United States v. Robert Fox

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2892
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT E. FOX,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:15-cr-00025 — Jane E. Magnus-Stinson, Judge.
____________________
ARGUED OCTOBER 26, 2017 — DECIDED DECEMBER 22, 2017
____________________
Before FLAUM, RIPPLE, and MANION, Circuit Judges.
MANION, Circuit Judge. Robert Fox was convicted of two
Hobbs Act robberies. Because he used a firearm to commit the
robberies, he was subject to 18 U.S.C. § 924(c)(1)’s mandatory
sentencing add-on and was sentenced to 435 months’ impris-
onment. On appeal, he principally argues that he is entitled to
a new trial because the district court denied him his right to
be represented by counsel of his choice. We affirm his convic-
tion. The district court was well within its discretion to deny
2 No. 16-2892
Fox’s morning-of-trial motion for a continuance when there
was no indication Fox was particularly close to retaining new
counsel.
Fox also raises three other arguments. He admits that the
first two, which challenge parts of his conviction, are fore-
closed by controlling precedent. He simply wishes to preserve
them for Supreme Court review. But the government con-
cedes that Fox is correct on his final argument, agreeing that
he is entitled to resentencing in light of Dean v. United States,
137 S. Ct. 1170 (2017). We agree. Dean permits district courts
to take into account the sentencing add-on when fashioning a
just sentence for the predicate robberies, so the district court
may impose a less severe sentence on remand. Therefore, we
vacate Fox’s sentence and remand for resentencing.
I. Background
Fox was charged with robbing a White Castle restaurant
and a Speedway gas station in southern Indiana. He was in-
dicted in federal court under the Hobbs Act in January 2015
and appointed counsel on account of his indigence. Fox had
some conflict with his appointed counsel and twice wrote to
the district judge—in July and September of 2015—requesting
new counsel. But at his November 3 competency hearing, Fox
did not object to continued representation by appointed coun-
sel and made no representations that he or his family were
attempting to retain private counsel. Indeed, his appointed
counsel told the court that Fox wanted to resolve the case but
wanted more time to prepare. The district court set trial to
begin on February 16, 2016.
At the final pre-trial conference on January 20, 2016, Fox
requested a continuance and claimed that his family was
No. 16-2892 3
speaking with potential new representation. The district
judge noted that she expected a superseding indictment to be
returned and was inclined to grant a continuance, but she also
warned that Fox’s case had been pending for a long time, so if
he planned to retain new counsel, “that needs to happen.” Yet
five days later, at the initial hearing on the superseding indict-
ment (which was almost entirely unchanged from the origi-
nal), Fox reversed himself and indicated that he wanted to
proceed on February 16 after all. As such, he declined to exer-
cise his right to have 30 days between the date of the super-
seding indictment and trial.
On the morning trial was to begin, Fox changed his posi-
tion again. He requested a continuance, arguing that his fam-
ily was attempting to retain private counsel. The district judge
held a short hearing on the request. Fox’s uncle testified that
the family had talked to an attorney and was “in the process
of trying to get the money,” but didn’t “have it right now.” He
also said that Fox’s family had been unaware that trial was to
start that morning, even though it had been scheduled since
early November. Fox’s appointed counsel testified that he had
spoken to the private attorney and that the latter had no plans
to make an appearance in the case. The district judge denied
the motion for a continuance, concluding that: (1) Fox had
changed his position several times, indicating a desire to pro-
ceed less than a month before trial; (2) there was no indication
that the private attorney would actually make an appearance;
and (3) the lawyers were prepared to proceed and the court
had summoned witnesses and jurors to be ready for trial that
morning.
Fox proceeded to trial and the jury convicted him of both
robberies and the accompanying counts of using a firearm in
4 No. 16-2892
connection with crimes of violence. 1 He was sentenced to 435
months’ imprisonment due to the mandatory consecutive sen-
tences for using a firearm in connection with the robberies. See
18 U.S.C. § 924(c)(1). Fox timely appealed his conviction and
sentence.
II. Analysis
A. Denial of Motion for a Continuance
Generally “[w]e will reverse the district court’s denial of a
motion for a continuance only for an abuse of discretion and
upon a showing of actual prejudice.” United States v. Shields,
789 F.3d 733, 748 (7th Cir. 2015). Yet the denial of the right to
be represented by counsel of the defendant’s choice, assuming
the defendant can afford such counsel, is a structural error
warranting reversal irrespective of prejudice. United States v.
Sellers, 645 F.3d 830, 834 (7th Cir. 2011). Nevertheless, district
courts still “have broad discretion to grant or deny a continu-
ance to substitute new counsel.” Id. We will reverse only if the
district judge’s denial of the motion amounted to “an unrea-
soning or arbitrary insistence on expeditiousness in the face
of a justifiable request for delay.” Id. (quoting United States v.
Carrera, 259 F.3d 818, 825 (7th Cir. 2001)).
