United States v. Carter, Eddie R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2008
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDDIE R. CARTER,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 CR 783—Charles R. Norgle, Sr., Judge.
____________
ARGUED APRIL 7, 2005—DECIDED JUNE 10, 2005
____________
Before MANION, ROVNER, and SYKES, Circuit Judges.
MANION, Circuit Judge. A jury convicted Eddie Carter on
two counts of bank robbery, 18 U.S.C. § 2113(a), and one
count of brandishing a firearm in the commission of a bank
robbery, 18 U.S.C. § 924(c)(1)(A)(ii). The district court sen-
tenced Carter to 272 months of imprisonment. On appeal,
Carter challenges three trial-related rulings by the district
court as well as the sufficiency of the evidence against him
on one of the bank robbery counts. Carter also appeals his
sentence on each of the bank robbery counts. We affirm the
conviction in all respects. As to the sentence, we order a
2 No. 04-2008
limited remand in accordance with United States v. Paladino,
401 F.3d 471 (7th Cir. 2005).
I.
Two similar bank robberies are at the heart of this crim-
inal case. The robber’s identity and whether the same in-
dividual perpetrated each robbery were the central factual
disputes at trial.
The first robbery occurred on September 1, 2001. A
man entered the Firstar Bank located at 3610 North
Kedzie Avenue in Chicago, Illinois. Seemingly upset about
the length of the teller line, the man loudly and profanely
complained about the wait. He then impatiently left the
bank without transacting any business. Minutes later, the
same man returned, pulling out a gun and ordering every-
one to the floor. One astonished bank teller named Daniel
Hernandez did not comply. Hernandez stood staring at
the bank robber, who then pointed his gun directly at
Hernandez and walked toward Hernandez. The robber then
directly told Hernandez to get down. This time, Hernandez
complied. The robber then jumped on and over the teller
counter. Once over, the robber instructed Hernandez to
open his two teller drawers. The robber then stole $2,884
from the drawers, hurdled back over the counter, and bolted
out of the bank.
Outside the bank, Arsalan Syed witnessed a man drop-
ping cash as the man raced out of the bank. Syed then
observed the man hurry into a nearby car and speed away.
Suspicious, Syed noted the car’s license plate number and
gave it to the police. Law enforcement officials did not im-
mediately ascertain the identity of the bank robber.
The second robbery occurred on September 4, 2001. A
man entered the First American Bank located at 2001 North
No. 04-2008 3
Mannheim Road in Melrose Park, Illinois. He drew attention
to himself by loudly asking for directions. After a customer
gave him directions, he left the bank without transacting
any business. About an hour later, the same man returned,
attempting to disguise himself with a baseball cap and dark
sunglasses. Carrying a black bag, he waited in the teller line,
and, after reaching the front of the line, he approached a
bank teller named Jennifer Velazquez. He told her that he
wanted to make a withdrawal, pulled a gun out of his bag,
pointed it at her, and said, “This is an old-fashioned holdup.
Give me $10,000.”
Velazquez did as the bank robber instructed. As she began
withdrawing bundles of $20 bills, the robber turned toward
the bank’s customers and, while waving his gun, ordered
everyone down. The bundles were marked with the bank’s
name, a branch number, and Velazquez’s teller number.
After Velazquez had placed the money into his bag, the
robber demanded additional money from the adjacent
teller’s drawer. Unable to open the drawer herself,
Velazquez proceeded to locate the other teller, Rosa Marti-
nez, who was hiding in the vault in the back of the bank.
Having climbed over the teller counter, the robber went into
the vault. He pointed his gun directly at Martinez and
forced her to move from the vault out into the teller area to
open her drawer. After Martinez opened her drawer and
gave the robber its contents, the robber leaped back over the
counter and left the bank with $13,634.
Outside, the robber entered a car near the bank. As
the robber fled the scene, the bank’s manager, Manal
Ramadan, reported the robbery to a police dispatcher.
Ramadan described the robber and the getaway car. Not far
from the bank, the police soon identified a car matching
Ramadan’s description of the getaway car. After the match-
ing car had failed to stop at a red light, the police attempted
4 No. 04-2008
to pull the car over, but a chase ensued. The car eventually
smashed into a police barricade. The suspect attempted to
flee on foot, but the police apprehended him within feet of
the wreck.
