United States v. McMurtry

253 F. Supp. 3d 1027, 2017 WL 2226605, 2017 U.S. Dist. LEXIS 77092
CourtDistrict Court, E.D. Wisconsin
DecidedMay 22, 2017
DocketCase No. 16-CR-128
StatusPublished

This text of 253 F. Supp. 3d 1027 (United States v. McMurtry) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. McMurtry, 253 F. Supp. 3d 1027, 2017 WL 2226605, 2017 U.S. Dist. LEXIS 77092 (E.D. Wis. 2017).

Opinion

[1029]*1029STATEMENT OF REASON MEMORANDUM

LYNN ADELMAN, District Judge

Defendant Casimir McMurtry participated in the armed robbery of a Family Dollar Store and a Walgreen’s Pharmacy location. He pleaded guilty to two Hobbs Act violations, 18 U.S.C. § 1951(a), and one violation of 18 U.S.C. § 924(c), and I set the case for sentencing. In imposing sentence, the district court must first determine the defendant’s imprisonment range under the guidelines, then make an individualized assessment of the appropriate sentence based on the factors set forth in 18 U.S.C. § 3553(a). E.g. United States v. Kappes, 782 F.3d 828, 837 (7th Cir. 2015).

I. GUIDELINE CALCULATION

Defendant’s pre-sentence report (“PSR”) set a base offense level of 20 on the first robbery count, U.S.S.G. § 2B3.1(a), then added 6 levels under § 2B3.1(b)(2)(B) because a firearm was “otherwise used” when defendant and his co-actor pointed their guns at the victim-employees while demanding money. On the second robbery, the PSR set a base level of 20, but declined to impose an enhancement for use of a firearm because defendant had been convicted of a § 924(c) violation arising out of this offense. See U.S.S.G. § 2K2.4 cmt. n.4. After applying the multi-count adjustment under U.S.S.G. § 3D1.4, and subtracting 3 levels for acceptance of responsibility, U.S.S.G. §-3E1.1, the PSR set a final offense level of 24 on the robberies counts. Coupled with defendant’s criminal history category of III, this produced a guideline range of 63-78 months on the robbery counts. The § 924(c) count required a sentence of 84 months consecutive, as the firearm was brandished. See U.S.S.G. § 2K2.4(a).

Defendant objected to the 6-level increase under § 2B3.1(b)(2)(B) on the first robbery count, arguing that a 5-level increase for “brandishing” under § 2B3.1(b)(2)(C) was more appropriate. He indicated that his conduct during this robbery consisted of standing by the door of the store and pointing a firearm at several people; the surveillance footage showed that he did not get close to anyone, kept the door propped open with his foot, and eventually crossed his arms, tucking his firearm into his armpit. Defendant further noted that he did not make any personalized threats to any specific victim.

The government responded that during this robbery defendant was armed with a .45 caliber pistol with an extended magazine, which he pointed at two victim-employees while standing near the entrance/exit door to the store. The government noted that while the exact distance between the door and. the checkout counter was unclear, the registers were adjacent to the door such that one entering the store need only turn right and take a few' steps before arriving at the counter. The government argued that defendant’s pointing the weapon at the two employees trying to get money from the register in order to satisfy the robbers’ demands created a personalized threat of harm, supporting the 6-level enhancement.

In United States v. Eubanks, 593 F.3d 645, 651 (7th Cir. 2010), the court explained that pointing a weapon at a specific victim creates a personalized threat of harm, warranting an “otherwise, used” adjustment; conversely, brandishing typically occurs where a defendant generally displays a weapon, or points the weapon at a group of people rather than a specific individual. Here, defendant pointed his gun at two specific employees, rather just generally displaying it. Moreover, as the government also noted, defendant could under relevant conduct rules be held responsible [1030]*1030for his co-actor’s action of pointing his pistol at the employee behind the register, conduct reasonably foreseeable to defendant and thus appropriately attributable to him. See U.S.S.G. § 1B1.3(a)(1)(B). I therefore overruled the objection. However, I also stated that this dispute over 1 level under the guidelines would not affect the final sentence I imposed under § 3553(a). See United States v. Hawkins, 777 F.3d 880, 885 (7th Cir. 2015).

II. SECTION 3553(a)

A. Sentencing Factors

Section 3553(a) directs the sentencing court to consider:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the [advisory sentencing guideline range;]
(5) any pertinent policy statement ... issued by the Sentencing Commission[;]
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a). The court must, after considering these factors, impose a sentence that is “sufficient but not greater than necessary” to satisfy the purposes of sentencing: just punishment, deterrence, protection of the public, and rehabilitation of the defendant. Id.

While the court must as part of the analysis consider the sentence recommended by the guidelines, it “may not perfunctorily impose a guidelines sentence or even presume that such a sentence is appropriate in a given case.” United States v. Warner, 792 F.3d 847, 855 (7th Cir. 2015). “Ultimately, it falls on the district court to weigh and balance the various factors and to ‘make an individualized assessment based on the facts presented.’” Id. (quoting Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)).

B. Analysis

1. The Offenses

On June 22, 2016, defendant and his two co-actors, Keyon Williams and Antonio Currin, drove to a Family Dollar Store location in Milwaukee to commit an armed robbery. They arrived in a black Chevrolet Cruze driven by Currin. Defendant and Williams, each wearing a mask covering his face and carrying a semi-automatic firearm, entered the store.

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Related

Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Eubanks
593 F.3d 645 (Seventh Circuit, 2010)
United States v. Qualls
373 F. Supp. 2d 873 (E.D. Wisconsin, 2005)
United States v. Thomas Hawkins
777 F.3d 880 (Seventh Circuit, 2015)
United States v. Parrish Kappes
782 F.3d 828 (Seventh Circuit, 2015)
United States v. H. Ty Warner
792 F.3d 847 (Seventh Circuit, 2015)
Dean v. United States
581 U.S. 62 (Supreme Court, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
253 F. Supp. 3d 1027, 2017 WL 2226605, 2017 U.S. Dist. LEXIS 77092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcmurtry-wied-2017.