Our decisions in Sellers and United States v. Sinclair, 770
F.3d 1148 (7th Cir. 2014), are particularly relevant. The facts in
Sellers are strange but instructive. The defendant retained an
attorney, but for some reason that attorney never filed an ap-
pearance and instead designated a “secondary counsel” to
represent the defendant. That counsel missed several filing
1The court declared a mistrial on the fifth count, which charged Fox
with being a felon in possession of a firearm.
No. 16-2892 5
deadlines and improperly relied on a schedule issued by the
magistrate judge that assumed the district judge would grant
a continuance. Despite secondary counsel’s several represen-
tations to the court that the defendant’s actual counsel of
choice would file an appearance soon, it never happened. So
on the Friday before trial, the defendant told the district court
that he wished to fire secondary counsel and was in contact
with two additional attorneys, one of whom he planned to
hire. The court said it was unlikely to grant a continuance, so
the defendant reluctantly agreed to continue with secondary
counsel. Yet on the morning of trial, the defendant appeared
with the secondary counsel and his new counsel of choice. The
new counsel said he’d file an appearance only if the court
granted a continuance to give him time to prepare, but the
court denied the request on the ground that it had already
made several attempts to accommodate the situation and the
promises of original counsel of choice to appear had not come
to fruition. The defendant proceeded with secondary counsel
“under protest” and was convicted.
We held that the district court unreasonably denied the de-
fendant the right to be represented by his counsel of choice.
We determined that the district court had failed to inquire of
either counsel “how long substitute counsel would need to
prepare adequately for trial,” which “evidence[d] a failure to
actually balance the right of choice of counsel against the
needs of fairness, and suggest[ed] that the district court un-
reasonably viewed any delay as unacceptable.” Sellers, 645
F.3d at 837. We also found it troubling that the district court
might have denied the motion in part because it was annoyed
with the secondary counsel’s failure to meet filing deadlines,
or possibly annoyed by eleventh-hour continuance motions
6 No. 16-2892
more generally. Id. at 838. In the end, “legitimate considera-
tions must be balanced against the reasons in support of the
motion for a continuance to accommodate new counsel.” Id.
at 838–39. Failure to perform that balancing warranted rever-
sal.
Contrast those facts with Sinclair. There, six days before
the trial was to begin, the defendant sent a letter to the district
court seeking a continuance because his family was planning
to retain a private attorney with their tax refund money. The
judge held a hearing the day before trial, and the defendant
reiterated that as soon as the refund money came through, his
family would retain the new attorney. The defendant also
stated vague complaints about the federal defender who had
represented him in his suppression hearing. The judge denied
the continuance request, pointing out that (1) it was made at
the last minute and no reason was given for the delay; (2) ju-
rors and witnesses had already been summoned for trial; and
(3) the retention of the new attorney was still quite uncertain.
We affirmed the denial of the continuance motion. Partic-
ularly, we observed that the defendant’s family’s plans to hire
substitute counsel were “at best preliminary and highly con-
tingent.” Sinclair, 770 F.3d at 1155. Given that uncertainty,
“[t]he preferred lawyer’s failure to appear in support of a de-
fendant’s continuance motion is a significant factor weighing
against granting a continuance.” Id. at 1156. We also noted
that the district judge properly considered the inconvenience
to jurors and witnesses, which constitute “real costs for real
people (not to mention the sunk public resources).” Id. at 1155.
In short, the judge’s decision was “neither unreasoned nor ar-
bitrary.” Id. at 1156.
No. 16-2892 7
Our case bears little resemblance to the situation in Sellers,
but is quite similar to Sinclair. Like the defendant in Sinclair,
Fox sought a continuance very near the trial date, had no rea-
son to wait that long, and had an uncertain plan to retain new
counsel. Indeed, Fox waited longer than the Sinclair defend-
ant to make his motion, and his plan to hire an attorney was
even more speculative than was Sinclair’s. Fox’s uncle didn’t
specify when the family would have the money together to
retain new counsel, the new counsel didn’t appear before the
court, and there was no guarantee that the new counsel would
take the case even if the money did materialize. Moreover, like
the district judge in Sinclair, the judge here properly recog-
nized that granting a continuance on the morning of trial
would impose costs on jurors, witnesses, and the court.
To be sure, Fox had previously sought new counsel several
times in the months leading up to trial. These requests, how-
ever, were always followed by waffling. Fox changed his
mind several times about whether he wanted new counsel,
and when he was warned at the final pre-trial hearing to hire
new counsel as quickly as possible, he decided a few days
later to proceed with the original trial date anyway. The judge
heard no more on the subject of new counsel until the morn-
ing of trial, so she was entitled to treat the motion as if it were
an eleventh-hour request. In effect, that’s what it was. Sinclair
counsels that such a request is properly denied when the plan
to hire new counsel is too speculative and no new counsel ac-
tually appears before the court.