At the crash scene, the police found a black bag full of
money and two guns along with a cap and sunglasses
matching the ones worn by the robber in the bank. The
police took the suspect to a police station for questioning by
FBI agents. There, the suspect—determined to be Eddie
Carter—confessed to the robbery that had just occurred
(September 4). In addition, Velazquez later identified Carter
as the September 4 robber. Testing also revealed that shoe
prints left by the robber on the teller counter matched the
size, make, and model of the shoes that Carter was wearing
at the time of his arrest.
Carter quickly became the FBI’s prime suspect in the
September 1 robbery. As with the September 4 robbery, shoe
prints left by the robber jumping on and over the teller
counter during the September 1 robbery matched the size,
make, and model of the shoes that Carter was wearing at the
time of his arrest. The FBI also determined that the license
plate number on the September 1 getaway car matched a car
owned by Carter’s half-brother. Carter was in possession of
that car from August 30 to September 3, 2001. Upon locating
the car in question, the FBI discovered a crumpled piece of
paper with the handwritten words, “Relax. This is a
stick-up. Don’t do nothing.” Further, the police found a
“crack pipe” at the scene of the September 1 bank robbery.
Laboratory analysis determined that DNA from saliva on
the pipe matched Carter’s DNA.
Additionally, the FBI asked Hernandez, an eyewitness
to the September 1 robbery, to review a six-man photo array
to identify the robber. This review took place on September
6, 2001, just days after the robbery. Hernandez did not iden-
No. 04-2008 5
tify the robber for the FBI at that juncture. On December 5,
2001, the FBI asked Hernandez to review a different six-man
photo array. This time, Hernandez immediately identified
Carter as the robber. He also indicated that he had identi-
fied Carter at the first showing but, in the wake of the
traumatic robbery, he did not say so due to his fear of
Carter.
Carter was charged with both robberies, and he went
to trial on three counts. Count one charged Carter with bank
robbery under 18 U.S.C. § 2113(a) and pertained to the
September 1 robbery. Count two also charged Carter with
bank robbery under § 2113(a) and concerned the September
4 robbery. Finally, count three charged Carter, pursuant to
18 U.S.C. § 924(c)(1)(A)(ii), with brandishing a firearm
during the September 4 robbery.
With respect to count one, Hernandez’s identification
of Carter as the September 1 robber was a key piece of the
evidence supporting the government’s case, and Carter
attempted to nullify the identification in two ways. Carter
first moved to suppress the identification as unreliable.
Carter alternatively moved for the appointment of a mem-
ory expert to explain to the jury how Hernandez could have
misidentified Carter. The district court denied each motion.
At trial, Carter testified in his own defense. His direct
testimony was in narrative form, as opposed to questions
and answers. When his narrative strayed into religious
and philosophical observations, the government objected,
and the district court instructed Carter to stick to matters
relevant to the trial. After seven such warnings went un-
heeded, the district court limited Carter’s testimony. Ac-
cording to Carter, the district court cut him off before he
testified about the September 1 robbery.
The jury convicted Carter on each count. The district
court, under the mandatory sentencing guidelines, imposed
6 No. 04-2008
several enhancements based upon judge-found facts and
sentenced Carter to 188 months on counts one and two, to be
served concurrently. On count three, the district court
sentenced Carter to 84 months, to be served consecutive to
the other sentences. The result was a total imprisonment
term of 272 months.
Carter appeals the district court’s denial of his motion to
suppress Hernandez’s identification, the denial of his mo-
tion for an expert witness, and the limitation of his testi-
mony. Further, with respect to count one, Carter challenges
the sufficiency of the evidence against him. He also appeals
his sentence on counts one and two; besides arguing that the
district court erred in applying certain enhancements, Carter
raises a Sixth Amendment challenge under United States v.
Booker, 125 S. Ct. 738 (2005). We will address each argument
in turn.
II.
A. Eyewitness Identification
Carter first argues that the district court should have
suppressed Hernandez’s identification of Carter as the
September 1 bank robber. There are two aspects to this argu-
ment. Carter first contends that the photo array shown to
Hernandez on September 6 was impermissibly suggestive
as it unfairly attracted attention to Carter’s photo. Carter
then maintains that the faulty September 6 array infected
the entire identification procedure and that, as a conse-
quence, Hernandez’s identification of Carter from the array
of photos presented on December 5 was unreliable. Carter
therefore argues that the admission of Hernandez’s identifi-
cation deprived him of a fair trial.
