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United States v. McMurtry

United States District Court, E.D. Wisconsin

May 22, 2017



          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).


         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 check-out 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 for 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 ...

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