United States v. Jay'von Flemming ( 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NONPRECEDENTIAL DISPOSITION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
Argued January 24, 2019
Decided February 12, 2019
Before
DANIEL A. MANION, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-2728
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v. No. 3:17 CR 00104-001
JAY’VON FLEMMING, James D. Peterson,
Defendant-Appellant. Chief Judge.
ORDER
Jay'Von Flemming pleaded guilty to bank robbery and to brandishing a firearm
during a bank robbery. See 18 U.S.C. § 2113(a), (d); 18 U.S.C. § 924(c)(1)(A)(ii). In his
plea agreement, Flemming stipulated to committing another robbery a few weeks
earlier. At sentencing, the district court found that Flemming used a firearm during the
earlier robbery and, accordingly, applied a six-level enhancement for using a firearm in
connection with the offense. See U.S.S.G. § 2B3.1(b)(2)(B). On appeal Flemming
challenges this enhancement and maintains that the gun he used during that offense
was fake. But because the district court did not clearly err, we affirm.
No. 18-2728 Page 2
In October 2017, Jay'Von Flemming and Kenny Furdge, armed with a pair of
9mm handguns, robbed the Home Savings Bank in Stoughton, Wisconsin. They made it
out of the building with $136,000 and fled by car. Law enforcement officers quickly
identified their vehicle and, after unsuccessfully attempting to pull them over, took up
pursuit. The resulting high-speed chase ended when Flemming and Furdge crashed
into a signpost, ditched the vehicle, and tried to escape on foot. They were quickly
apprehended.
In his plea agreement, Flemming not only pleaded guilty to one count of
aggravated bank robbery and one count of brandishing a firearm, see 18 U.S.C.
§ 2113(a), (d), but also stipulated to robbing Bank Mutual in Portage, Wisconsin a
month earlier. During that Portage robbery, Furdge later told law enforcement,
Flemming possessed an unloaded .40 caliber Glock. Surveillance footage from the
Portage robbery shows Flemming holding what appears to be a black handgun,
apparently by the muzzle. A witness also reported seeing Flemming with a pistol,
adding that the gun looked so large that it might have been fake.
The probation officer explained her sentencing recommendations in the PSR. For
the Stoughton robbery (count 1), she assessed an offense level of 28: starting from a base
offense level of 20, she added multiple enhancements, including two levels for robbing
a financial institution, two levels for directing victims at gunpoint, two levels for the
loss amount, and two levels for reckless creation of substantial risk while fleeing law
enforcement. For the Portage robbery, the probation officer assessed an offense level of
32: from a base level of 20, she added two levels for robbing a financial institution, six
levels for pointing a gun at and threatening to shoot victims, two levels for directing
victims to assist at gunpoint, and two levels for the loss amount. Because there were
multiple offenses, the probation officer added a two-level adjustment to the highest
offense level (the Portage robbery, offense level 32). See U.S.S.G. § 3D1.4. Finally, after
subtracting three points for acceptance of responsibility, the probation officer
determined that Flemming’s total offense level was 31. The probation officer also noted
that count 2—brandishing a firearm in furtherance of a crime of violence—required a
seven-year minimum sentence, to be served consecutively. See 18 U.S.C.
§ 924(c)(1)(A)(ii); U.S.S.G. § 2K2.4.
Flemming objected to the offense level calculation for the Portage robbery,
arguing that the gun enhancements were inappropriate because the evidence suggested
that the gun Flemming used was a fake. First, Flemming argued that the only evidence
that the gun was real was Furdge’s “conclusory statement” that he had used a .40
No. 18-2728 Page 3
caliber Glock during that robbery. He then pointed to the witness statement that the
gun “was so large that it looked fake possibly,” as well as to the surveillance photo
showing him holding the gun “like it [were] a prop.”
At the sentencing hearing, the district court overruled Flemming’s objection. The
court found “compelling” Furdge’s statement that Flemming brought an unloaded .40
caliber Glock to the robbery, in large part because it was a statement against Furdge’s
own interest (“it affected his sentence”). The court was also persuaded by Flemming’s
use of a real firearm to rob a different bank just a few weeks later. The court considered
the countervailing evidence—including the witness statement and the photograph—but
found it unconvincing. The court concluded that Flemming used a real gun that met the
definition of a firearm under U.S.S.G. § 1B1.1. The district court then adopted the
guidelines calculations set forth in the PSR, arriving at a range of 135 to 168 months. The
court sentenced Flemming to the top of that range—14 years—for count 1 and 7 years
for count 2, to be served consecutively.
On appeal, Flemming essentially renews his overruled objection, arguing that the
Portage robbery firearm enhancement was improper because he did not use a real gun.
He bifurcates his argument artificially, assigning fault first to the government (for not
responding to his objections, for not calling witnesses at the hearing, and for not making
any arguments to support the firearm enhancement) and then to the court (for
committing clear error in finding, without any proof, that the gun was real).
Only the second argument is at issue: whether the district court erred when it
found, by a preponderance of the evidence, that Flemming possessed a real firearm
during the Portage robbery. See United States v. O'Brien, 560 U.S. 218, 224 (2010)
(sentencing factors can be proved by a preponderance of the evidence.). We review
findings of fact "with great deference to the district court, reversing only in the case of
clear error." United States v. Johnson, 342 F.3d 731, 734 (7th Cir. 2003). Under clear error
review, we will reverse only if, after examining the record, we are “left with a definite
and firm conviction that a mistake has been committed.” Johnson, 342 F.3d at 734 n.2.
Flemming suggests that the district court committed such a mistake when it
accepted Furdge’s assertion that the gun was real. But the district court did not clearly
err when it interpreted “unloaded .40 caliber Glock” to mean “real unloaded .40 caliber
Glock.” The government provided enough evidence—Furdge’s statement, the actual
guns used in the Stoughton robbery, and the photograph—to support the district
No. 18-2728 Page 4
court’s finding. The evidence does not appear to compel an opposite result, so we will
not disturb the district court’s ruling.
AFFIRMED