United States District Court, E.D. Wisconsin
STATEMENT OF REASON MEMORANDUM
ADELMAN District Judge
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).
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).
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
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
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).
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 ...