United States v. Griffin, Randy ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-4177 & 05-4178
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RANDY GRIFFIN and STANLEY LOMAX,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 531—David H. Coar, Judge.
____________
ARGUED OCTOBER 30, 2006—DECIDED JULY 16, 2007
____________
Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. This case arises out of a
string of armed robberies committed in 2002 and 2003.
After two of the conspiracy’s leaders testified at trial, a
jury convicted Randy Griffin and Stanley Lomax of rob-
bery, conspiracy to commit robbery, and using, possessing,
and brandishing or discharging a firearm. Although
Lomax only participated in one robbery, we find that this
participation along with his travel to scout other targets
and willingness to participate in additional robberies
provided sufficient evidence to support his conspiracy
conviction. We find no merit in the appellants’ other
challenges, save for Griffin’s challenge to his sentence.
2 Nos. 05-4177 & 05-4178
Because the district court attached a presumption of
reasonableness to a within-Guidelines sentence in his
case, and the record does not reflect that Griffin would
have received the same sentence absent that presumption,
the government agrees that we must remand his case
for resentencing.
I. BACKGROUND
During 2002 and 2003, a group led by Sidney Upchurch,
Travis Hoffman, and Bobby Joe Wynn committed more
than a dozen armed robberies of currency exchanges and
other businesses in the greater Chicago area. This was
not a fly-by-night operation. Upchurch identified loca-
tions to rob and scouted out the establishments in ad-
vance, watching the employees as they came and went. In
some instances, he obtained personal information about
the businesses’ employees, including the license plate
numbers of their cars. At times, Upchurch would also pay
Chicago Police Department officers (later indicted in a
separate case) to obtain the addresses associated with
the license plates. Upchurch’s associates used that infor-
mation during the subsequent robberies by telling, for
example, currency exchange employees that other associ-
ates were at the employee’s home with the employee’s
family members (though the associates were not actually
there), and then naming the home’s exact address.
Three robberies are relevant to this appeal. On Septem-
ber 11, 2003, Upchurch, Appellant Randy Griffin, Hoff-
man, and Wynn headed to the Richton Park Currency
Exchange. When a squad car arrived in the vicinity, the
group scrapped their initial plan of entering the premises
as the employees closed the business. Instead, the group
followed an employee home, and Wynn abducted her at
gunpoint. He also obtained the employee’s keys, and
Griffin drove the employee’s car to the currency exchange.
Nos. 05-4177 & 05-4178 3
There, Wynn forced the employee to open the safe, and
Upchurch and Griffin retrieved bags of money. Back at
Upchurch’s home, the four participants split the robbery’s
proceeds of approximately $107,101 (and also gave a
portion to Hoffman’s mother, who pursuant to Upchurch’s
plan had parked her car next to his with the thought
that a single car in the parking lot would have looked
suspicious). Griffin commented that the robbery had been
“easy money” and told Upchurch he was available to
commit more robberies; when Wynn told Griffin there
might be more jobs, Griffin responded that he wanted to
participate.
On September 26, 2003, Hoffman and Appellant Stanley
Lomax robbed the 159th and Laramie Currency Ex-
change in Oak Forest, Illinois of approximately $1300,
with Upchurch acting as the lookout. That morning,
Upchurch, Hoffman, Wynn and a person named “Demarco”
headed to the currency exchange with the intention of
robbing it, but they did not do so because of heavy traffic
in the area. When Upchurch attempted to gather the
crew again that evening, Demarco and Wynn were not
available. Upchurch telephoned Hoffman and informed
him the robbery would not take place that day, but
Hoffman responded that Lomax was with him and could
do the job. Lomax then spoke with Upchurch over the
telephone and told him he could handle the robbery. The
three met that evening near the currency exchange. With
Upchurch acting as the lookout, Lomax and Hoffman,
armed with guns, overpowered employees Gina Garcia
and Rosa Ortega, entered the currency exchange, and
forced Garcia to open the safe. Garcia and Ortega heard
gun shots as Lomax and Hoffman left the premises.