Review is de novo “with due deference to the [district]
court’s findings of historical fact.” United States v. Harris, 281
No. 04-2008 7
F.3d 667, 670 (7th Cir. 2002). The test for determining the
admissibility of such identifications has two steps. First, the
defendant must establish that the photo array was “unduly
suggestive.” Id. Second, if the first step is met, then the
government must establish that the identification was
nonetheless “reliable.” Id.
Carter concedes that the December 5 photo array, stand-
ing alone, is not unduly suggestive. Rather, as indicated
above, he argues that the unduly suggestive September 6
array contaminated the December 5 array. Each array con-
tained six photos arranged in two equal rows. Six is a suffi-
cient number of photos for such a line-up. See United States
v. Galati, 230 F.3d 254, 260 (7th Cir. 2000); United States v.
Moore, 115 F.3d 1348, 1360 (7th Cir. 1997); United States v.
Sleet, 54 F.3d 303, 309 (7th Cir. 1995). Further, in each array,
1
the photos were similar shots of young, black men with
similar facial hair and other similar features. See Moore, 115
F.3d at 1360; Sleet, 54 F.3d at 309.
While admitting these similarities exist, Carter neverthe-
less contends that the September 6 array unfairly attracts
attention to his photo because his photo appears in the
bottom-center position of the six photos and because Carter
is wearing a white shirt in his photo. However, beyond his
personal opinion and the array itself, Carter has not offered
any support for his conclusions. Contrary to his belief, the
array does not intrinsically prove his assertions. We thus
have no reason to believe that any one of the six photo
positions is more prominent than the other five or that a
white shirt unfairly draws attention. Carter, furthermore, is
1
In the September 6 array, each subject’s chest and head are
visible. In the December 5 array, each subject’s neck and head are
visible.
8 No. 04-2008
not the only subject wearing a white shirt. Moreover, if the
bottom-center position is an inherently pronounced position
as Carter argues, then every photo array with a suspect
pictured in the bottom-center position could be held unduly
suggestive. We see no basis for such a rule. All that said,
Carter does point to an imperfection in the September 6
array. The background of two photos is dark gray while the
background of the other four photos, including Carter’s
photo, is light gray. However, this difference does not make
the array unduly suggestive in this case. The two dark-gray
photos are not so dark as to make subjects unrecognizable,
and, even if they were, four light-gray photos still remained.
See Harris, 281 F.3d at 669-70 (finding a four-man photo
array “reasonable”). Additionally, an argument can be
made, contrary to Carter’s contention, that the darker, but
still-clear photos draw the viewer’s eye away from Carter
and to the subjects with the darker backgrounds. At bottom,
Carter has not given us a concrete reason to believe that the
light-gray shade of his photo’s background—in isolation or
in combination with his bottom-center and white-shirt
arguments—unfairly drew attention to his photo. He has
not met his burden. The September 6 array was not unduly
suggestive.
Further, the September 6 array did not taint the December
5 array. Carter complains that, in the December 5 array, he
was again placed in the bottom-center position and that he
was the only individual shown in both arrays. Again, Carter
makes these assertions without citation to any authority or
any evidence beyond the array itself. Thus, as before, his
placement in the bottom-center position does not tarnish the
array. Moreover, just because Carter appeared in the same
position twice does not change that fact when, as in this
case, there is a substantial passage of time between show-
ings, i.e., three months. Furthermore, as we have previously
No. 04-2008 9
concluded, “there is nothing per se impermissible about
placing the same suspect in two different identification
procedures” especially when there is a “substantial passage
of time” between the two showings. Id. at 670-71 (“[A]fter
such a substantial passage of time, it is unlikely that [the
eyewitnesses] was influenced by the earlier photograph, let
alone that it led to misidentification.”) (six months). Carter
has failed to show that the photo identification procedure in
this case was unduly suggestive. The district court correctly
admitted the identification at trial.
Although we need not address the second step, we briefly
observe that the record demonstrates that the identification
was reliable. Hernandez saw Carter twice at the bank. He
first saw Carter when Carter made a scene about waiting in
line (apparently casing the bank). He also saw Carter during
the robbery, at which time Hernandez stared directly at
Carter as Carter approached and spoke to him. Hernandez
had more than a sufficient opportunity to view Carter and,
for a period, had his attention squarely fixed on Carter.
