United States v. Robert Fox ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2019
Decided November 6, 2019
Before
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-3087
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern District
of Indiana, Indianapolis Division.
v. No. 1:15CR00025-001
ROBERT E. FOX, Jane Magnus-Stinson,
Defendant-Appellant. Chief Judge.
ORDER
A jury found Robert Fox guilty of two counts of Hobbs Act robbery, 18 U.S.C.
§ 1951(a), and two counts of brandishing a firearm in furtherance of a crime of violence,
18 U.S.C. § 924(c)(1)(A)(ii). In Fox’s first appeal, we affirmed his conviction but vacated
his sentence and remanded for resentencing in light of Dean v. United States, 137 S. Ct.
1170 (2017). United States v. Fox, 878 F.3d 574, 580 (7th Cir. 2017), cert. denied, 138 S. Ct.
1603 (2018), and reh’g denied, 138 S. Ct. 2617 (2018). On remand, the district court
imposed a lower sentence, but Fox filed a notice of appeal.
Fox’s appointed counsel asserts that the appeal is frivolous and moves to
withdraw under Anders v. California, 386 U.S. 738 (1967). Counsel’s brief explains the
No. 18-3087 Page 2
nature of the case and addresses potential issues that an appeal of this kind might
involve. Because the analysis in counsel’s brief appears thorough, we limit our review
to the subjects that counsel discusses and those that Fox raises in response. See CIR. R.
51(b); United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014). Fox does not oppose his
attorney’s request to withdraw, but he believes that he could raise nonfrivolous
arguments with different counsel or pro se. In reviewing the potential arguments,
however, we identify no nonfrivolous issues to appeal.
At his original sentencing, Fox faced mandatory minimum sentences of
84 months’ and 300 months’ imprisonment for the two brandishing counts under
§ 924(c), running consecutive to the sentence for his robbery convictions—each carrying
a sentencing guidelines range of 63 to 78 months’ imprisonment. The district court
sentenced Fox to a total of 435 months’ imprisonment—concurrent terms of 51 months
for each robbery count, and consecutive terms of 84 and 300 months for the two § 924(c)
convictions. The court also sentenced Fox to three years’ supervised release.
Fox appealed, challenging his conviction on several grounds and arguing that he
should be resentenced in light of the Supreme Court’s decision in Dean. In that case, the
Supreme Court clarified that under 18 U.S.C. § 3553, district courts have discretion to
consider the length of a defendant’s mandatory minimum sentence under § 924(c) when
calculating an appropriate sentence for the predicate offense(s). 137 S. Ct. at 1176–78.
We affirmed Fox’s convictions but remanded for resentencing.
On remand, Fox filed a supplemental sentencing memorandum, arguing that the
mandatory minimum sentence of 32 years’ imprisonment for the two brandishing
charges was sufficient to meet the aims of § 3553(a), and therefore no prison time
should be imposed for the robbery convictions. Fox emphasized that he did not
physically harm anyone, and that he stole a relatively small sum of $282.46. The court
accepted a revised presentence investigation report, which calculated the same
guidelines range as the one applied at Fox’s initial sentencing. The district court
resentenced Fox to the statutory minimum sentences of 84 months’ and 300 months’
imprisonment on the § 924(c) charges. But it imposed concurrent terms of 12 months
and one day for each robbery. The district court also re-imposed three years of
supervised release.
Counsel first considers whether Fox can challenge his conviction and properly
concludes that doing so would be frivolous because Fox already appealed his
conviction, and we affirmed it. The mandate rule and the law of the case doctrine
prohibit a district court from revisiting on remand any issues expressly or impliedly
No. 18-3087 Page 3
decided on appeal. See United States v. Polland, 56 F.3d 776, 777, 779 (7th Cir. 1995);
see also United States v. Adams, 746 F.3d 734, 744 (7th Cir. 2014). Because only
resentencing was within the scope of the mandate, Fox could not challenge his
conviction again.
Nor can Fox raise any issue that could have been raised in his initial appeal, as
those issues have been waived. See United States v. Whitlow, 740 F.3d 433, 438 (7th Cir.
2014); United States v. Jackson, 186 F.3d 836, 838 (7th Cir. 1999). Therefore, to the extent
Fox invokes United States v. Davis, 139 S. Ct. 2319 (2019), to challenge his conviction
(presumably on the ground that § 924(c)(3)(B)’s residual clause is unconstitutionally
vague, see id. at 2336), he could not raise that argument in this appeal. When Fox first
appealed, Davis had not been decided, but the argument was available. See United States
v. Cardena, 842 F.3d 959, 995–96 (7th Cir. 2016). In any case, Fox’s argument would be
frivolous: we have confirmed that a Hobbs Act robbery is a crime of violence under the
still-valid “elements clause” of § 924(c). See Haynes v. United States, 936 F.3d 683, 690
(7th Cir. 2019); Fox, 878 F.3d at 579.
The only potential arguments available to Fox on appeal pertain to his
resentencing. Counsel first concludes, correctly, that any challenge to Fox’s guidelines
range would be frivolous. Fox would be barred from challenging the guidelines
calculations in this appeal because he did not challenge the identical guidelines ranges
in his first appeal or at resentencing. See United States v. Sumner, 325 F.3d 884, 891–92
(7th Cir. 2003). We also agree with counsel that it would be frivolous to argue that the
district court made any other procedural errors, such as “incorrectly calculating the
guidelines range, failing to consider the section 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to explain adequately the chosen sentence.”
United States v. Griffith, 913 F.3d 683, 687 (7th Cir. 2019).
Next, counsel concludes that challenging the substantive reasonableness of Fox’s
sentence would be frivolous. We presume that a below-guidelines sentence is
reasonable. See United States v. Jackson, 598 F.3d 340, 345 (7th Cir. 2010). And we agree
with counsel that Fox could not overcome that presumption. During the resentencing
hearing, the district court addressed the nature and circumstances of the offense (the
seriousness of threatening victims at gunpoint) and Fox’s history and characteristics (his
difficult upbringing, his conduct in prison, and that he was on parole when he
committed the robberies). The court also exercised its discretion under Dean to consider
Fox’s statutory minimum sentences under § 924(c), explaining that although a
within-guidelines sentence would be “piling on,” imposing no punishment for the
No. 18-3087 Page 4
robberies would be inappropriate. The court then imposed 12 months and one day on
each count of robbery (to be served concurrently). This sentence was 51 months below
the low end of the guidelines range (63 to 78 months), and 39 months below the
previously imposed sentence.
Fox raises two last potential arguments. First, he seeks to modify his sentence
under 18 U.S.C. § 3582(c)(2). That request is beyond the scope of this direct appeal. We
note that Fox has filed the appropriate motion in the district court, see United States
v. Taylor, 778 F.3d 667, 669–71 (7th Cir. 2015) (stating district court has subject-matter
jurisdiction over § 3582(c)(2) motion), and dismissal of this appeal will not prevent him
from pursuing that relief. Second, as counsel rightly determines, any claim of ineffective
assistance of counsel would be futile on direct appeal; that argument is best raised on
collateral review, where a record can be made to support it. See Massaro v. United States,
538 U.S. 500, 508–09 (2003); United States v. Jones, 696 F.3d 695, 702 (7th Cir. 2012).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.