Sometime within the next month, Lomax rode with
Upchurch, Hoffman, Wynn and Robert Jones to scout out
other robbery targets. Early one morning, the group
traveled to a currency exchange on Janes Street in Down-
4 Nos. 05-4177 & 05-4178
ers Grove, Illinois, with plans of robbing it. The robbery
had to be called off, however, when Jones parked the car
in the wrong location. On the same trip, the group also
looked at a currency exchange in Homer Glen, Illinois,
before returning to Chicago. Although Hoffman and
Lomax wanted to rob this currency exchange, Upchurch
told them they could not.
In late October, Griffin, Upchurch, and Wynn drove to
Downers Grove, Illinois with the intention of robbing
the Woodridge Currency Exchange. Although the three
abandoned their plan to rob the establishment that day,
Griffin, Upchurch, Hoffman, Michael Bowman, and a
person known as “Stacks” returned on November 4. The
group robbed the currency exchange of about $3,540. They
did so intending, at least in part, to obtain money to
bond Wynn, then incarcerated, out of jail.
The government charged nine defendants in a twenty-six
count indictment, including a charge that thirteen cur-
rency exchange robberies took place as part of a single
conspiracy. Seven of the nine defendants pled guilty, with
only Griffin and Lomax proceeding to trial. There,
Upchurch and Wynn, law enforcement officials, and
robbery victims testified for the government. A jury
convicted Griffin and Lomax on all counts. Griffin was
convicted of conspiring to commit robbery in violation of
18 U.S.C. § 1951; two counts of robbery in violation of
18 U.S.C. §§ 1951(a) and 2; and two counts of using,
carrying, and brandishing a firearm in violation of 18
U.S.C. §§ 924(c)(1)(A) and 2. The jury found Lomax
guilty of conspiring to commit robbery in violation of 18
U.S.C. § 1951; robbery in violation of 18 U.S.C. §§ 1951(a)
and 2; and using, carrying, and discharging a firearm in
violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. On August 29,
2005, the district court sentenced Griffin to 524 months’
imprisonment and three years of supervised release.
Nos. 05-4177 & 05-4178 5
Lomax received a sentence of 308 months’ imprisonment
and three years of supervised release. Both appeal.
II. ANALYSIS
A. Interstate Commerce
First, we address the appellants’ argument that the
robberies did not have an impact on interstate commerce
sufficient to support their convictions under the Hobbs
Act, 18 U.S.C. § 1951(a). As an initial matter, we note
that although the defendants contend that accepting
their argument means this court lacks “subject matter
jurisdiction,” the interstate commerce requirement in the
Hobbs Act does not implicate our power to decide this
case. See United States v. Rogers, 270 F.3d 1076, 1078
(7th Cir. 2001); United States v. Martin, 147 F.3d 529, 531-
32 (7th Cir. 1998). Rather, establishing the requisite
nexus with interstate commerce is an essential element of
the crime. See Martin, 147 F.3d at 531-32. As a result, we
view the evidence in the light most favorable to the
government and will respect the jury’s verdict so long as
any rational trier of fact could have found the interstate
commerce element beyond a reasonable doubt. United
States v. Re, 401 F.3d 828, 835 (7th Cir. 2005).
The appellants were each convicted of conspiring to
commit robbery and robbery in violation of 18 U.S.C.
§ 1951(a). As relevant here, that section of the Hobbs
Act prohibits robbery that “in any way or degree ob-
structs, delays, or affects commerce.” Griffin and Lomax
maintain that the actions for which they stood trial
affected purely local commerce, not interstate commerce
as the statute requires. But we have repeatedly held
that the government need only prove a de minimis poten-
tial impact on interstate commerce to prove a Hobbs
Act violation, see, e.g., United States v. Sutton, 337 F.3d
6 Nos. 05-4177 & 05-4178
792, 796 (7th Cir. 2003); United States v. Peterson, 236
F.3d 848, 851-52 (7th Cir. 2001), so long as “[t]he class of
transactions or the types of businesses affected . . . have
a substantial connection to interstate commerce, such
that interference with that class of transactions would
have a substantial effect on commerce—even if the
specific events prosecuted do not, themselves, have a
substantial effect on interstate commerce.” Sutton, 337
F.3d at 796 n.2. The transactions of banks meet that
requirement, id., and we are satisfied that the transac-
tions of the currency exchanges here do as well. And we
have already rejected the appellants’ argument that the
Supreme Court’s decisions in United States v. Lopez, 514
U.S. 549 (1995), and United States v. Morrison, 529 U.S.
