United States v. Raequon Allen , 702 F. App'x 457 ( 2017 )


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  •                         NONPRECEDENTIAL DISPOSITION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 August 9, 2017
    Decided August 21, 2017
    Before
    DANIEL A. MANION, Circuit Judge
    MICHAEL S. KANNE, Circuit Judge
    DIANE S. SYKES, Circuit Judge
    No. 16-2950
    Appeal from the
    UNITED STATES OF AMERICA,                       United States District Court
    Plaintiff-Appellee,                        for the Western District of Wisconsin.
    v.                                        No. 3:15CR00067-001
    RAEQUON ALLEN,                                  William M. Conley,
    Defendant-Appellant.                        Judge.
    ORDER
    Raequon Allen pleaded guilty to robbery in violation of the Hobbs Act, 18 U.S.C.
    § 1951(a), and to brandishing a gun during that crime in violation of 18 U.S.C.
    § 924(c)(1)(A)(ii). The district judge sentenced Allen to 36 months in prison for the Hobbs
    Act violation plus a consecutive, statutory minimum term of 84 months for the firearm
    offense. Allen challenges his firearm conviction, term of imprisonment, and various
    conditions of his supervised release. We affirm Allen’s firearm conviction because his
    conviction for Hobbs Act robbery is a valid predicate for his § 924(c) conviction. We
    vacate the sentence and remand to allow the judge to exercise his discretion, consistent
    with Dean v. United States, 
    137 S. Ct. 1170
    (2017), in calculating an appropriate sentence.
    Any infirmities in the supervised-release conditions may be addressed at resentencing.
    No. 16-2950                                                                            Page 2
    Over three days in January and February of 2015, Allen robbed three gas stations
    near Madison, Wisconsin, by pointing a gun at the cashiers and demanding cash and
    cigarettes. He was arrested a few days later by local police and charged with three
    counts of Hobbs Act robbery, 18 U.S.C. § 1951(a), and two counts of brandishing a
    firearm in furtherance of a crime of violence, 
    id. § 924(c)(1)(A)(ii).
    After Allen fired his first appointed attorney and twice attempted to fire his
    second attorney, he eventually pleaded guilty to one count of Hobbs Act robbery and
    one count of brandishing a firearm in furtherance of the robbery in exchange for the
    government’s agreement to dismiss the remaining three counts of the indictment and to
    recommend a sentence reduction for Allen’s acceptance of responsibility.
    The judge calculated a guidelines imprisonment range of 51 to 63 months for the
    robbery conviction and a statutory minimum of 84 months for the firearm conviction.
    The government argued that the court was constrained by United States v. Roberson,
    
    474 F.3d 432
    , 436–37 (7th Cir. 2007), which held that a sentencing judge must not reduce
    the sentence for the predicate crime in consideration of the mandatory sentence for the
    § 924(c) offense. So the judge imposed the seven-year statutory minimum for the firearm
    offense but recognized he could not consider that term when sentencing for the robbery
    conviction. After a lengthy colloquy with Allen, the judge explained the rationale behind
    imposing a 36-month sentence on the robbery count. He then imposed three years of
    supervised release on each count, to run concurrently. The judge noted that neither party
    had objected to the proposed conditions of supervised release but nonetheless read them
    aloud and confirmed that Allen understood the conditions.
    On appeal Allen first contends that a violation of the Hobbs Act is not
    categorically a “crime of violence” that serves as a predicate offense to support a § 924(c)
    conviction. The government argues that Allen waived this argument by pleading guilty
    unconditionally because “a defendant who pleads guilty waives his right to appeal all
    non-jurisdictional issues.” United States v. Phillips, 
    645 F.3d 859
    , 862 (7th Cir. 2011). Allen
    concedes that waiver forecloses his challenge, but he presses it nonetheless.
    Allen indeed waived this challenge, and in any event, his argument fails on the
    merits. After Allen filed his opening brief, this circuit “join[ed] the unbroken consensus
    of other circuits” and concluded that a Hobbs Act robbery is a crime of violence under
    the elements clause of § 924(c). United States v. Anglin, 
    846 F.3d 954
    , 965 (7th Cir. 2017),
    petition for cert. filed (May 31, 2017) (No. 16-9411). We elaborated on that holding in United
    States v. Rivera, 
    847 F.3d 847
    , 848–49 (7th Cir. 2017), cert. denied, 
    137 S. Ct. 2228
    (2017),
    No. 16-2950                                                                         Page 3
    noting that “one cannot commit Hobbs Act robbery without using or threatening
    physical force.”
    Allen next maintains (and the government agrees) that he must be resentenced in
    light of Dean because the district judge misapprehended his discretion to consider the
    mandatory seven-year sentence for the § 924(c) conviction when imposing punishment
    for the predicate robbery. Following Roberson, the judge recognized that he could not
    consider the seven-year sentence as “mitigating” and must review each conviction
    “distinctly.” Roberson is no longer good law, however, after the Court in Dean held that
    “[n]othing in § 924(c) restricts the authority conferred on sentencing courts by § 3553(a)
    and the related provisions to consider a sentence imposed under § 924(c) when
    calculating a just sentence for the predicate 
    count.” 137 S. Ct. at 1176
    –77. Thus we vacate
    Allen’s sentence and remand for resentencing consistent with Dean.
    Finally, Allen attacks his three-year term of supervised release, but he can seek a
    clarification or modification at his resentencing upon remand and to the extent
    authorized by 18 U.S.C. § 3583(e)(2). See United States v. Neal, 
    810 F.3d 512
    , 519–20 (7th
    Cir. 2016). Supervised release is part of the overall “sentencing package” and must be
    justified and imposed again as part of the new sentence. United States v. Mobley, 
    833 F.3d 797
    , 801 (7th Cir. 2016).
    Accordingly, we AFFIRM the convictions. We VACATE the sentence and
    REMAND to the district court for further proceedings consistent with this order.
    

Document Info

Docket Number: 16-2950

Citation Numbers: 702 F. App'x 457

Judges: Per Curiam

Filed Date: 8/21/2017

Precedential Status: Non-Precedential

Modified Date: 1/13/2023