after the robberies ended. Bank teller Diane Smith described how the robbery sowed
distrust among co‐workers at the bank; another employee, Courtney Ceballos‐Navarrete,
recounted that she now reflexively assumes that any hooded black male (Hayes is black)
portends trouble. The PSR also recounts that an unnamed victim stated that after the
incident, she had a negative reaction when she had to interact with a person of color.
Before imposing the sentence, the district court observed that Hayes’s bank robberies
were serious crimes. The “nature and circumstances of this offense are almost as egregious
as any I have seen, except for those where people were pistol whipped or shots were fired
around the bank.” The court also viewed Hayes as a typical criminal, describing him as
similar to “all criminals and people who have criminal orientation. They don’t have to
follow the rules. Any time they think they want to, or need to, they can just pop off and do
what they think they’re entitled to. And that’s what I see here.”
The court then addressed the impact of the crime on the bank employees by fostering
distrust and souring race relations:
And some said here—I don’t know—Miss Navarrete said that, you know,
they took everything from us. And that’s—she said she has feelings. She
doesn’t know why she has these feelings. Or someone said that. But I know
why that is. It’s post‐traumatic stress disorder. And I was in Vietnam. . . .
But when you’re in a bank, in a pleasant environment—as people said,
you know, they had a group. Nice family knit group. Diane Smith said
everybody was honkey‐dory [sic]. And it changed everything with the
relationships. It even affected racial relations with some of them. Someone
was accused in the bank or suspected of being an inside—on the inside of
these jobs. You know, when this little bit of evil touches you, it has a
tendency to spread. And that’s hard on people who aren’t used to it. But that
is just another emphasis on why the nature and circumstances of the offense
is a serious one.
The court then imposed a sentence of 240 months.
On appeal, Hayes contends that his sentencing was procedurally flawed because the
district court clearly and erroneously attributed to Smith the complaint that the robbery
fostered racial distrust. (He does not argue that the complaint itself was an illegitimate
sentencing consideration.) Hayes correctly observes that Smith testified only about
No. 09‐1613 Page 3
workplace distrust generally, without regard to race. Hayes concludes that the court’s
injection of “additional and incorrectly perceived racial turmoil into that circumstance takes
the aggravation to a different and heightened level.”
When reviewing a criminal sentence, we must determine that no significant
procedural error occurred, such as selecting a sentence based on clearly erroneous facts, as
Hayes argues here. Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Anderson,
604
F.3d 997, 1003 (7th Cir. 2010). A defendant has a due process right to be sentenced on the
basis of accurate information. United States v. Mays,
593 F.3d 603, 608 (7th Cir.), cert. denied,
130 S.Ct. 3340 (2010); United States v. Lister,
432 F.3d 754, 762 (7th Cir. 2005). Accordingly,
that right is violated if the district court relied on clearly erroneous facts to determine the
sentence. United States v. Hankton,
432 F.3d 779, 790 (7th Cir. 2005); United States v. Coonce,
961 F.2d 1268, 1275 (7th Cir. 1992).
But Hayes has not shown that the district court’s factual statement about race
relations was wrong, much less clearly erroneous. The court said only that the robbery
affected race relations among “some” workers, which is supported by the statements of
both Ceballos‐Navarrete and the unnamed employee in the PSR. Moreover, the court did
not attribute the statement about race relations to Smith or say that she was among the
“some” who saw race relations deteriorate. And even if the court did wrongly attribute that
statement to Smith instead of Ceballos‐Navarrete, Hayes cannot show what difference it
made whether Ceballos‐Navarrete or Smith made the statement. See United States v. Soto,
48
F.3d 1415, 1422 (7th Cir. 1995) (holding that district court’s minor misstatement of record
was not plain error).
We also note that though the court was only summarizing the testimony it heard, a
sentencing court should take care to avoid inadvertently creating the impression that the
racial attitudes of the victims may have influenced the sentence. This is particularly true
here, where neither the government nor the defendant raised at sentencing the issue of race
and the other circumstances of case readily justify the sentence. While Congress has
mandated that crime victims be given the opportunity to speak at sentencing, see
18 U.S.C. §
3771(a)(4), a court should confine its sentencing rationale, as we are satisfied the court
ultimately did here, to the factors set forth in
18 U.S.C. § 3553(a), as framed by the parties.
The district court made evident here that the within‐guidelines sentence was easily justified
by the defendant’s repeated bank robberies of more than a half‐million dollars.
AFFIRMED.