598 (2000), mandate a higher standard. Sutton, 337 F.3d
at 796; Peterson, 236 F.3d at 851-52.
Here, Griffin and Lomax stipulated that the robberies
depleted the assets of the currency exchanges they
robbed, that the exchanges conducted multiple financial
transactions that resulted in the transfer of funds between
Illinois and other states (including cashing checks
issued by out-of-state banks and processing bills for
customers resulting in payments transmitted out-of-state),
and that the businesses purchased supplies from out-of-
state companies. The stipulation also stated that the
stolen funds would have been available for such uses and
purposes if not for the robberies. We have no trouble
concluding that this stipulation demonstrates at least a
de minimis impact on interstate commerce. As that is all
the statute requires, the appellants’ challenge on this
ground fails.
B. Conspiracy Conviction
We next address the appellants’ argument that an
impermissible variance existed between the conspiracy
Nos. 05-4177 & 05-4178 7
charged in the indictment and that proved at trial. “A
variance arises when the facts proved by the government
at trial differ from those alleged in the indictment.” United
States v. Stigler, 413 F.3d 588, 592 (7th Cir. 2005). We
treat a conspiracy variance claim as an attack on the
sufficiency of the evidence supporting the jury’s find-
ing that each defendant was a member of the same
conspiracy. United States v. Nitch, 477 F.3d 933, 936 (7th
Cir. 2007) (citing United States v. Townsend, 924 F.2d
1385, 1389 (7th Cir. 1991)). A defendant succeeds on a
variance claim only by showing that the evidence at trial
was insufficient to support the jury’s finding of a single
conspiracy and that he was prejudiced by the variance.
Stigler, 413 F.3d at 592. Therefore, “ ‘even if the evidence
arguably establishe[d] multiple conspiracies, there [is] no
material variance from an indictment charging a single
conspiracy if a reasonable trier of fact could have found
beyond a reasonable doubt the existence of the single
conspiracy charged in the indictment.’ ” Townsend, 924
F.2d at 1389 (quoting United States v. Prince, 883 F.2d
953, 959 (11th Cir. 1989)).
A conspiracy exists when: (1) two or more people agree
to commit an unlawful act, and (2) the defendant know-
ingly and intentionally joins in the agreement. Stigler, 413
F.3d at 592. The government does not need to prove with
whom a defendant conspired to obtain a conspiracy
conviction, however, as “[t]he crime of conspiracy focuses
on agreements, not groups.” Townsend, 924 F.2d at 1389.
Instead, the government “need only prove that the defen-
dant joined the agreement alleged, not the group.” Stigler,
413 F.3d at 592 (quoting Townsend, 924 F.2d at 1389).
Here, the indictment charged a conspiracy to affect
commerce by robbery, with credit unions and currency
exchanges the targets of the armed robberies. The govern-
ment maintains that sufficient evidence supports the
8 Nos. 05-4177 & 05-4178
jury’s finding that Lomax and Griffin were part of a
single conspiracy with the shared goal of committing
armed robberies of currency exchanges and other com-
mercial establishments.
