United States v. Duryea Rogers , 777 F.3d 934 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-2053
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DURYEA ROGERS,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 13-CR-00159— Sarah Evans Barker, Judge.
ARGUED JANUARY 8, 2015 — DECIDED FEBRUARY 4, 2015
Before BAUER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. Duryea Rogers pleaded guilty to
conspiracy to commit armed bank robbery, armed bank
robbery, and brandishing a firearm during a crime of violence
(in this case, a bank robbery). He challenges the district court’s
imposition of a two-level enhancement for carjacking under
U.S.S.G. § 2B3.1(b)(5). We affirm.
2 No. 14-2053
I. Background
On the morning of June 26, 2013, Duryea Rogers and Xavier
Hardy (as well as three other co-conspirators) set out to rob a
bank. To that end, they drove to the Community Bank in
Fishers, Indiana, parked in a lot across the street, and waited.
When the first bank employee arrived at just before 8 a.m.,
they drew their guns on her and forced her into the bank.
Under the direction of Rogers, the employee did everything
that she would normally do: she turned on lights, deactivated
the alarm, placed her purse on the counter, and unlocked the
front door. But she did not give the all-clear signal indicating
to other employees that it was safe to enter the bank.
Rogers escorted the employee to the vault and ordered her
to open it but she could not. (To deter robberies, bank vaults
often cannot be opened by a single employee—but advance
deterrence relies on criminals knowing this and this group did
not.) The robbery was a failure: Rogers and Hardy never
obtained any cash from the bank.
But they did not leave empty-handed. While Rogers and
the employee struggled with the vault, Hardy rummaged
through the employee’s purse, and took her car keys and
identification. The pair then directed the employee into the
break room, ordered her to lie on the floor, and zip-tied her
hands and feet together. Rogers and Hardy fled in the
employee’s Chevy Equinox, which was parked next to the
bank.The other co-conspirators fled in a minivan as well as the
Chevy Tahoe that Rogers and Hardy had driven to the bank
that morning.
What the pair did not realize was that FBI agents were
No. 14-2053 3
outside the bank waiting for them; indeed, they had been
watching them the entire morning as another co-conspirator,
Deandre Armour, had been under surveillance for months for
suspicion of robbing other banks in Indiana. Various car chases
ensued. Ultimately, Rogers and Hardy deserted the Equinox in
a hotel parking lot and fled on foot. Hardy was arrested nearby
in possession of a .45 caliber pistol. Rogers was found by police
hiding in the hotel in a closet and underneath a laundry chute.
Officers also located several items discarded by Rogers,
including a .40 caliber handgun, two-way radio, and items of
clothing worn by him during the bank robbery. Finally, the
other three co-conspirators, including Armour, were also
arrested without incident.
On April 28, 2014, Rogers pleaded guilty to conspiracy to
commit bank robbery (18 U.S.C. § 371), armed bank robbery
(18 U.S.C. §§ 2113(a) and 2113(d)), and knowingly using,
carrying, and brandishing a firearm during and in relation to
a crime of violence (18 U.S.C. § 924(c)(1)(A)(ii)). The court
sentenced Rogers to 60 months’ imprisonment on each of
Counts One and Two (to be served concurrently), and 84
months on Count Three (to be served consecutively), followed
by 5 years of supervised release.
Rogers’s plea agreement left open the issue of whether he
should receive the two-level enhancement for carjacking. The
probation officer recommended application of the enhance-
ment, while Rogers argued that the behavior was already
factored into his sentence with the application of a two-level
enhancement for restraining the victim. Over Rogers’s objec-
tion, the district court concluded that the two-level enhance-
ment should apply. Rogers appeals.
4 No. 14-2053
II. Analysis
We employ the usual dual standard, reviewing for clear
error the district court’s factual findings and de novo its
application of those facts to the Guidelines. United States v.
Medina, 695 F.3d 702, 704 (7th Cir. 2012). When interpreting the
Guidelines, we begin with the text of the provision and the
plain meaning of the words in the text. United States v. Hill, 645
F.3d 900, 907 (7th Cir. 2011). In addition to the actual language
of the Guidelines, we must also consider the Application Notes
as they are considered part of the Guidelines and not mere
commentary on them. United States v. Arnaout, 431 F.3d 994,
1001 (7th Cir. 2005).
