United States v. Donyea Fowler ( 2021 )

NONPRECEDENTIAL DISPOSITION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 July 26, 2021
Decided July 27, 2021
Before
MICHAEL S. KANNE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-3080
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Indiana,
South Bend Division.
v. No. 3:18CR031-001
DONYEA FOWLER, Jon E. DeGuilio,
Defendant-Appellant. Chief Judge.
ORDER
After a four-day trial, a jury found Donyea Fowler guilty of robbery, brandishing
a firearm during a crime of violence, and possessing a firearm as a felon, and he
received a total sentence of 516 months in prison. Fowler appeals, but his appointed
counsel asserts that the appeal is frivolous and moves to withdraw. See Anders v.
California, 386 U.S. 738, 744 (1967). Fowler opposes counsel’s motion. See CIR. R. 51(b).
Because counsel’s brief appears thorough and explains the nature of the case and the
issues that an appeal of this kind might involve, we limit our review to the subjects that
she discusses and the additional issues that Fowler has raised in his response.
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). We agree with counsel that
No. 19-3080 Page 2
Fowler cannot raise a nonfrivolous argument challenging his conviction or sentence,
and so we grant the motion to withdraw and dismiss this appeal.
On six nights between December 2017 and February 2018, a man wearing
sweatpants, a hoodie sweatshirt, mismatched gloves, and a face mask robbed liquor
stores and convenience stores in South Bend, Indiana. The man brandished a
semi-automatic chrome handgun and stole cash, Newport cigarettes, Swisher cigarillos,
lottery tickets, and liquor. During several of the robberies, he carried a blue satchel.
Surveillance video captured each robbery. Police officers also obtained a video from the
night of the first robbery, at a different store, showing a man wearing the same clothes
as the robber (but without a face mask) cashing one of the stolen lottery tickets.
Through tips from the public, officers identified the man as Donyea Fowler, and they
obtained a warrant to track the location of his cell phone. Officers also knew that Fowler
had an active arrest warrant for possession of cocaine. When officers located Fowler, he
was getting into the backseat of a vehicle with two other people occupying the front
seats. They stopped the car, arrested Fowler, and recovered Newports, Swishers, and a
bottle of liquor from the backseat. The officers then impounded the car, which had been
rented for the weekend by the driver, and obtained a search warrant. In the trunk, the
officers found more Newports and Swishers, gloves, and a blue satchel with a
semi-automatic chrome handgun inside.
The government charged Fowler with six counts of robbery under the Hobbs
Act, 18 U.S.C. § 1951, one count of possessing a firearm as a felon, id. § 922(g)(1), and
one count of brandishing a firearm in relation to a crime of violence, id. § 924(c). A
superseding indictment filed seven months later added five additional counts of
brandishing a firearm in relation to a crime of violence. Id. After a four-day trial, a jury
found Fowler guilty on all counts. The district court sentenced Fowler to 516 months in
prison, consisting of 84 months for each of his § 924(c) convictions to run consecutively
and 12 months for the robbery and felon-in-possession convictions.
A. Motion to Suppress
Counsel initially considers whether Fowler could challenge the district court’s
denial of his motion to suppress evidence taken from the rental car after Fowler’s arrest,
but rightly concludes that this argument would be frivolous. When reviewing the
denial of a motion to suppress, we consider the legal conclusions de novo and review
factual findings for clear error. United States v. Edgeworth, 889 F.3d 350, 353 (7th Cir.
2018). Fowler has never disputed that he was a passenger in the rental car. Because
No. 19-3080 Page 3
passengers generally have no possessory interest, he would need to “demonstrate that
the stop itself was not justified and that the evidence obtained was derived from an
illegal stop.” United States v. Wilbourn, 799 F.3d 900, 908 (7th Cir. 2015). It would be
frivolous to argue that the officers improperly stopped the car when they had a valid
arrest warrant and a reasonable belief that Fowler was in the car based on both tracking
the location of his cell phone and watching a man matching his description get into the
car. See United States v. Cortez, 449 U.S. 411, 417 n.2 (1981).
Fowler asserts in his response that, after the officers seized the rental car, they
illegally searched the blue satchel found in the trunk of the car, so the evidence
recovered (mainly the handgun) should have been suppressed. But this argument
would be doubly frivolous. When arresting Fowler, the officers found Newports,
Swishers, and a bottle of liquor—the same items that were stolen— in plain view in the
backseat of the rental car; this would have allowed them to search the entire car even
without obtaining a warrant. See Wyoming v. Houghton, 526 U.S. 295, 307 (1999);
United States v. Zahursky, 580 F.3d 515, 521–23 (7th Cir. 2009). But, here, the officers did
obtain a warrant before searching the trunk, which allowed them to search any area of
the car where items from the robbery might be discovered, including inside the blue
satchel. See Archer v. Chisholm, 870 F.3d 603, 617 (7th Cir. 2017).