Lomax’s variance challenge presents the closer argu-
ment of the two. He maintains that the evidence demon-
strated only that he agreed to participate in a single
criminal act, namely the robbery of the currency exchange
at 159th & Laramie on September 26, 2003, and, therefore,
that his conviction for conspiracy cannot stand. Moreover,
it is true that he did not participate in the planning of
that robbery and was only a last-minute addition when
other persons were unavailable. However, we disagree
that the evidence was insufficient to find him guilty of
the charged conspiracy. Lomax unquestionably played a
central role in the 159th & Laramie robbery. But that
was not all. On a different occasion within the month
that followed, Lomax rode with Upchurch, Hoffman, Wynn,
and Robert Jones to scout additional robbery targets.
Lomax planned to rob a currency exchange in Downers
Grove, Illinois with the others that day, and they did not
do so only when Jones parked the car in the wrong spot.
Lomax then remained in the vehicle as the group scouted
another currency exchange in the town of Homer Glen.
There, he made it known that he wanted to rob that
location, as did Hoffman, but Upchurch said the group
could not do it.
Lomax concedes that if the evidence was sufficient to
show that he participated in the trip to Downers Grove
and Homer Glen, the government proved his involvement
in the conspiracy. The evidence relating to Lomax’s
involvement came from Upchurch’s testimony at trial,
and Lomax maintains that Upchurch’s testimony should
not be believed. He argues, for instance, that Wynn
contradicted the testimony from Upchurch, as Wynn
testified that he had never committed a crime with Lomax.
Nos. 05-4177 & 05-4178 9
In addition, he points out that when Upchurch first named
his co-conspirators to the grand jury, he did not include
Lomax. But credibility is for a jury to decide, and the
jury was entitled to believe Upchurch’s testimony that
Lomax rode with the others to scout additional targets
and wanted to rob another currency exchange. See United
States v. Radziszewski, 474 F.3d 480, 485 (7th Cir. 2007)
(credibility determinations reversed only under exceptional
circumstances); United States v. Williams, 298 F.3d 688,
692 (7th Cir. 2002) (conspirator’s testimony sufficient to
prove existence of a conspiracy). Lomax’s counsel cross-
examined Upchurch at length and questioned him re-
garding his initial failure to identify Lomax as a person
with whom he had committed robbery. Whether to be-
lieve Upchurch was up to the jury. We conclude that his
testimony was sufficient to allow the jury to find that
Lomax participated in the charged conspiracy, and
Lomax’s fatal variance challenge fails.
Griffin’s variance challenge is easier to resolve.
Upchurch and Wynn each testified that Griffin was an
armed participant in the robbery of the Richton Park
Currency Exchange. After that robbery netted over
$100,000, Griffin told Upchurch the robbery had been
“easy money” and said he was available if needed again.
About six weeks later, Griffin accompanied Upchurch
and Wynn on a scouting trip to a currency exchange at
75th and Lemont in Downers Grove. The group did not
rob the location at that time, but approximately one week
later, Griffin, Upchurch, and three others returned and
carried out the robbery. This evidence was sufficient to
support the jury’s conclusion that Griffin was a member of
the charged conspiracy.1
1
For similar reasons, Griffin’s challenge to the sufficiency of the
evidence to sustain his convictions for the two armed robberies
(continued...)
10 Nos. 05-4177 & 05-4178
C. Multiple Conspiracy Instruction
The appellants also contend that the district court
should have allowed Lomax’s proposed jury instruction on
multiple conspiracies. See United States v. Katalinich, 113
F.3d 1475, 1482 (7th Cir. 1997) (multiple conspiracies
exist when there are “separate agreements to effectuate
distinct purposes”). After the government objected, the
district court concluded that the proposed instruction
was inaccurate and declined to give it.
Although we review de novo whether the substance of
a jury instruction fairly and accurately states the law,
United States v. Smith, 308 F.3d 726, 740 (7th Cir. 2002),
a defendant waives the right to object to a jury instruc-
tion on appeal if the record demonstrates that the defen-
dant approved of the proposed instruction. United States
v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996). In a conference
prior to closing arguments, the district court concluded
that the defense’s proposed instruction was inaccurate.
The district court explained its concern with the pro-
posed instruction, and Lomax’s counsel stated, “I think
the way you laid it out is basically the way that we are
asking for and your direction would be proper with the
way you stated it and we have no objection to it.” The court
concluded the discussion by stating that it would draft
an instruction over a break, which it did.