Section 2B3.1(b)(5) of the Guidelines provides for a two-
level enhancement for robberies involving carjacking, which
the Application Notes define as “the taking or attempted
taking of a motor vehicle from the person or presence of
another by force and violence or by intimidation.” § 2B3.1,
cmt. n. 1. Although Hardy, rather than Rogers, took the
employee’s keys, co-conspirator liability under
§ 1.B.1.3(a)(1)(B) is not at issue here; Rogers has not contested
it and the facts indicate that the theft was a reasonably foresee-
able part of the overall bank robbery.
At sentencing, Rogers focused on the “person and pres-
ence” requirement to argue that the Guideline did not apply to
“keyjacking” incidents where the keys, rather than the car, are
taken from the presence of the victim. On appeal, Rogers
refines his argument, contending that the facts do not support
a finding of carjacking because the keys were obtained merely
by rummaging through the employee’s purse, and not through
No. 14-2053 5
“force and violence or intimidation” as is required under the
Guideline. Notably, he argues this even as he concedes that the
bank robbery involved force or intimidation. The crucial
distinction, according to Rogers, is not whether the robbery
involved a measure of violence or intimidation, but whether
the keys were obtained through the “coerced relinquishment”
(his term) by the victim.
The “person and presence” argument has not been accepted
by any circuit that has examined it and is easily dispatched. In
holding that there is no distinction—other factors notwith-
standing—between taking a victim’s car outright and taking a
victim’s keys as merely the first action in the seizure of her car,
we join our sister circuits who have examined this question in
the context of 18 U.S.C. § 2119. They are uniform in construing
the term “presence” broadly to include the ability to retain
control of the vehicle through possession of the keys. See, e.g.,
United States v. Savarese, 385 F.3d 15, 20 (1st Cir. 2004); United
States v. Soler, 759 F.3d 226, 235 (2d Cir. 2014); United States v.
Lake, 150 F.3d 269, 272–73 (3d Cir. 1998); United States v. Davis,
233 Fed. App’x. 292, 295 (4th Cir. 2007) (per curiam unpub-
lished); United States v. Edwards, 231 F.3d 933, 937 (5th Cir.
2000); United States v. Casteel, 663 F.3d 1013, 1020–21 (8th Cir.
2011); United States v. Burns, 701 F.2d 840, 843 (9th Cir. 1983)
(per curiam); United States v. Brown, 200 F.3d 700, 705 (10th Cir.
1999).
Only the Sixth Circuit has considered directly the applica-
tion of a sentencing enhancement under § 2B3.1(b)(5) to similar
facts. In United States v. Boucha, 236 F.3d 768 (6th Cir. 2001), the
defendant forced an employee to surrender to him the keys to
6 No. 14-2053
her car during a robbery, which he used as his escape vehicle.
The defendant was convicted of bank robbery and the sentenc-
ing judge applied the two-level enhancement for carjacking.
The Sixth Circuit read the federal carjacking statute in light of
common law robbery principles applicable to the enhancement
and found the broader interpretation of “person or presence”
from the statute to conform with the language and purpose of
the Sentencing Guidelines. Id. at 775–76. We agree and hold
that, for the purpose of § 2B3.1(b)(5), a defendant who takes a
victim’s keys by force or threat of force, and who later takes the
car (which is sufficiently proximate for the owner to access it),
may be sentenced as if he took the victim’s car in the presence
of the victim by force or threat of force.
Rogers’s second argument—that the keys were not ob-
tained by “force and violence or by intimidation”—is equally
unavailing. To accept this argument, we would have to ignore
the basic fact of this case, namely that the bank employee was,
at all relevant times, acting under the orders of armed men.
The incident began with Rogers and Hardy accosting the
employee at the back door and drawing their weapons on her.
It ended with them leading her to the break room and ordering
her to lie on the floor, where they zip-tied her. In the interim,
she was in the presence of at least one of the robbers—and his
weapon—at all relevant times. These facts more than suffice to
establish that the keys were obtained through “force and
violence or by intimidation.”
No. 14-2053 7
III. Conclusion
The district court’s imposition of a two-level enhancement
to Rogers’s base offense level for bank robbery under the
carjacking enhancement of § 2B3.1(b)(5) is AFFIRMED.