United States v. Cooper

360 F. App'x 657
Court of Appeals for the Seventh Circuit·Decided January 20, 2010·No. No. 08-3492·Published·Cited by 2 cases

Opinion

ORDER

Marc Cooper and two of his buddies robbed a jewelry store in Rockford, Illinois. The authorities eventually caught up with them, and Cooper and the others were charged with conspiracy, robbery and using a firearm during a crime of violence. [658]*658Cooper pled guilty to the robbery count pursuant to 18 U.S.C. § 1951 and the firearm offense pursuant to 18 U.S.C. § 924(c). Cooper was sentenced to 71 months on the robbery offense and a consecutive 84 months on the firearms offense, for a total of 155 months. Cooper filed a notice of appeal but his appointed lawyer moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot find any nonfrivolous ground for appeal. Cooper filed a response to his lawyer’s submission. See Cir. R. 51(b). Limiting our review to the potential issues raised in counsel’s facially adequate supporting brief and in Cooper’s response, see United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009), we grant counsel’s motion to withdraw and dismiss the appeal.

According to Cooper’s plea agreement, on August 2, 2007, he and two others entered Soto’s Jewelry store in Rockford, Illinois intent on robbing the place. All three were armed. Cooper jumped on the counter and ordered an employee of the store to get on the ground as one of his cohorts went into a small back room and dragged a second employee from the back room to the front area of the store causing the employee to sustain injuries in the form of abrasions and bruises. The district court estimated that the employee was dragged about six feet. Cooper and the others stole merchandise valued at approximately $3,000.

The principal issue at sentencing was whether the dragging of the employee from the back of the store was an “abduction” of the victim or merely a “restraint” under the pertinent sentencing guideline. See U.S.S.G. § 2B3.1(b)(4). Also at issue was whether the victim sustained bodily injury when she was dragged across the store, and whether assessing the bodily injury enhancement and the abduction or restraint amounted to impermissible double counting. The district court found that the victim was abducted (not merely restrained) and that she sustained bodily injury. The court also noted that even if it was incorrect on the abduction versus restraint issue, it would have given the same sentence.

We begin with Cooper’s primary argument that the court was incorrect in finding that there was an “abduction” of the victim. Under § 2B3.1(b)(4), a defendant convicted of a robbery offense is given a four level increase in his offense level if “any person was abducted to facilitate commission of the offense or to facilitate escape” and a two level increase if anyone was “physically restrained.” U.S.S.G. § 2B3.1(b)(4). The term “physical restraint” is defined to include (but is not limited to) tying, binding or locking up a victim. See U.S.S.G. § 1B1.1, comment (n.1(K)); United States v. Doubet, 969 F.2d 341, 346 (7th Cir.1992).

Because there is no question that this offense at least involved a physical restraint of the victim, the question before us is whether the conduct at issue here— dragging a robbery victim about six feet from one room to another — is an “abduction.” As a criminal history category IV offender, if Cooper is correct his sentencing range would have been 57-71 months. If the district court was correct, then his range would have been 70-87 months. The district court, following United States v. Osborne, 514 F.3d 377 (4th Cir.2008), found that moving the victim from the back room of the store to the front area, amounted to an abduction because, under the guidelines, an abduction occurs when a victim is forced to accompany a defendant “to different location.” See U.S.S.G. § 1B1.1, comment (n.1(A)).

An abduction enhancement is not supported by this Circuit’s case law. In United States v. Carter, 410 F.3d 942, 954 (7th [659]*659Cir.2005), we held that forcing a bank teller at gunpoint from the back vault to her drawer against her will constitutes a restraint. And in a similar case, we held that a restraint enhancement was appropriate where the defendant directed three bank tellers to a small room in the back of the bank at gun point. United States v. Doubet, 969 F.2d 341, 346 (7th Cir.1992); see also United States v. Nelson, 137 F.3d 1094, 1112 (9th Cir.1998) (“[O]rder[ing] a jewelry store employee and customer to the back room at gunpoint ... constitutes physical restraint.”). By contrast, forcing a bank employee at gunpoint from a parking lot into the bank warranted a four level enhancement for abduction, because this amounted to a “different location” under the guidelines. United States v. Taylor, 128 F.3d 1105, 1110-11 (7th Cir.1997); see also United States v. Gall, 116 F.3d 228, 230 (7th Cir.1997) (abduction enhancement proper where victims were forced at gunpoint into trucks and drove around “a significant distance”); United States v. Davis, 48 F.3d 277, 279 (7th Cir.1995) (forcing victim at gunpoint from parking lot to inside the credit union satisfied abduction requirement).

As mentioned, the district court relied on United States v. Osborne, 514 F.3d 377 (4th Cir.2008), in finding the abduction enhancements applicable. In Osborne, the defendants forced employees of a Wal-greens drug store from the pharmacy section of the store, which was separated by a secured door and only accessible by authorized persons via keypad, through the entire building and out to the front door. Id. at 391. The court found that the victims were taken hostage to facilitate the defendants’ escape — which is the type of conduct “plainly targeted by the abduction enhancement.” Id. at 390.

The facts in this case really do not resemble the situation in Osborne. Here, the store was a small retail jewelry store and the victim was moved no more than six feet. Given the dimensions of the store and the nature of the movement of the victim, this case is materially different from Osborne. On the other hand, this case is indistinguishable from cases such as Carter and Doubet. Under these facts, and taking into account the physical dimensions of the jewelry store, we believe that transporting the victim six feet is more akin to a restraint than it is an abduction, and so the district court erred in holding otherwise.

The next issue is whether the error was harmless.

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United States v. Cooper, 360 F. App'x 657 (7th Cir. 2010).

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