When the instruction conference resumed, the district
court provided an instruction to the parties and re-
quested comments from counsel. No objections to the
instruction’s substance were raised, although the parties
briefly discussed “awkward” phrasing in the instruction.
1
(...continued)
fails. Wynn and Upchurch both gave testimony detailing Griffin’s
participation in the robbery, and the jury was entitled to be-
lieve this testimony.
Nos. 05-4177 & 05-4178 11
Lomax’s counsel then stated, “I am not going to object to
it,” and “Fine, Judge. We have no objection.” Counsel’s
affirmative statement that he had no objection to the
proposed instruction constitutes waiver of the ability to
raise this claim on appeal. See United States v. Gonzalez,
319 F.3d 291, 298 (7th Cir. 2003); United States v.
Anifowoshe, 307 F.3d 643, 650 (7th Cir. 2002). This
waiver forecloses the appellants’ challenge on appeal to
the denial of the proposed instruction.
D. Findings that Firearms Were Brandished and
Discharged
Griffin and Lomax also contend, as they did before trial,
that a jury is the proper body to determine whether
Griffin brandished a firearm and whether Lomax dis-
charged a firearm. Under 18 U.S.C. § 924(c)(1)(A), a seven-
year mandatory minimum sentence applies in certain
instances when a firearm is “brandished” and a ten-year
minimum when a firearm is “discharged.”
At sentencing, the district court found by a preponder-
ance of the evidence that a firearm was brandished during
the robbery of the Richton Park Currency Exchange.
Therefore, the district court imposed the seven-year
mandatory minimum sentence for Griffin on one count,
and a twenty-five year minimum sentence on another
count because it was his second conviction under section
924(c). See 18 U.S.C. §§ 924(c)(1)(A)(ii), 924(c)(1)(C)(i); see
also United States v. Roberson, 474 F.3d 432, 433 (7th Cir.
2007) (defendant liable for reasonably foreseeable crimes
committed during course of conspiracy) (citing Pinkerton
v. United States, 328 U.S. 640, 646-48 (1946)). The dis-
trict court concluded that the ten-year minimum applied
to Lomax because a firearm was discharged during the
robbery of the 159th & Laramie Currency Exchange. See
18 U.S.C. § 924(c)(1)(A)(iii).
12 Nos. 05-4177 & 05-4178
The appellants contend on appeal that these mandatory
minimum sentences are unconstitutional because they
are based on facts found only by a judge, and not ad-
mitted by the defendant or found beyond a reasonable
doubt by a jury. They acknowledge, as they must, that the
Supreme Court considered and rejected the argument
that facts increasing mandatory minimum sentences
may not be found by judges. Harris v. United States, 536
U.S. 545, 559-60 (2002). Although they maintain that the
Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), calls the Harris decision into question,
we have held that Harris survives Booker until the Su-
preme Court says otherwise. United States v. Jones,
418 F.3d 726, 732 (7th Cir. 2005) (“[T]o the extent that
Booker has unsettled Harris, it is the Supreme Court’s
prerogative—not ours—to say so.”). Accordingly, the dis-
trict court properly imposed the mandatory minimum
sentences provided in section 924(c).
E. Lomax’s Individual Challenges
1. Line-Up Identification
Lomax also raises several challenges of his own, the first
concerning two currency exchange employees’ identifica-
tions of him as a person who had robbed their exchange
at gunpoint on September 26, 2003. Lomax contends that
the identification process was unduly suggestive, and,
therefore, that the district court should have granted his
motion to suppress these identifications. We review a
district court’s decision to admit identification testimony
de novo, with due deference to the district court’s find-
ings of historical fact. United States v. Jones, 454 F.3d
642, 648-49 (7th Cir. 2006); United States v. Harris, 281
F.3d 667, 669-70 (7th Cir. 2002).
