In a case that implicated the Supreme Court’s recent decision in Dean v. United States, — S.Ct. — 2017 WL 1199461 at *6 (April 3, 2017), this week the Seventh Circuit decided United States v. Wheeler, dkt. 16-3435, decided May 19, 2017.
Until recently, United States v. Roberson, 474 F.3d 432 (7th Cir.2007) required that the district court could not consider the mandatory minimum for the 924(c) when it crafted the sentence for the Hobbs Act robbery. That changed with Dean, where the Supreme Court 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.”
Wheeler pleaded guilty to a Hobbs Act robbery in violation of 18 U.S.C. §1951(a) and to discharging a gun during a crime of violence in violation of 18 U.S.C. §924(c)(1)(A)(iii). The district court sentenced him to 108 months for the Hobbs Act robbery, plus ten years consecutive for the 924(c). The guideline range on the robbery was 84-105 months. The Seventh Circuit opinion does not go into detail about the lower court’s reasoning on the sentence, other than to note that the court imposed an above guideline sentence for the robbery (three months above the high end of the advisory guideline) and to state that the record does not suggest that the district court felt constrained by Roberson. According to the Wheeler Court, “[I]t is inconceivable that a judge who imposed a sentence above the Guidelines range for the predicate crime did so because of Roberson.”
I think Wheeler takes too conservative of an approach to the question of whether Roberson impacted the sentence. First, the question is not whether the judge imposed the sentence because of Roberson. The question is whether the court would impose a different sentence in light of Dean. Second, it is conceivable to me that a district judge could decide that a robbery with a shooting requires a sentence above the advisory guideline range, but after consideration of the 3553 factors, the same situation merits less than the total of the robbery sentence, plus 10 years. After all, Roberson required the district court to impose the robbery sentence without consideration of the 924(c) sentence. That means that the judge was supposed to impose a sentence for the total package and then add the 924(c) sentence. If the court took this requirement to heart, it would have no reason to comment on what the total package would be in the absence of Roberson. For all we know, the district judge in Wheeler thought that in consideration of all of the 3553 factors, the robbery (including the firearm discharge) merited a sentence of 108 months and she imposed the 120 month consecutive sentence because Roberson required her to add the 924(c) sentence to the complete robbery sentence. The bottom line is that the only way to find out what the judge would have done without the constraint of Roberson is to remand.
In any event, at this point it looks like the Seventh Circuit may only grant remands in cases where there is a suggestion in the record that the court felt constrained by Roberson.