Fowler also asserts that the government violated his rights under the Fourth
Amendment by obtaining a warrant to track his location from his cell phone. But
Fowler did not raise this argument in his motion to suppress or at any other time in the
district court, so he could not raise it for the first time on appeal. See United States v.
Eymann, 962 F.3d 273, 286 (7th Cir. 2020) (explaining defendant cannot raise appellate
argument about lawfulness of frisk not made in motion to suppress).
B. Vindictive Prosecution
Counsel next addresses whether Fowler could challenge the superseding
indictment, but correctly determines that any argument would be frivolous. Fowler did
not object until sentencing that the government (he argued) filed the superseding
indictment to retaliate for the suppression motion he filed on the same day. But a
challenge to an indictment must be made before trial, see FED. R. CRIM. P. 12(b)(3)(B), so
the court rightly did not entertain this objection. Moreover, even if Fowler could contest
the superseding indictment on appeal, he could not raise a non-frivolous challenge to it.
Fowler has asserted nothing more than conclusory statements about the prosecutor’s
alleged motives. See United States v. Falcon, 347 F.3d 1000, 1004–05 (7th Cir. 2003) (choice
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to add charges is “presumed valid,” and defendant “must affirmatively show through
objective evidence” that decision “was motivated by some form of prosecutorial
animus”) (quoting United States v. Bullis, 77 F.3d 1553, 1559 (7th Cir. 1996)).
C. Retention of Allegedly Biased Juror
Counsel next considers whether Fowler could challenge the district court’s
decision not to remove a juror during trial, and Fowler raises this potential issue as
well. When the government was examining one of the cashiers held at gunpoint, the
court received a note from a juror that stated: “This current witness looks very familiar
to me. I don’t know him personally, but I wonder if he works at a store I frequent.” The
court questioned the juror and learned that his relatives live near the store and that the
juror had bought liquor from the witness several times. Fowler moved to excuse the
juror, but the court denied the motion. We would review that decision for abuse of
discretion and reverse only if Fowler could show prejudice. See Griffin v. Bell, 694 F.3d
817, 821 (7th Cir. 2012). Here, the court clarified that the relationship between the juror
and cashier merely consisted of exchanging pleasantries, and it credited the juror’s
statements that these brief interactions would not affect his impartiality.
See United States v. Allen, 605 F.3d 461, 464–65 (7th Cir. 2010) (explaining that we afford
great deference to the district court’s assessment of a juror’s credibility). Counsel
correctly concludes that it would be frivolous to challenge the court’s credibility
assessment of this juror or its exercise of discretion to retain him.
D. Sufficiency of the Evidence
Counsel also considers arguing that the district court improperly denied
Fowler’s motion for acquittal under Rule 29 of the Federal Rules of Criminal Procedure.
Before presenting his defense, Fowler argued that the government’s evidence was
insufficient to prove: first, that the robberies had an effect on interstate commerce, see 18
U.S.C. § 1951(a), (b)(3); second, that two of the robberies involved a threat of force or
violence, or a victim’s fear of injury, as required by § 1951(b)(1); and third, that the gun
used in the robberies was a genuine firearm, for purposes of the charges under § 924(c).
Counsel correctly concludes that it would be frivolous to argue that the court
erred by denying the motion for a judgment of acquittal. On appeal, we would ask
“whether evidence exists from which any rational trier of fact could have found the
essential elements of a crime beyond a reasonable doubt.” United States v. Doody,
600 F.3d 752, 754 (7th Cir. 2010). Here, the government provided evidence that each
stolen product had been bought in one state and sold to a resident of another, thus
No. 19-3080 Page 5
establishing the interstate-commerce element of the crime. See United States v. Bailey,
227 F.3d 792, 798 (7th Cir. 2000). Further, the government introduced video surveillance
footage of the robber pointing a gun at the cashiers, testimony from those cashiers, and
evidence that officers recovered from the rental car a real handgun that matched the
gun in the videos. Thus, as counsel concludes, it would also be frivolous to argue that
the government failed to prove that the robberies involved a threat of force or violence
or a victim’s fear of injury; or that a genuine firearm was used in the robberies.
E. Rehaif Error
Next, counsel considers whether Fowler could challenge his conviction for
possessing a firearm as a felon because the indictment did not allege, nor did the jury
instructions require a finding, that, at the time of the robberies, he knew that he was a
felon. See Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019). (The Supreme Court
decided Rehaif eight days after the court instructed the jury.) But, as counsel concludes,
a Rehaif challenge would be pointless. Because Fowler did not object to these omissions,
we would review for plain error. See United States v. Maez, 960 F.3d 949, 964 (7th Cir.