“Eyewitness identification testimony violates a defen-
dant’s right to due process of law when it creates a ‘very
Nos. 05-4177 & 05-4178 13
substantial likelihood of irreparable misidentification.’ ”
Jones, 454 F.3d at 648 (quoting Neil v. Biggers, 409 U.S.
188, 198 (1972)) (internal citation omitted). When con-
sidering whether the admission of identification testimony
violated a defendant’s right to due process, we have
followed a two-step approach. The defendant must first
establish that the lineup procedures were unduly sug-
gestive. Id. at 649. If so, we consider whether the identifi-
cation was nevertheless reliable. Id.; cf. United States v.
Brown, 471 F.3d 802, 804-05 (7th Cir. 2006) (discussing
research concerning risk of misidentification in iden-
tifications made by strangers).
The district court held a hearing on Lomax’s motion to
suppress. During the hearing, currency exchange em-
ployees Gina Garcia and Rosa Ortega testified, as did
Detective Rick Belcher of the Oak Forest, Illinois Police
Department. According to this testimony, on November 25,
2003, Detective Belcher showed a photo array to Ortega
of six persons, including Lomax. Ortega did not identify
anyone from the array as a participant in the robbery.
Later, Detective Belcher showed the photo array to Garcia.
Garcia stated that she thought the person depicted in
photograph number 4 (Lomax) might be one of the per-
sons that had robbed her employer, but she was not sure.
About two months later, on January 20, 2004, Ortega and
Garcia separately viewed physical lineups of Lomax and
four other persons. Each asked to see subject number 3
(Lomax) a second time, and each identified that person as
one of the robbers.
Turning first to whether the procedures were unduly
suggestive, Lomax does not challenge the individual photo
arrays or lineups, but rather the process as a whole. In
particular, he argues that Ortega and Garcia only be-
came sure that Lomax was one of the persons in the
currency exchange after they had viewed a photo array
and a physical lineup.
14 Nos. 05-4177 & 05-4178
But viewing a physical lineup after a photo array, with
both containing the defendant, is not on its own unduly
suggestive. We considered a similar argument in Harris,
where the defendant argued that the lineup identifica-
tion process was unduly suggestive because he was the
only person to appear in both a photo array and physical
lineup (each contained multiple persons). Rejecting
this argument, we stated “there is nothing per se imper-
missible about placing the same suspect in two different
identification procedures.” Harris, 281 F.3d at 670-71; see
also United States v. Carter, 410 F.3d 942, 949 (7th Cir.
2005) (identification procedure not unduly suggestive
when defendant appeared in two photo arrays three
months apart). Noting that the physical lineup took place
nearly six months after the photo array, we concluded that
the amount of time that passed made it unlikely the
identification had been influenced by the earlier photo-
graph. Harris, 281 F.3d at 670; cf. Stewart v. Duckworth,
93 F.3d 262, 266 (7th Cir. 1996).
We turn to Ortega’s identification first. Although the
two months that passed between the procedures is
shorter here than the intervening period in Harris or
Carter, we still do not think it rendered Ortega’s iden-
tification unduly suggestive. Two months is still a sig-
nificant length of time, and Lomax points to nothing else
that he contends rendered the process improper. The
subjects in the photo array and physical lineup all had
physical characteristics similar to his, and Lomax ap-
peared in a different place in the photo array (where he
was the fourth subject) and physical lineup (where he
was third). We conclude that the district court properly
denied the motion to suppress Ortega’s identification of
Lomax.
The testimony concerning Garcia’s identification con-
tained some discrepancies. Detective Belcher testified that
he only showed her the photo array containing Lomax on
Nos. 05-4177 & 05-4178 15
one occasion. When Garcia took the stand, over a year
after Detective Belcher had visited her, she testified that
she had been shown the photo array at two different times.
The government maintains that the two arrays Garcia
mentions in her testimony refer to one array containing
Lomax and a separate array containing Hoffman, the
other robber. Although this explanation is plausible, the
district court did not make a factual finding as to the
number of photo arrays Garcia viewed before the physical
lineup. If Garcia first viewed two arrays containing
Lomax, whether the procedure was unduly suggestive
would be a closer question than it was in Harris or Carter.