These important factors show that, under the totality of the
circumstances, the identification was reliable. See Moore, 115
F.3d at 1360-61.
B. Expert Witness
Carter further contends that the district court abused its
discretion in denying his motion for the appointment of an
expert regarding the reliability of Hernandez’s eyewitness
identification. Although Carter was financially eligible for
such an appointment under 18 U.S.C. § 3006A(e)(1), the
district court determined that the appointment was unnec-
essary because the expert testimony would be inadmissible
under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579
(1993), and Federal Rule of Evidence 702. Specifically,
10 No. 04-2008
the district court held that the proposed testimony from
Carter’s requested expert, psychologist Geoffrey Loftus,
would not aid the jury in its determination and, further, that
any such testimony might actually confuse, mislead, or
unduly influence the jury. Carter does not argue that the
district court improperly applied the Daubert framework,
and the government does not and did not challenge Loftus’s
qualifications; therefore, our review is only for abuse of
discretion, and our focus is only on the usefulness of
the testimony, i.e., whether it would actually assist the jury
in understanding or determining a fact in issue. See
United States v. Hall, 165 F.3d 1095, 1101-03 (7th Cir. 1999);
Fed. R. Evid. 702; see also United States v. Welch, 368 F.3d 970,
973 (7th Cir. 2004); United States v. Daniels, 64 F.3d 311, 315
(7th Cir. 1995); Fed. R. Evid. 403.
Carter wanted Loftus to inform the jury that an eye-
witness’s memory can sometimes be inaccurate. Loftus
planned to opine about factors that could affect memory,
including the circumstances surrounding the event in ques-
tion, the amount of stress on the eyewitness, the amount of
attention paid by the witness, and the law enforcement
procedures used to elicit the witness’s memory. In general,
however, jurors understand that memory can be less than
perfect. See Hall, 165 F.3d at 1105 (“the hazards of eyewit-
ness identification are ‘well within the ken of most lay
jurors’ ”) (quoting United States v. Larkin, 978 F.2d 964, 971
(7th Cir. 1992)). Such awareness is even greater when po-
tential problems in eyewitness identifications are brought to
the jury’s attention through cautionary instructions. See
United States v. Crotteau, 218 F.3d 826, 832-33 (7th Cir. 2000).
Furthermore, “the credibility of eyewitness testimony is
generally not an appropriate subject matter for expert testi-
mony because it influences a critical function of the jury—
determining the credibility of witnesses.” Hall, 165 F.3d at
No. 04-2008 11
1107. Consequently, there is a “long line of Seventh Circuit
cases holding that district courts did not commit abuses of
discretion by excluding expert testimony regarding the
reliability of eyewitness identifications.” Welch, 368 F.3d at
973 (citing Crotteau, 218 F.3d at 833; Hall, 165 F.3d at 1105;
Daniels, 64 F.3d at 315; Larkin, 978 F.2d at 971; United States
v. Curry, 977 F.2d 1042, 1052 (7th Cir. 1992)). While recog-
nizing this line of cases, the district court correctly realized
that “expert testimony regarding eyewitness identification,
memory, and perception is not per se unhelpful.” Welch, 368
F.3d at 975; see also Hall, 165 F.3d at 1104-05 (citing Curry,
977 F.2d at 1051-52). Here, the district court exercised
discretion by evaluating the facts and circumstances of this
particular case in light of our case law and, further, did not
abuse its discretion in concluding that this case did not
present “an unusual or compelling situation in which the
aid of an expert witness is required.”
In addition, the district court’s decision was bolstered
by three “additional considerations.” Hall, 165 F.3d at 1107.
First, Hernandez was cross-examined on his ability to per-
ceive, remember, and identify Carter as the bank robber. See
Welch, 368 F.3d at 974-75. Second, the government had
significant additional evidence (e.g., getaway car, shoe
print, crack pipe DNA) to corroborate Hernandez’s identifi-
cation. See Hall, 165 F.3d at 1107-08 (“[T]he existence of
corroborating evidence undercuts the need, except in the
most compelling cases, for expert testimony on eyewitness
identifications.”). Third, the district court twice cautioned
the jurors, through instructions, about assessing witnesses
and the risks associated with eyewitness identifications. See
Crotteau, 218 F.3d at 832-33. These developments—es-
12 No. 04-2008
2
pecially the jury instructions, which effectively gave the
jury the same key points on eyewitness identifications that
the expert would have presented to them—provide further
support for the district court’s conclusion that the proposed
expert testimony would not assist the jury. The district court
did not abuse its discretion.
