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United States v. Anglin

United States Court of Appeals, Seventh Circuit

January 25, 2017

United States of America, Plaintiff-Appellee,
Michael Anglin, Defendant-Appellant.

          Argued November 7, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14-CT-3 - C.N. Clevert, Jr., Judge.

          Before Easterbrook and Williams, Circuit Judges, and Feinerman, District Judge. [*]

          Feinerman, District Judge

         A jury found Michael Anglin guilty of Hobbs Act robbery, discharging a firearm in furtherance of a crime of violence (the Hobbs Act robbery) under 18 U.S.C. § 924(c), and related offenses. The district court sentenced him to 230 months' imprisonment, followed by three years of supervised release.

         Anglin appeals, pressing three challenges. First, he contends that the police arrested him without probable cause in violation of the Fourth Amendment, requiring suppression of the arrest's fruits. Second, he contends that his § 924(c) conviction was improper because Hobbs Act robbery is not a qualifying crime of violence. Third, he contends that his sentence is improper in various respects. Except for his challenge to the supervised release conditions, Anglin's arguments are without merit, so we affirm in large part and vacate and remand only as to that component of his sentence.

         I. Background

         On December 9, 2013, three men robbed an automobile repair shop in Milwaukee: our defendant, Michael Anglin ("Anglin"); his brother, Dave Anglin ("Dave"); and Michael Green, an associate of theirs who at all relevant times lived at the same federal halfway house as Dave. During the robbery, Anglin shot a repair shop employee in the abdomen.

         The next day, Green turned informant. He called the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"), identified himself, and reported that the Anglin brothers were plotting to commit robberies and wanted him to join them. ATF registered Green as a "confidential informant" and assigned Special Agent Rick Hankins to lead its investigation.

         Hankins met with Green three days later, on December 13. Green reported that he had befriended Dave at the halfway house and become a trusted confidant of both Anglins. Green said that the Anglins recently invited him to commit robberies with them. According to Green, Dave needed cash and was impatient to commit "any kind of robbery." Green said that he had ridden in Anglin's SUV several times, once accompanying the brothers to Anglin's residence. Green also said that on December 7 or 8, the Anglins showed him two assault rifles and a pistol inside the SUV.

         For informing on the Anglins, Green sought early termination of his supervised release and/or moving expenses for his family, but he received no promises of either. Green did not tell Hankins about the December 9 robbery that he and the Anglins committed. Hankins asked Green to tell the Anglins that he knew somebody who could help identify a target, so that ATF could insinuate an undercover agent into the group.

         During this initial conversation, Green provided cell phone numbers for both Anglins, a description of Anglin's car ("a silver or grey crossover SUV"), the general whereabouts of Anglin's residence ("on the edge of town"), the race and nickname of Dave's girlfriend ("a black female named 'Star'"), and a description of her car (a white Escalade). He also referred to the Anglins as "convicted felons."

         Hankins and his colleagues corroborated most of those details. They discovered that the Anglins' mother was the registered owner of a silver Acura MDX SUV and lived just inside Milwaukee's western border. While monitoring Dave's comings and goings at the halfway house, they saw him enter a white Escalade registered to Starmiqua Broom. They verified that Dave was serving a federal prison sentence for bank robbery and that Anglin had a state felony conviction for gun possession.

         Hankins and Green met again on December 16. Green reported that the Anglins, wary of outsiders, preferred not to add a fourth participant and intended to select a robbery target themselves. They also intended to act quickly; their plan was to rob "something" within the next several days. Green also revised one aspect of his December 13 statement: the Anglins showed him two guns, not three, in the SUV on December 7 or 8-an assault rifle and a pistol.

         Hankins showed Green a photo of the apartment complex where the Anglins' mother lived and a generic image of a silver Acura MDX from the same model year as hers. Green confirmed that the former depicted the residence he visited with the Anglins and that the latter matched the appearance of Anglin's SUV. Before departing, Hankins gave Green a digital recorder to surreptitiously capture future conversations with the Anglins.

         At 5:00 a.m. the next morning, Hankins noticed a text message from Green: "They trying to do something in the morning what I do." Hankins immediately called Green. Green reported that the Anglins had planned an armed robbery, to be carried out by the trio sometime after 8:00 a.m., which was the earliest that Dave and Green could leave the halfway house. Hankins told Green to go along with the plan and keep ATF apprised of the Anglins' movements.

         Hankins and another agent went to the mother's residence. Shortly after 8:00 a.m., they saw Anglin leave the residence and drive off in the Acura, which was parked outside. A short while later, Green called Hankins to report that Dave left the halfway house just after 8:00. According to Green, the plan was for Anglin to pick up Green at or near the halfway house, and then meet Dave "out on the street." Green re- layed further information about the planned robbery: the target was a drug house somewhere near 74th Street and Capitol Drive, about three miles from the halfway house. Green did not know the exact address.