Even if the procedure by which Garcia identified Lomax
was unduly suggestive in some respect, however, her
identification testimony was nonetheless properly ad-
mitted because her identification was reliable. We con-
sider the totality of the circumstances in making this
determination, examining factors including “the opportu-
nity of the witness to view the criminal at the time of
the crime, the witness’ degree of attention, the accuracy of
his prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between
the crime and the confrontation.” Manson v. Brathwaite,
432 U.S. 98, 114 (1997) (citing Biggers, 409 U.S. at 199-
200). Against these, we weigh the corrupting effect of the
suggestive identification itself. Id.Here, Garcia came face-to-face with Lomax at the front
door of the currency exchange when he and Hoffman
overpowered the two employees as they were leaving
for the evening. She explained that she could see the
robbers’ faces as they struggled, and also that she, Ortega,
and the two robbers all went to the back of the business
together. A light remained on in the lobby, and she
testified that the interior of the exchange was bright
enough to see the individuals’ faces. As the subject of an
armed robbery after the close of business, her attention
16 Nos. 05-4177 & 05-4178
on Lomax and Hoffman was high. Moreover, Garcia
testified with certainty that the person she identified in
the physical lineup four months after the robbery was
one of the robbers. She also testified that when she
made that identification, she did so thinking back to the
robbery and not to the photo array. Especially in light of
Garcia’s testimony that she had a good look at Lomax’s
face as he entered the exchange, we find that the totality
of the circumstances demonstrates that Garcia’s iden-
tification was sufficiently reliable. The district court did
not err in admitting either witness’s identification testi-
mony.
2. Evidence of Lomax’s Day-Reporting Status
Lomax also maintains that the district court abused its
discretion when it allowed the government to admit
evidence that he was on day-reporting status with the
Cook County Department of Corrections during the
conspiracy. Before trial, Lomax filed a motion asking
the district court to prohibit any mention of his day-
reporting status, arguing that it was not admissible under
Federal Rule of Evidence 404(b). The government re-
sponded that the evidence was inextricably intertwined
with the charged offense and was therefore admissible.
The district court deemed the evidence admissible, a
decision we review under an abuse of discretion standard.
United States v. Souffront, 338 F.3d 809, 825 (7th Cir.
2003).
At the time of Lomax’s participation in the charged
crimes, he was on bond and reporting daily to the Cook
County, Illinois Department of Corrections in what is
known as “day reporting.” The government sought to
introduce evidence of Lomax’s day-reporting status to
explain why, although Lomax expressed interest in doing
Nos. 05-4177 & 05-4178 17
so, Lomax did not participate in additional robberies
with Upchurch and the other co-defendants.
Acts that are “inextricably intertwined” with the conduct
on trial are admissible because they fall outside Rule
404(b)’s constraints on “other” crimes or acts. United
States v. Luster, 480 F.3d 551, 556 (7th Cir. 2007). Evi-
dence is inextricably intertwined, or “intricately re-
lated,” with the charged conduct if it helps complete the
story of the crime on trial, if its absence would create a
conceptual or chronological void in the story of the
crime on trial, or if it is so blended or connected that
it incidentally involves, explains the circumstances
surrounding, or tends to prove an element of the charged
crime. United States v. McLee, 436 F.3d 751, 760 (7th Cir.
2006). Inextricably intertwined evidence is not subject to
the constraints in Rule 404(b), but it still must satisfy the
balancing test set forth in Rule 403 to be admissible.
United States v. James, 464 F.3d 699, 709 (7th Cir. 2006).
Rule 403 provides that although relevant, “evidence
may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.” In this case, testimony at trial
established that Lomax participated in the robbery of one
currency exchange, traveled with Upchurch and others
to rob another currency exchange before the robbery was
called off, and encouraged the robbery of yet another
currency exchange. Upchurch said that he understood day
reporting to be a community service-type arrangement
where one reports in the morning to the Cook County
Jail to participate in a form of “day parole.” Upchurch
also testified that he was not comfortable scheduling
robberies around Lomax’s day reporting schedule be-
cause Lomax would be taken into custody if he did not
report on time, and the group would need to bond him out.
