United States v. Rodriguez

322 F. Supp. 3d 907
CourtDistrict Court, E.D. Wisconsin
DecidedSeptember 4, 2018
DocketCase No. 17-CR-137
StatusPublished

This text of 322 F. Supp. 3d 907 (United States v. Rodriguez) 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. Rodriguez, 322 F. Supp. 3d 907 (E.D. Wis. 2018).

Opinion

LYNN ADELMAN, District Judge

Defendant Rebecca Rodriguez acted as the getaway driver when her boyfriend, Theodore Simmons, and another man, Robert Anderson, robbed a convenience store. During the robbery, Simmons and Anderson held store occupants at gunpoint, threatened to kill an employee, and assaulted a cashier.

Charged with aiding and abetting a Hobbs Act robbery, 18 U.S.C. § 1951(a), and use of a firearm during a crime of violence, 18 U.S.C. § 924(c), the court initially *908allowed defendant's release on conditions. When she absconded from pre-trial release and missed a court date, however, the court issued a warrant and the government added a charge under 18 U.S.C. § 3146. Following her arrest, defendant pleaded guilty to the robbery and failure to appear charges pursuant to an agreement with the government under which the § 924(c) count was dismissed. After accepting her pleas, I ordered a pre-sentence report ("PSR") and set the case for sentencing.

In imposing sentence, the district court must first correctly calculate the advisory sentencing guideline range, then consider the arguments of the parties and the factors set forth in 18 U.S.C. § 3553(a), making an individualized assessment based on the facts presented. After settling on the appropriate sentence, the court must adequately explain the chosen sentence to promote the perception of fair sentencing. United States v. Pankow, 884 F.3d 785, 793 (7th Cir. 2018).

I. GUIDELINE CALCULATIONS

Defendant's PSR set a base offense level of 20 on the robbery count, U.S.S.G. § 2B3.1(a), then added 6 levels because a firearm was "otherwise used," § 2B3.1(b)(2)(B) ; 2 levels because a victim sustained "bodily injury," § 2B3.1(b)(3)(A) ; 2 levels because a victim was "physically restrained" during the robbery, § 2B3.1(b)(4)(B) ; and 2 levels for obstruction of justice under U.S.S.G. § 3C1.1 based on defendant's failure to appear, see U.S.S.G. § 3C1.1 cmt. n.4(E), for an adjusted level of 32. On the failure to appear count, the PSR set a base offense level of 6, U.S.S.G. § 2J1.6(a)(2), then added 9 levels under § 2J1.6(b)(2) because the underlying offense carried an imprisonment term of 15 years or more, for an adjusted level of 15. The PSR then grouped the two counts under U.S.S.G. § 3D1.2(c), as the failure to appear charged in count two was treated as a specific offense characteristic on count one. After subtracting 3 levels for acceptance of responsibility, U.S.S.G. § 3E1.1, the PSR settled on a final level of 29. Coupled with defendant's criminal history category of I, this produced an imprisonment range of 87-108 months.

Defendant objected to the enhancements for use of a firearm, bodily injury, and restraint, indicating that Simmons and Anderson engaged in this aggravated conduct, not her, and that she should not be held responsible for their behavior. She further indicated that she drove the getaway car at the behest of Simmons, her abusive boyfriend, and that she was also afraid of Anderson. Finally, she noted that she suffers from severe mental illness.

Under the guidelines, a defendant is held responsible for the reasonably foreseeable acts of a co-defendant within the scope of their jointly undertaken criminal activity and in furtherance of that activity. U.S.S.G. § 1B1.3(a)(1)(B). I concluded that it was in this case foreseeable to defendant that her co-actors would use a gun and restrain or injure victims, and that her arguments about fearing the two men were properly addressed under § 3553(a).

Defendant also objected to the enhancement for obstruction of justice, as this was the conduct underlying count two, such that its application would constitute double counting. The PSR applied this enhancement correctly, consistent with the instructions in application note 3 to U.S.S.G. § 2J1.6. In this situation, where the defendant is convicted of both a failure to appear offense and the underlying offense, the court applies the obstruction enhancement on the underlying count, but not the failure to appear count, and then groups the two counts under U.S.S.G. § 3D1.2, which is what the PSR did here. There was no double counting; the obstructive conduct was considered just once in the *909combined guideline range. I accordingly adopted the PSR's guideline calculations.

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).

After considering these factors, the court must "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of sentencing: just punishment, deterrence, protection of the public, and provision of needed correctional treatment. Id.

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Related

United States v. Qualls
373 F. Supp. 2d 873 (E.D. Wisconsin, 2005)
United States v. H. Ty Warner
792 F.3d 847 (Seventh Circuit, 2015)
United States v. Jaimie Pankow
884 F.3d 785 (Seventh Circuit, 2018)
United States v. Musgraves
883 F.3d 709 (Seventh Circuit, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
322 F. Supp. 3d 907, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rodriguez-wied-2018.