         Green further reported that Dave told him to look out for a black Dodge Charger parked near the halfway house that looked like a "fed." Green later called Dave and told him that the Charger appeared to be watching a different house down the street. To be safe, the Anglins and Green changed Green's pickup location from the halfway house itself to the corner of Center Street and Fond du Lac Avenue, a few blocks away. This, too, Green told the agents.

         At some point, the team tailing Anglin lost track of him in the Acura. Hankins, meanwhile, joined federal agents and Milwaukee police officers in unmarked cars near the new rendezvous point. At 8:40 a.m., Hankins observed Green standing on the north side of Center near Fond du Lac. Hankins contacted Green and instructed him to turn on his recorder.

         At 8:48 a.m., the Acura approached Green from the east and pulled up to the curb, with Anglin behind the wheel. Green got into the passenger seat. The Acura then turned right on Fond du Lac, heading northwest in the general direction of 74th and Capitol. Hankins and the rest of the surveillance team followed the Acura at an inconspicuous distance for several minutes, but found it difficult to stay close in rush hour traffic. Concerned about the threat to public safety that an armed robbery might pose if the Acura eluded them, Hankins asked city police to pull over the vehicle. A marked Milwaukee Police Department squad car was summoned, pulled behind the Acura, and activated its lights and sirens. Anglin did not stop; instead, he made a U-turn and headed back southeast on Fond du Lac. The Acura stopped only once a second police vehicle blocked its path. Anglin and Green were taken into custody.

         At approximately 10:15 a.m., police located Dave at Broom's house and arrested him. The Acura was impounded and searched pursuant to a warrant, yielding a nine-millimeter pistol under the passenger seat. Agents also searched the Anglins' mother's residence, finding a box of ammunition among Anglin's personal effects. Over the course of several debriefing interviews, Green admitted to having committed other robberies while at the halfway house, including the December 9 repair shop robbery, in which he implicated the Anglins.

         Anglin was initially charged only with being a felon in possession of a firearm. He moved to suppress the evidence obtained as a result of his arrest (presumably the gun found in the Acura, though he did not specify), arguing that the officers who pulled over the Acura lacked probable cause to arrest him. The magistrate judge recommended suppression, and then reaffirmed that recommendation after the district judge requested further consideration in light of Navarette v. California, 134 S.Ct. 1683 (2014). The district judge rejected the magistrate judge's recommendation, holding that there was probable cause to arrest Anglin based on Green's tip, and denied his motion.

         A grand jury returned a five-count superseding indictment against Anglin, charging him with: (1) Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); (2) discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii); (3) conspiracy to commit Hobbs Act robbery; (4) being a felon in possession of a firearm; and (5) being a felon in possession of ammunition. A jury found Anglin guilty on all counts in April 2015. His post-trial motions were denied-including, as relevant here, a renewed motion to suppress and a motion to dismiss the § 924(c) charge in light of Johnson v. United States, 135 S.Ct. 2551 (2015), which was decided after the verdict.

         At sentencing, Anglin faced a 120-month mandatory minimum term on the § 924(c) count, to be followed by consecutive sentence for the other counts, which carried an advisory guidelines range of 110 to 137 months' imprisonment. The government asked for a sentence at the high end of the guidelines range (257 months in total), pointing to Anglin's criminal record, his lack of remorse, and lasting harms to the person he shot.

         Defense counsel sought a sentence well below the guidelines range. Noting that during plea negotiations the two sides memorialized an agreement that seven to ten years would be an appropriate total sentence, he argued that the government's 257-month recommendation penalized him for going to trial. The district judge interjected, telling counsel he "can rest assured that there will be no additional punishment imposed in this case just because your client went to trial, " and stating that he does not "take into account any negotiations between the government and the defendant that do not result in a recommendation that is jointly urged upon the Court." Defense counsel next argued that, because Anglin would be 35 years old by the time the ten-year minimum term expired, the court should sentence him far below the guidelines range on the remaining counts. He explained:

The 924(c) here means that you're not punishing a 25-year-old man who doesn't get it. You're punishing a 35-year-old man. And you're punishing that 35-year-old man each additional year. And you're saying we have no hope for you at 36 you're gonna make it; at 37 you're gonna do a better job; 38 I don't know if I can trust you. ...
And when this court considers what's sufficient but not greater than necessary, what's appropriate under all the circumstances, I'm looking at a 35-year old man. I'm looking at someone who has just done 10 years in ...

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