C. Defendant’s Testimony
Carter next protests the district court’s decision to limit his
testimony at trial. Carter testified in his own defense
by reading, over the government’s objection, self-styled
“affidavits” into the record. At first, Carter directed this
narrative testimony toward undermining his confession
to the September 4 robbery, asserting that his extreme in-
toxication at the time resulted in a false confession. When he
reached his fourth “affidavit,” his narrative turned to his
religious and philosophical beliefs. The government raised
a relevancy objection, which the district court sustained. The
district court then directed Carter to stick to matters rele-
vant to the trial. Carter ignored the order and returned to
2
The district court’s two instructions followed the exact lan-
guage of our pattern instructions 1.03 and 3.08. See Crotteau, 218
F.3d at 832-33. Instruction 3.08 bears repeating here: “You have
heard testimony of an identification of a person. Identification
testimony is an expression of belief or impression by the witness.
You should consider whether, or to what extent, the witness had
the ability and the opportunity to observe the person at the time
of the offense and to make a reliable identification later. You
should also consider the circumstances under which the witness
later made the identification. The government has the burden of
proving beyond a reasonable doubt that the defendant was the
person who committed the crime charged.” Seventh Circuit
Pattern Criminal Jury Instructions 3.08 (1999).
No. 04-2008 13
his commentary. Once seven such warnings were disre-
garded, the district court, over Carter’s protestations,
imposed a time limit on the remainder of Carter’s testimony
3
pursuant to Federal Rule of Evidence 611(a). The length of
the time limit is not discernable from the trial transcript, but
Carter’s entire direct testimony lasted approximately ninety
4
minutes.
Supposedly, Carter was eventually going to say some-
thing about the September 1 robbery. Carter therefore com-
plains that the district court violated his constitutional right
to testify in his own defense. See United States v. Manjarrez,
258 F.3d 618, 623 (7th Cir. 2001). When an evidentiary ruling
“directly implicate[s]” a defendant’s constitutional right,
United States v. Hernandez, 84 F.3d 931, 933 (7th Cir. 1996),
we review de novo the question of whether the “evidentiary
ruling . . . had the effect of infringing” that right while still
“taking into account the permissible scope of the [district]
court’s discretion” in evidentiary matters, United States v.
Wilson, 307 F.3d 596, 599 (7th Cir. 2002).
Simply stated, a criminal defendant does not have an
absolute, unrestrainable right to spew irrelevant—and thus
3
Fed. R. Evid. 611(a): “The court shall exercise reasonable con-
trol over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and pre-
sentation effective for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.”
4
Carter also testified on cross-examination, but he continually
avoided the government’s questions by repeating the response,
“I stand on my affidavit.” Cf. United States v. Bartelho, 129 F.3d
663, 672-74 (1st Cir. 1997) (defendant’s entire testimony stricken
based on his refusal to answer government’s questions on cross-
examination).
14 No. 04-2008
inadmissible—testimony from the witness stand. See
United States v. Lea, 249 F.3d 632, 642 (7th Cir. 2001)
(“The accused does not have an unfettered right to offer
testimony that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.”) (quoting
Taylor v. Illinois, 484 U.S. 400, 410 (1988)); Fed. R. Evid. 402
(“Evidence which is not relevant is not admissible.”); see also
United States v. Moreno, 102 F.3d 994, 999 (9th Cir. 1996); cf.
United States v. Pless, 982 F.2d 1118, 1123 (7th Cir. 1992)
(testimony may be “in a narrative form as long as it stays
within the bounds of pertinency and materiality”) (quoting
United States v. Garcia, 625 F.2d 162, 169 (7th Cir. 1980)).
Furthermore, district courts have the authority to take
appropriate measures to control a “stubbornly defiant”
defendant. United States v. Brock, 159 F.3d 1077, 1079 (7th
Cir. 1998) (quoting Illinois v. Allen, 397 U.S. 337, 343 (1970)).
