United States v. Dorsey, Tommie ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-3163
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TOMMIE DORSEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 CR 285--George M. Marovich, Judge.
Argued February 7, 2000--Decided April 12, 2000
Before KANNE, ROVNER, and EVANS, Circuit Judges.
ROVNER, Circuit Judge. In 1994, Tommie Dorsey
was a 44-year-old married man with children, who
had managed an auto repair shop for the last
seven years, owned a split-level house in a
middle class neighborhood, and had no history of
crime. For some reason, at that point in his life
he decided to participate in a criminal endeavor
that ultimately resulted in his guilty plea on
four counts involving robbery and attempted
burglary. His participation began when he had the
misfortune to answer the phone one day at
Precision Tune, the auto repair shop that he
managed. The caller was Lisa Calloway Tate, and
she was calling to speak with another person at
the store. The record does not indicate whether
that other person was unavailable at the time,
but for some reason his phone conversation with
Tate lasted longer than one would expect under
the circumstances, because his contact with her
did not end there. He apparently spoke with her
a number of times after that, and she eventually
revealed to him that she was seeking to obtain
stolen computers from Chicago to sell in her
unlawful computer equipment distribution
operation in California. As strange as it seems
that she would reveal that to a person whom she
had met only fortuitously by phone, it is perhaps
even more unbelievable that Dorsey then agreed to
help her obtain stolen computers.
According to his plea agreement, Dorsey
recruited others to help accomplish that goal,
and they discussed robbing warehouses where
computers were stored. Dorsey agreed to
contribute money towards the first robbery, and
supplied his accomplices with $2500. He knew that
the money would be used to buy guns and equipment
for the robbery, but did not know any other
details of the robbery. His accomplices planned
the first robbery, and decided to rob a UPS
truck. They hijacked a UPS truck, bound the
driver with duct tape and put him in the trailer,
and drove the truck to the far south side of
Chicago. There, they disengaged the trailer,
moved the driver to the passenger side of the
tractor, and drove to Summit, Illinois, where
they released him. He was able to escape his
bindings and contact the police. The police then
staked out the trailer, and arrested one of the
offenders, Edwin Evans, when he came back to
unload the computers from it. With information
obtained from Evans, they arrested two other
people, Wardella Reese and Tony Scott, for the
incident.
Scott decided to cooperate with the FBI, and
through that contact the agents became aware of
a second robbery that Tate was planning with
Dorsey, involving a warehouse in which millions
of dollars worth of computers were stored. Dorsey
had recruited a number of people to carry out the
plan, including an employee of the company
operating the warehouse. According to the plan,
the participants would enter the warehouse, "take
out" the guard, and then use a forklift to load
a tractor-trailer with a number of skids of
laptop computers. They were equipped with ski
masks and with two black-jacks and duct tape for
subduing the guard. On the evening of May 3,
1995, the would-be robbers set out to accomplish
the robbery, but returned without success because
they were unable to find the warehouse.
Undaunted, they returned the next evening, but
were foiled by a locked door. They then drove
around for a while, and returned for another
attempt. At that point, the FBI, which was aware
of the scheme and was waiting for them,
approached the van to arrest them. All of the
participants attempted to flee, but all except
Harry Banks were apprehended and arrested
immediately. Banks was subsequently arrested, as
was Dorsey.
Dorsey expressed contrition and acceptance of
responsibility almost immediately, and assisted
law enforcement in the investigation and
apprehension of the participants in the scheme.
He was charged with four counts arising from the
two robberies. At sentencing, the court applied
the guideline based upon the most serious count,
which involved the UPS truck hijacking and
robbery. His sentence was cut in half as a result
of his cooperation with law enforcement, and
ultimately he was sentenced to 43 months
imprisonment and two years supervised release for
his part in the offenses. On appeal, he
challenges two sentence enhancements that were
applied to him under the guidelines, and argues
that his attorney was ineffective for failing to
properly challenge those enhancements at
sentencing.
Dorsey argues that the court erred in applying
a five-point increase in the offense level under
sec. 2B3.1(b)(2)(C) because a firearm was
brandished, displayed or possessed in the UPS
robbery, and in imposing a two-point increase
under sec. 2B3.1(b)(4)(B) because a person was
physically restrained to facilitate commission of
the UPS robbery. See 1994 Guidelines sec.
2B3.1(b)(2)(C) & (4)(B). The gist of his argument
appears to be that he was not involved in the UPS
robbery, and was purposefully kept ignorant of it
by the other offenders. Therefore, he contends
that he should not be held accountable for the
behavior of participants in that robbery.