In Sellers, on the other hand, the defendant sought a con-
tinuance for the same reason several times in the weeks lead-
ing up to trial, that reason was legitimate, and the defendant
8 No. 16-2892
showed up the morning of trial with his newly retained coun-
sel. The court denied the motion for a continuance even
though it knew that the defendant’s original choice of counsel
had been frustrated, his secondary counsel had performed
poorly, and new counsel was present and ready to take the
case. All of those factors counseled in favor of granting a con-
tinuance. None exists in this case.
We conclude that the district court was well within its dis-
cretion to deny Fox’s last-minute motion for a continuance.
The judge properly weighed the reasons for and against
granting relief and reasonably concluded that a continuance
was not warranted. Therefore, we affirm the denial of the mo-
tion. Fox is not entitled to a new trial.
B. Issues Raised for Preservation
Fox raises two arguments that he admits are foreclosed by
controlling precedent, but seeks to preserve them for Su-
preme Court review. First, he argues that the indictment in
this case was insufficient because it did not refer to the 25-year
mandatory add-on sentence for a second or subsequent con-
viction for using a firearm in a crime of violence. 18 U.S.C.
§ 924(c)(1)(C)(i). Our decision in United States v. Cardena, 842
F.3d 959, 1000 (7th Cir. 2016), is conclusive on that point. We
observed there that the Supreme Court’s decision in Al-
mendarez-Torres v. United States, 523 U.S. 224, 244–47 (1998),
“held that recidivism is not an ‘element’ of an offense, and so
it need not be found by a jury.” Because the recidivism add-
on is not an element of the predicate offense, it did not have
to be included in the indictment. See Fed. R. Crim. P. 7(c)(1)
(“The indictment or information must be a plain, concise, and
No. 16-2892 9
definite written statement of the essential facts constituting
the offense charged ....”). 2
Second, Fox argues that Hobbs Act robberies are not
“crimes of violence” under 18 U.S.C. § 924(c)(3)(A). We held
otherwise earlier this year in United States v. Anglin, 846 F.3d
954, 965 (7th Cir. 2017), vacated on other grounds by 138 S. Ct.
126 (2017). Our sister circuits which have confronted the ques-
tion agree. United States v. Gooch, 850 F.3d 285, 292 (6th Cir.
2017); United States v. Hill, 832 F.3d 135, 140–44 (2d Cir. 2016);
In re St. Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016); United States
v. Howard, 650 F. App’x 466, 468 (9th Cir. 2016). We reaffirm
today that Hobbs Act robberies are crimes of violence under
Section 924(c)(3)(A). Therefore, we affirm Fox’s conviction.
C. Sentencing
Although we decline to disturb Fox’s conviction, we con-
clude that a remand for resentencing is appropriate in light of
2 We recognize, as we have before, that “there is some tension between
[Alleyne v. United States, 133 S. Ct. 2251 (2013)] and Almendarez-Torres,” but
that tension is “for the Supreme Court to resolve.” See United States v. Lo-
max, 816 F.3d 468, 477–78 (7th Cir. 2016). Alleyne held that any fact that
increases the mandatory minimum sentence is an “element” of a crime
rather than a “sentencing factor,” and therefore must be found by a jury.
Alleyne, 133 S. Ct. at 2155. And even before Alleyne, we had suggested that
Almendarez-Torres is “vulnerable to being overruled.” See United States v.
Elliott, 703 F.3d 378, 381 n.2 (7th Cir. 2012); United States v. Browning, 436
F.3d 780, 782 (7th Cir. 2006). So Almendarez-Torres may be on its last legs.
See Shepard v. United States, 544 U.S. 13, 27 (2005) (Thomas, J., concurring
in the judgment) (“Almendarez-Torres ... has been eroded by this Court's
subsequent Sixth Amendment jurisprudence, and a majority of the Court
now recognizes that Almendarez-Torres was wrongly decided.”). But “the
continued authority of Almendarez-Torres is not for us to decide.” Brown-
ing, 436 F.3d at 782.
10 No. 16-2892
Dean v. United States, 137 S. Ct. 1170 (2017). The parties agree
on this point. Dean abrogated prior Seventh Circuit precedent
that required district courts to “determine the proper sentence
for the [predicate offenses] entirely independently of the sec-
tion 924(c)(1) add-on.” United States v. Roberson, 474 F.3d 432,
437 (7th Cir. 2007). In other words, before Dean, district courts
had to sentence defendants for predicate offenses as if the sig-
nificant add-on sentence did not exist. Now, in fashioning a
just sentence, the court may take into account the mandatory
384-month add-on to Fox’s sentence for the two robberies. Be-
cause this may result in a less severe sentence, we vacate Fox’s
sentence and remand the case for resentencing.
III. Conclusion
For the reasons stated above, we conclude that the district
court did not abuse its discretion by denying Fox’s motion for
a continuance to find new counsel on the morning of trial.
Therefore, we AFFIRM his conviction. However, we VACATE
Fox’s sentence and REMAND this case for resentencing in
light of the Supreme Court’s decision in Dean.