18 Nos. 05-4177 & 05-4178
Although the government could have avoided this
issue on appeal by eliciting testimony that Lomax was
unavailable without reference to “day reporting” or
Lomax’s parole status, we do not think the district court
abused its discretion when it allowed it. Upchurch’s
brief testimony that Lomax was on day-reporting status
helped complete the story of the conspiracy for which
Lomax stood trial, as it explained the circumstances
surrounding Lomax’s relatively brief involvement with the
other conspirators. It also helped counter Lomax’s argu-
ment that the short duration of his involvement demon-
strated that he had not agreed to join the larger conspir-
acy. On this record, the district court did not abuse its
discretion in admitting it.
F. Griffin’s Sentence
Finally, Griffin argues that at his sentencing, the district
court improperly applied a presumption that a sentence
within the range recommended by the United States
Sentencing Guidelines is reasonable. Griffin acknowledged
in his sentencing memorandum that the statutory mini-
mum sentence for his two counts of conviction under
section 924(c)(1)(A) was 32 years, or 384 months. See 18
U.S.C. § 924(c)(1)(A)(ii), (c)(1)(C)(i). These 384 months
had to run consecutively to the sentences imposed on his
other counts of conviction. See 18 U.S.C. § 924(c)(1)(D)(ii).
With respect to Griffin’s non-section 924(c) convictions,
the Guidelines provided for a range of 140 to 175 months.
The district court calculated the resulting Guidelines
range as 524 to 559 months, and Griffin asked for no
more than the statutory minimum of 384 months. Griffin
received a 524-month sentence.
In our appellate review of a sentence’s reasonableness,
we have applied a presumption that a sentence within a
properly calculated Guidelines range is reasonable. United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005).
Nos. 05-4177 & 05-4178 19
In a decision after Griffin’s sentencing took place, we
stated that a district court judge, in contrast, “is not
required—or indeed permitted—to ‘presume’ that a sen-
tence within the guidelines range is the correct sentence
and if he wants to depart give a reason why it’s not cor-
rect.” United States v. Demaree, 459 F.3d 791, 794-95 (7th
Cir. 2006) (citation omitted). Notably, the Supreme Court
recently made clear that although appellate courts may
apply a non-binding presumption that a sentence im-
posed within a properly calculated Guidelines range
is reasonable, the presumption of reasonableness is “an
appellate court presumption” and “applies only on appel-
late review.” Rita v. United States, No. 06-5754, 2007 WL
1772146, at *9 (June 21, 2007).
At Griffin’s sentencing, the district court, acting without
the benefit of Rita or Demaree, stated: “[T]he burden’s
on the defendant to overcome the rebuttable presumption
that a guideline sentence is appropriate . . . . I’m not in
a position to find on this record that the presumption of
reasonableness of the guideline sentence has been over-
come.” Accordingly, although it recognized that even the
lowest end of the Guidelines range reflected a “stiff sen-
tence,” the district court sentenced Griffin to 524 months’
imprisonment, at the bottom of the Guidelines range it
had calculated.
In a letter submitted pursuant to our Circuit Rule 28(j)
and again at oral argument, the government agreed that
Griffin’s sentence should be vacated as a result of the
district court’s application of a rebuttable presumption of
reasonableness in this case. In particular, the govern-
ment asserted that “the presumption of reasonableness
does not directly apply at the district court level.” As Rita
makes clear, the government’s position was correct, and
we will vacate Griffin’s sentence and remand his case
for resentencing.
20 Nos. 05-4177 & 05-4178
III. CONCLUSION
We AFFIRM the convictions of Griffin and Lomax, and we
do not disturb the sentence Lomax received. With respect
to Griffin only, we VACATE his sentence and REMAND
for resentencing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-16-07