Section 1B1.3(a) of the 1994 Guidelines
clarifies the type of conduct that is relevant to
determine Dorsey’s offense level under Chapter
Two. That section provides that a court may
consider
(1)(A) all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured,
or willfully caused by the defendant; and
(B) in the case of jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in concert
with others, whether or not charged as a
conspiracy), all reasonably foreseeable acts and
omissions of others in furtherance of the jointly
undertaken criminal activity, that occurred
during the commission of the offense of
conviction, in preparation for that offense, or
in the course of attempting to avoid detection or
responsibility for that offense;
Dorsey was convicted of aiding and abetting the
UPS robbery. That alone, however, is not
dispositive of whether the increases for firearm
possession and physical restraint of a person are
appropriate. As Application Note 1 makes clear,
"the principles and limits of sentencing
accountability are not the same as the principles
and limits of criminal accountability." The focus
under sec. 1B1.3(a)(1) is on the specific acts or
omissions that affect the guideline range, not on
whether the defendant is criminally liable for
the offense as a whole. See sec. 1B1.3
Application Note 1. Therefore, the proper focus
is not whether Dorsey aided and abetted in the
UPS robbery as a whole, but whether the firearm
possession and physical restraint were within the
scope of the criminal activity that he jointly
undertook, see United States v. Swiney, 2000 WL
149457 *4 (6th Cir. Feb. 14, 2000) (proper focus
is on the scope of the specific conduct and
objectives embraced by the defendant’s agreement,
not the scope of the offense as a whole), or
whether those acts were a reasonably foreseeable
part of a joint criminal endeavor.
Dorsey argues that he cannot be held
responsible for those acts, because he was
unaware of the plans to rob the UPS truck before
it happened, and his accomplices purposefully
kept him in the dark about it. At times, Dorsey
appears to deny any responsibility whatsoever for
the UPS robbery. The obvious problem with that
argument is that he pled guilty to aiding and
abetting the UPS robbery. At the plea hearing,
the government recited the factual basis for the
plea, including that "Mr. Dorsey has acknowledged
that he supplied $2500 to the woman here in
Chicago and that he knew the money was going to
be used for the purchase of guns and other
equipment to be used in the first robbery." The
government’s further statements at the plea
hearing made clear that the "first robbery" was
the robbery of the UPS truck. Dorsey now denies
any such knowledge, but he was asked by the court
whether he had any objections to the government’s
characterization of the facts. In response,
Dorsey raised a question about whether a
gathering with his accomplices should have been
called a "meeting," as the government had done,
when it was not really planned. If Dorsey would
raise the rather insignificant question of
whether "meeting" is the correct word to use, it
is inconceivable that he would not mention the
much more serious concern of whether he knew he
was supplying money to purchase guns and other
equipment for the UPS robbery. Moreover, those
same allegations were set forth in the plea
agreement, which Dorsey helped prepare. At best,
the evidence indicates that Dorsey did not know
details of the first robbery. He is responsible
for the firearm possession and the physical
restraint as long as they were reasonably
foreseeable acts by his joint participants in the
robbery scheme. The record amply supports the
district court’s determination that both acts
were reasonably foreseeable. Dorsey supplied
money that was to be used, in part, for obtaining
a gun, and thus the firearm possession was
certainly foreseeable. In fact, Dorsey’s act of
supplying the money for the firearm falls within
sec. 1B1.3(a)(1)(A) as aiding in the possession
of the firearm, and does not require resort to
the reasonable foreseeability element of sec.
1B1.3(a)(1)(B). Moreover, Dorsey admittedly aided
in the robbery to obtain computer equipment in
which a firearm was involved. It is reasonably
foreseeable that to accomplish that robbery
objective, a person might have to be physically
restrained. In fact, Dorsey planned for that
contingency in designing the second robbery.
Thus, the district court’s findings that the
firearm possession and the physical restraint
were foreseeable is not erroneous. See e.g.
United States v. Corral-Ibarra, 25 F.3d 430, 438
(7th Cir. 1994) (reasonable foreseeability
includes illegal activities in which defendant
has a remote involvement).
Finally, Dorsey argues that his counsel at
sentencing was ineffective for not challenging
the increase for firearm possession, and for not
orally arguing against the increase for physical
restraint. We note that counsel did submit
written objections to the court concerning a
number of proposed increases under the
Guidelines, and in fact was successful in some of
those objections. In general, it is not
ineffective assistance for an attorney to raise
written objections and, when a court has
indicated its familiarity with those objections,
to refrain from repeating them orally in court.
Most district court judges would have little
tolerance for such repetition. In any case, we
need not reach Dorsey’s ineffectiveness claim. As
we have already noted, the sentencing court
committed no error in finding Dorsey responsible
for the firearm possession and the physical
restraint of the driver. Accordingly, he could
not show that counsel’s performance prejudiced
him at sentencing. See Strickland v. Washington,
466 U.S. 668, 687-88 (1984); United States v.
Godwin, 202 F.3d 969, 973-74 (7th Cir. 2000).
For the above reasons, the decision of the
district court is affirmed.