Unquestionably, Carter’s venting of his religious and philo-
sophical views to the jury was irrelevant. Further, Carter
provided no reasonable indication that he would end his
rant and resume testifying about relevant matters such as
the September 1 robbery. The generously patient district
court gave Carter seven warnings to stay on point, yet
Carter doggedly refused. Had Carter wished to discuss the
September 1 robbery, he had ample opportunity. Con-
sequently, Carter can assign fault to no one but himself. In
sum, the district court did not err in limiting Carter’s trial
testimony because Carter flagrantly and incessantly ignored
the district court’s repeated orders to avoid irrelevant mat-
ters.
D. Sufficient Evidence
Carter also challenges the sufficiency of the evidence pre-
sented by the government for his conviction on count one,
No. 04-2008 15
the September 1 robbery. The essential question in such a
challenge is whether, in viewing the evidence in the light
most favorable to the government, “any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Arocho, 305 F.3d 627,
639 (7th Cir. 2002). “We neither reweigh the evidence nor
assess the credibility of the witnesses.” Id. In short, we will
overturn a conviction only when “the record contains no
evidence, regardless of how it is weighed, from which a jury
could find guilt beyond a reasonable doubt.” Id. (internal
quotation omitted).
To have convicted Carter of bank robbery under 18 U.S.C.
§ 2113(a) for the bank robbery alleged in count one, the jury
was required to find beyond a reasonable doubt that (1)
Carter took from the person or presence of another money
belonging to Firstar Bank, (2) the bank was federally
insured, and (3) Carter acted to take such money by force
and violence or by intimidation. See Seventh Circuit Pattern
Criminal Jury Instructions 18 U.S.C. § 2113 (1999). The
second element concerning federal jurisdiction is not in
dispute. Carter attacks the first and third elements only by
arguing that the government’s evidence failed to show that
he was the bank robber.
The government linked Carter to the September 1 robbery
in five ways. First, Hernandez, an eyewitness, identified
Carter as the robber. Second, the license plate number on
the September 1 getaway car matched a car lent to Carter by
a family member from August 30 to September 3. Third, in
the car, a crumpled note was present that stated: “Relax, this
is a stick-up. Don’t do nothing.” Fourth, DNA from saliva
on a crack pipe found at the bank matched Carter’s DNA.
Fifth, shoe prints left by the robber jumping on the teller
counter matched the size, make, and model of the shoes that
Carter was wearing at the time of his arrest. In response,
16 No. 04-2008
Carter contends that Hernandez misidentified him; that the
getaway car was tied to family members who were initially
suspects in the robbery but who lied to the authorities about
Carter; that none of the (testable) fingerprints recovered
from the bank and the car matched Carter’s prints; that the
robber did not wear gloves; that, besides Carter’s DNA, at
least one other person’s DNA was found on the pipe; and
that, as the shoes in question were mass produced, other
individuals also possessed the same make, model, and size
of the shoes that left the prints at the bank. Carter presented
these contentions of innocence to the jury, and the jury
rejected them. Carter’s approach on appeal invites us to
reweigh the evidence. That is not our role. Rather, we must
take the evidence in a light most favorable to the govern-
ment and then determine if there is evidence to convict. In
that light, there is more than enough evidence of guilt in this
case to find, beyond a reasonable doubt, that Carter was the
September 1 robber. Carter’s conviction for the bank
robbery charged in count one is accordingly affirmed.
III.
As for sentencing, Carter contests his sentence on counts
one and two. He does not appeal count three in any respect.
Under the mandatory guidelines, the district court formu-
lated Carter’s sentence on count one by starting with the
base offense level for robbery, twenty levels, and adding
two levels for taking property from a financial institution,
four levels for using a dangerous weapon, and two levels
for obstructing justice. See U.S.S.G. §§ 2B3.1(a), (b)(1),
(b)(2)(D), 3C1.1 (2003). Thus, the September 1 robbery
carried an adjusted offense level of 28. For count two, the
district court again began with the twenty-level base and
added two levels for the financial institution, two levels for
physically restraining a person, one level for stealing more
No. 04-2008 17
than $10,000, two levels for obstructing justice, and two
levels for recklessly endangering others in the course of
fleeing from a law enforcement officer. See U.S.S.G.
