United States v. Molinaro

428 F. App'x 649
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 7, 2011
DocketNos. 10-2143, 10-2537
StatusPublished
Cited by1 cases

This text of 428 F. App'x 649 (United States v. Molinaro) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Molinaro, 428 F. App'x 649 (7th Cir. 2011).

Opinion

ORDER

Richard Molinaro and Thomas Senge entered a bank in Union Center, Wisconsin, wearing masks and hooded sweatshirts. Senge pressed a gun to the head of one employee and ordered her to fill a bag with cash while Molinaro guarded a second employee. Senge then forced the workers into a bathroom and wedged the door closed with a chair. The pair fled with $45,202, but were caught and prosecuted in federal court. Both men now appeal from [651]*651prison terms they received after pleading guilty to armed bank robbery, 18 U.S.C. § 2113(a), (d), and, in Senge’s case, to using a gun during the robbery, id. § 924(c)(l)(A)(ii). Molinaro contends that the district court erred by (1) characterizing his Wisconsin conviction for vehicular fleeing as a crime of violence in applying the career-offender guideline, and (2) overlooking his argument that his cooperation warranted a below-guidelines sentence. We reject both arguments and uphold Molinaro’s sentence. Senge’s newly appointed appellate lawyer has moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We grant that motion and dismiss Senge’s appeal.

We start with Molinaro, who avoided prosecution under § 924(c) by agreeing to cooperate with the government. As part of the written plea agreement, the government also agreed to recommend a 3-level reduction for acceptance of responsibility. See U.S.S.G. § 3E1.1. A probation officer concluded that Molinaro is a career offender, see id,. § 4B1.1, in light of his Wisconsin convictions for burglary of a dwelling, Wis. Stat. § 943.10(lm)(a), and vehicular fleeing, id. § 346.04(3). That designation, after the reduction for acceptance of responsibility, yielded a total offense level of 31, a Category VI criminal history, and a guidelines imprisonment range of 188 to 235 months. Molinaro objected to the probation officer’s conclusion that his conviction for vehicular fleeing is a crime of violence, and also asserted that he should receive a downward adjustment for what he described as his “minor” role in the offense, see U.S.S.G. § 3B1.2. At sentencing the district court overruled both objections and adopted the probation officer’s calculations.

The government asked for a sentence at the high end of the guidelines range. Although acknowledging that Molinaro’s cooperation influenced Senge to plead guilty, the prosecutor asserted that Molinaro had cooperated as “part of an arms-length negotiation” and only because the government promised not to charge him under § 924(c). The prosecutor insisted that Molinaro should not be sentenced below the guidelines range because he already had received the “benefit for his cooperation in this matter.”

Molinaro in turn asked for a sentence of 10 years to run concurrently with an undischarged state sentence. Counsel asserted that Molinaro was less culpable than Senge, and argued that, although the district court had declined to find that Molinaro was a minor participant, the court still should take into account that Senge had done “violent things” to the bank employees while Molinaro “simply stood there and took orders.” Counsel also argued that Molinaro had only two convictions for crimes of violence, both over a decade old, and that he was a “changed man.” Counsel further asserted that Molinaro’s cooperation with the government supported a below-guidelines sentence. The government had not filed a motion under U.S.S.G. § 5K1.1, but defense counsel insisted that Molinaro’s cooperation warranted a reduction under that guideline because he had given a “complete and truthful statement” to investigators and testified before a grand jury about Senge’s involvement in the robbery.

After discussing the bank robbery as well as Molinaro’s personal history and prior convictions, the district court imposed a term of 204 months to run consecutively to the undischarged state imprisonment. This sentence, the court explained, was “no greater than necessary” to hold Molinaro accountable, rehabilitate him, protect the community, and achieve parity with the sentences of similarly situated [652]*652offenders. The court did not mention Molinaro’s cooperation.

On appeal Molinaro first argues that the district court erred in concluding that his Wisconsin conviction for vehicular fleeing, see Wis. Stat. § 346.04(3), is a crime of violence for purposes of the career-offender guideline. We have held that a conviction under § 346.04(3) does qualify, United States v. Dismuke, 593 F.3d 582, 596 (7th Cir.2010), petition for cert. filed, 79 U.S.L.W. 3062 (U.S. July 19, 2010) (No. 10-109), but Molinaro contends that Dismulce was wrongly decided. He raises the issue only to preserve it for review in the Supreme Court, which recently upheld our conclusion that a conviction under a similar Indiana statute punishing the use of a vehicle to flee from the police, see Ind. Code § 35^4-3-3(b)(l)(A) (2004), is a crime of violence. See United States v. Sykes, 598 F.3d 334 (7th Cir.2010), aff'd, Sykes v. United States, — U.S. -, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011).

Molinaro’s main contention, however, is that the district court erred by not commenting on his argument that a sentence below the guidelines range was warranted by his cooperation. A sentencing judge “must adequately explain the chosen sentence to allow for meaningful appellate review,” Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and a judge “who fails to mention a ground of recognized legal merit (provided it has a factual basis) is likely to have committed an error or oversight,” United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). Yet in this instance the district judge was not required to discuss Molinaro’s cooperation.

In reaching’ this conclusion, we reject the government’s contention that Molinaro’s cooperation was not a “principal” argument in mitigation. A sentencing judge is not obligated to address “every pithy argument that a defendant raises, just the ‘principal’ ones,” United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir.2009), and, according to the government, Molinaro’s cooperation was not principal because he made several arguments in mitigation yet “failed to distinguish the cooperation argument as being of primary importance.” As the government concedes, however, defense counsel spoke at length about Molinaro’s cooperation relative to the § 5K1.1 factors and explained that, under United States v. Knox, 573 F.3d 441, 453 (7th Cir.2009), a sentencing court may consider a defendant’s cooperation as a basis for a reduced sentence without a government motion. This degree of discussion made his cooperation a principal argument in mitigation. Compare United States v. Arberry, 612 F.3d 898

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428 F. App'x 649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-molinaro-ca7-2011.