2020). The omission from the jury instructions of the element that Fowler knew of his
status is a plain error, but on appeal Fowler would have the burden of showing that
there is a “reasonable probability” that he would have been acquitted if not for that
omission. Greer v. United States, 141 S. Ct. 2090, 2096 (2021). Not only did Fowler
stipulate that he was a felon, see Old Chief v. United States, 519 U.S. 172, 186 (1997), but
when he was charged in this case, he had been convicted of at least four prior felonies
and had served multiple sentences exceeding a year in prison, including an eight-year
sentence for burglary. See Greer, 141 S. Ct. at 2096. Further, in his response, Fowler refers
to a Rehaif error but does not suggest that he was ignorant of his status as a felon, which
solidifies that this argument would be futile.
F. Sentence
Counsel also properly concludes that Fowler could not make any non-frivolous
challenge to his sentence. The court determined that Fowler had a total offense level of
27 and a criminal history category of V, which resulted in a total guidelines range of 120
to 150 months’ imprisonment for the six counts of robbery and one count of possessing
a firearm as a felon. The court imposed a below-guidelines sentence of 12 months on
these counts. See Dean v. United States, 137 S. Ct. 1170, 1177 (2017). As for the § 924(c)
convictions, the court imposed six consecutive seven-year sentences, totaling
504 months. This resulted in a total sentence of 516 months in prison. As counsel points
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out, the court correctly determined that, under the statute, Fowler had to receive
consecutive sentences for each conviction under § 924(c). See 18 U.S.C. § 924(c)(1)(D)(ii);
Abbott v. United States, 562 U.S. 8, 13 (2010). So it would be frivolous to argue that the
court could have sentenced Fowler to anything less than 504 months in prison on these
counts. See 18 U.S.C. § 924(c)(1)(A)(ii); U.S.S.G. § 5G1.2(e).
Counsel also correctly determines it would be pointless for Fowler to contest the
sentence of 12 months’ imprisonment on the remaining counts. We would first review
this sentence de novo for procedural error and then for substantive reasonableness,
applying an abuse of discretion standard. See Gall v. United States, 552 U.S. 38, 46 (2007);
United States v. Morris, 775 F.3d 882, 885 (7th Cir. 2015).
Counsel rightly determines that the court calculated the correct guidelines range
and addressed the factors under 18 U.S.C. § 3553(a), so it would be pointless to advance
a procedural error. The two-level enhancement for obstruction of justice and the
assessment of a criminal history point for a past marijuana-possession conviction, both
of which Fowler objected to at his sentencing hearing, were warranted. The record
supports the court’s ruling that Fowler obstructed justice and committed perjury by
instructing his cousin to fabricate an alibi, and then Fowler falsely testified about this
alibi at trial. See U.S.S.G. § 3C1.1; United States v. DeLeon, 603 F.3d 397, 403 (7th Cir.
2010). And counsel properly concludes it would be frivolous to challenge the court’s
assessment of one criminal history point for Fowler’s conviction for possession of
marijuana, because receiving a sentence of any kind, not just jail time, allows for a point.
See U.S.S.G. § 4A1.1(c). Moreover, the court explained, it would have imposed the same
sentence regardless of the guidelines calculation, so even if any error had occurred in
calculating the range, it would be harmless. Morris, 775 F.3d at 885.
It would also be frivolous to argue that the court substantively erred in
determining Fowler’s sentence on the remaining counts, when the court exercised its
discretion to consider the total sentence required by § 924(c), see Dean, 137 S. Ct. at 1170,
and imposed a substantially below-guidelines sentence of 12 months. See United States v.
Purham, 795 F.3d 761, 765 (7th Cir. 2015) (explaining below-guidelines sentences are
presumptively reasonable).
Fowler also asserts that his robbery convictions should not be considered crimes
of violence under 18 U.S.C. § 924(c)(1)(A)(ii). But because it is well settled in our circuit
that robbery under the Hobbs Act categorically qualifies as a crime of violence within
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the meaning of § 924(c)(3)(A), see United States v. Fisher, 943 F.3d 809, 815 (7th Cir. 2019),
this argument would fail on appeal as well.
G. Ineffective Assistance
Finally, counsel considers whether Fowler could argue that he received
ineffective assistance from his trial attorney. But, as counsel points out, the proper
avenue for raising this claim would be a § 2255 motion, not a direct appeal. See Massaro
v. United States, 538 U.S. 500, 504–05 (2003); United States v. Flores, 739 F.3d 337, 341–42
(7th Cir. 2014).
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.