§§ 2B3.1(a), 2B3.1(b)(1), (b)(4)(B), (b)(7)(B), 3C1.1, 3C1.2
(2003). The September 4 robbery thus resulted in an ad-
justed offense level of 29. Then, pursuant to the grouping
procedures for multiple counts, the district court applied
U.S.S.G. § 3D1.4 and arrived at a combined adjusted offense
level of 31 for count one and count two, which would be
served concurrently. Level 31, with Carter’s category VI
criminal history, translated into a sentencing range of 188-
235 months, and the district court sentenced at the bottom
of that range.
On appeal, in addition to attacking two enhancements,
physical restraint in count two and obstruction of justice in
each count, Carter raises what is now a Booker challenge to
his sentence under the Sixth Amendment. United States v.
Booker, 125 S. Ct. 738 (2005). Under Booker, the formerly
mandatory federal sentencing guidelines have become
advisory. See id. at 767. We will address Carter’s Booker ar-
gument first.
A. Booker
According to Booker, a sentence violates the Sixth
Amendment when it exceeds the maximum sentence au-
thorized through the facts established by a jury verdict or a
guilty plea or by facts otherwise admitted to by the defen-
dant. 125 S. Ct. at 756. Here, the jury’s bank robbery verdicts
authorized the base offense level and also permitted the
inclusion of the financial institution enhancement in the
calculation. Additionally, at sentencing, Carter conceded the
applicability of the dangerous weapon enhancement in
count one. As to the rest, they were imposed as the result of
18 No. 04-2008
judge-found facts. Carter’s sentence thus runs afoul of the
Sixth Amendment, as interpreted by Booker, because, under
the mandatory guidelines, the sentence exceeded the
maximum sentence authorized by the facts admitted by
Carter or established by the jury’s verdicts. 125 S. Ct. at 756.
Carter, however, did not raise this Sixth Amendment
argument before the district court. The matter is therefore
governed by the plain-error standard of review and our
recent decision in United States v. Paladino, 401 F.3d 471
(7th Cir. 2005). Pursuant to Paladino, a limited remand is
required in this case to ascertain whether the Sixth
Amendment error was prejudicial. See id. at 483-85. Spe-
cifically, under the Paladino procedure, we will retain
jurisdiction over the appeal while ordering “a limited re-
mand to permit the sentencing judge to determine whether
he would (if required to resentence) reimpose his original
sentence.” Id. at 484.
To assist the district court in its deliberations on limited
remand, we next turn to Carter’s contentions that the district
court misapplied the guidelines, which, although no longer
mandatory, must still be consulted. See Booker, 125 S. Ct. at
767; United States v. Parra, 402 F.3d 752, 766-67 (7th Cir.
2005). Again, Carter contests the physical restraint en-
hancement in count two and the obstruction of justice
enhancements in each count.
B. Physical Restraint
The district court included the physical restraint enhance-
ment in its sentencing decision because Carter, to facilitate
the September 4 robbery, forced teller Rosa Martinez from
the bank’s vault to her teller drawer at the point of a gun.
Section 2B3.1(b)(4) permits a two-level increase when “any
person was physically restrained to facilitate commission of
No. 04-2008 19
the offense.” Application Note 1(K) of § 1B1.1 further
provides that “ ‘[p]hysical restraint’ means the forcible
restraint of the victim such as by being tied, bound, or
locked up.” In United States v. Doubet, we stated that the
qualifying phrase “such as” in this definition indicates that
the words “tied, bound, or locked up” “are listed by way of
example rather than limitation.” 969 F.2d 341, 346 (7th Cir.
1992) (quoting United States v. Stokley, 881 F.2d 114, 116 (4th
Cir. 1989)).
Carter opposes the enhancement on account of the lack of
bodily contact with or confinement of Martinez. The issue,
however, is physical or forcible restraint. Such restraint is
not present, as Carter contends and as we observed in
Doubet, when an armed robber simply orders his victims not
to move during an armed robbery. 969 F.2d at 346. For if it
were, the enhancement would be rendered meaningless as
it would apply in virtually every armed robbery—“a threat
not to move is implicit in the very nature of armed rob-
bery.” Id. Accordingly, for the enhancement to apply,
something more is required, and, here, we have something
more. Carter, in the immediate presence of Martinez,
focused his gun on her and then, sustaining that focus,
moved her out of the bank’s vault to her drawer against her
will. The sustained focus of the weapon on the victim
coupled with the compelled movement of the victim to
another area constitutes sufficient forcible restraint to
warrant the enhancement. As we held in Doubet, “[f]orce
is not limited to physical force, but may also encompass
the operation of circumstances that permit no alternative
to compliance.” Id. at 347 (quotation omitted). Here, with
Carter’s gun pointed at her from only inches away,
Martinez had no alternative but to comply with his instruc-
tions to move. Carter’s conduct was thus more culpable
than a robber who does not forcibly restrain a victim to
20 No. 04-2008
facilitate his offense, see id.; therefore, the district court
correctly took Carter’s restraint of Martinez into account in
sentencing Carter.
C. Obstructing Justice
Carter obstructed justice, according to the district court,
by committing perjury during his trial testimony, specifi-
cally, by lying about his confession and its surrounding
circumstances. For purposes of the two-level enhancement
in § 3C1.1, a defendant obstructs justice by committing
perjury if the defendant willingly intends to provide false
testimony under oath on a material issue. See United States
v. Saunders, 359 F.3d 874, 878-79 (7th Cir. 2004).
Carter’s confession was a material piece of evidence
that went to his guilt on the bank robbery charge in count
two, and Carter used his trial testimony to undermine that
evidence. As mentioned above, Carter began his narrative
testimony by asserting that his inebriated state at the time
of his questioning resulted in a bogus confession. According
to Carter, he was “so totally blown away” by a “three-day”
“illegal drugs and alcohol” “binge” that nothing he told his
interrogators could have been truthful. Carter testified that
he said what he said “only to put a stop to all
the questioning” because he “was totally wasted” and
wanted to get “away long enough . . . to reach a safe haven
and calm down.” Carter’s account is contradicted by FBI
agent Bruce Harford’s testimony. While Carter declared that
he was “hallucinating,” “stoned out of [his] mind,” “thor-
oughly confused,” and unable to “understand anything of
the line of questioning that was going on,” Harford testified
that Carter was coherent, responsive, and aware of what
was being asked. Carter further averred that the agents
directed and manufactured his confession. Harford, how-
No. 04-2008 21
ever, testified that, after about a forty-five minute question-
and-answer session in which Carter admitted many aspects
of the September 4 robbery, he asked Carter if Carter was
willing to prepare a signed statement, and, when Carter
agreed, he gave Carter a blank piece of paper and pen,
which Carter used to author his confession. Also, Carter
denied signing his handwritten confession, but Harford
testified that he witnessed Carter’s signature on the confes-
sion. The district court found Harford to be truthful and
Carter untruthful, and, on this record, the district court did
not err in including an obstruction enhancement on count
two. See United States v. Hall, 101 F.3d 1174, 1178-79 (7th Cir.
1996).
The obstruction enhancement is more problematic on
count one, the September 1 robbery, because Carter’s con-
fession only related to the September 4 robbery. The govern-
ment attempts to stretch Carter’s claims about his three-day
binge to the September 1 robbery, but the record does not
indicate that he somehow lied on the witness stand about
the September 1 robbery. He simply did not discuss it.
Nonetheless, applying the obstruction enhancement in
count one was a harmless error. See Fed. R. Crim. P. 52(a).
As indicated above, counts one and two were grouped for
guideline purposes under § 3D1.4. Recall that the adjusted
offense levels for counts one and two were 28 and 29,
respectively. Under the intricacies of § 3D1.4, count one’s
offense level would have had to be 24 or lower to make a
difference in the combined offense level and the applicable
guideline range. Since the obstruction error was only a two-
level error (i.e., the offense level would have been 26), it was
harmless because it had no effect on Carter’s sentencing
range and sentence at the bottom of that range. See United
States v. Woods, 233 F.3d 482, 485-86 n.5 (7th Cir. 2000).
22 No. 04-2008
IV.
We AFFIRM Carter’s conviction in all respects. The district
court correctly refrained from suppressing the contested
eyewitness identification. The district court did not abuse its
discretion in rejecting Carter’s memory expert. The district
court did not err in limiting Carter’s trial testimony, and the
government presented sufficient evidence to convict Carter
on the bank robbery charged in count one. As to sentencing,
the district court correctly included the physical restraint
and obstruction of justice enhancements in count two, and
the inclusion of the obstruction enhancement in count one
was harmless. Nonetheless, given Booker, we order a
LIMITED REMAND to the district court for further proceedings
consistent with Paladino and this opinion. Pending the
outcome of the limited remand, we retain jurisdiction over
this appeal.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-10-05