United States v. Collins, Adam C.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 3, 2005
Decided December 22, 2005
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 03-3886
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District
of Indiana, Indianapolis Division.
v.
No. 02 CR 123
ADAM C. COLLINS,
Defendant-Appellant. David F. Hamilton,
Judge.
ORDER
Adam Collins was found guilty of armed bank robbery, 18 U.S.C. § 2113(a),
(d), and use of a firearm during the robbery, id. § 924(c), and was sentenced to
consecutive terms totaling 223 months’ incarceration—68 months above the high
end of the combined guidelines range for the two offenses. Collins argues in this
appeal that 223 months is unreasonably long. We conclude otherwise and,
accordingly, affirm the judgment.
I.
Collins and two other men robbed an Indiana branch of National City Bank,
waving guns at the employees and customers and threatening to kill anyone who
moved. On Count One—armed bank robbery—the probation officer recommended a
total offense level of 23 and a criminal history category of III; the resulting
guidelines imprisonment range was 57 to 71 months. The recommended guidelines
No. 03-3886 Page 2
term for Count Two—brandishing a firearm during the holdup—was 84 months to
run consecutively, the same as the mandatory statutory minimum, see 18 U.S.C.
§ 924(c)(1)(A)(ii). But the district judge imposed a term of 105 months on Count
One and a consecutive term of 118 months on Count Two for a total of 223 months,
exceeding by 68 months the combined guidelines maximum of 155 months.
The judge moved above the high end of the guidelines range principally
because he concluded that Collins’s criminal history category underrepresents the
seriousness of his criminal history and the likelihood of recidivism. See U.S.S.G.
§ 4A1.3. That determination rests in part on the fact that Collins received no
criminal history points for a robbery and an unrelated auto theft he committed
approximately nine years before the bank robbery, when he was 15. Neither of
these juvenile offenses factored into Collins’s criminal history score because of his
age when he committed the crimes and the length of time between those offenses
and the crimes here. The court observed that had Collins been an adult when he
committed the uncounted juvenile robbery, he would have qualified as a career
offender because he also had accumulated a countable conviction for aggravated
battery. The court noted that since a career offender is automatically placed in
criminal history category VI, Collins would have faced at least 25 years under the
guidelines had his juvenile robbery offense counted towards his criminal history
score. The district judge also emphasized that Collins’s long-time gang affiliation,
his repeated instances of misconduct and violent behavior during previous periods
of confinement, and his overall pattern of criminal conduct since the age of 14
elevated his potential for recidivism beyond that reflected in his criminal history
category as calculated. Finally, the court reasoned that the guidelines did not
adequately take into account that Collins and his fellow bank robbers were violent
and extremely dangerous, and had so “terrorized” the bank employees and patrons
that they “will never forget that day.”
II.
Collins was sentenced before the Supreme Court decided United States v.
Booker, 125 S. Ct. 738 (2005). In this court he first argues that Booker compels
resentencing because his prison terms were increased, under a mandatory
guidelines system, based on facts neither admitted by him nor found by a jury
beyond a reasonable doubt. But Collins did not preserve this issue at sentencing, so
the relevant question is whether United States v. Paladino, 401 F.3d 471 (7th Cir.
2005), requires a limited remand. A remand under Paladino is necessary when we
cannot tell from the record whether the sentencing court would have imposed a
lower sentence had it known the guidelines were merely advisory. Id. at 483. But
because moving above the high end of the guidelines range is not mandated by the
guidelines and instead is the result of judicial discretion similar to that possessed
under an advisory scheme, United States v. Cunningham, 405 F.3d 497, 504
(7th Cir. 2005), the nature of the sentence in this case evidences that the district
No. 03-3886 Page 3
judge would have been unlikely to sentence lower under an advisory guidelines
scheme, see United States v. Johnson, 427 F.3d 423, 429 (7th Cir. 2005); United
States v. Stewart, 411 F.3d 825, 828-29 (7th Cir. 2005); Cunningham, 405 F.3d at
504; United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005). Although a sentence
above the guidelines range does not absolutely foreclose a Paladino remand, see
United States v. Long, 425 F.3d 482, 488-89 (7th Cir. 2005), here the judge carefully
considered the sentence increase, and we see nothing about this case that
distinguishes it from Johnson, Stewart, Cunningham, or Lee. A Paladino remand is
not necessary because we are not “left in a fog,” see Lee, 399 F.3d at 866, as to what
the district judge would have done with extra sentencing discretion.
Collins next argues that his prison sentences should be vacated because the
district judge, in fashioning the terms, relied on the probation officer’s factual
descriptions of his juvenile offenses rather than limiting his review to the statutory
elements of those prior adjudications. The judge found that Collins would have
qualified as a career offender if his juvenile adjudications had counted toward his
criminal history, but Collins argues that the district judge could not have made this
determination without looking at the factual descriptions of those juvenile crimes.
To qualify as a career offender, a defendant must have at least two prior felony
convictions for either a crime of violence or controlled substance offense. U.S.S.G.
§ 4B1.1. In determining whether the defendant’s prior convictions qualify, courts
are limited to examining “‘the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.’” See United States v. McGee, 408 F.3d 966,
988 (7th Cir. 2005) (quoting Shepard v. United States, 125 S. Ct. 1254, 1257 (2005)).
We have approved the use of a categorical approach in identifying crimes of
violence. United States v. Lewis, 405 F.3d 511, 513-14 (7th Cir. 2005). Here,
Collins committed “robbery” when he was 15 and “aggravated battery” when he was
17, and both of these offenses are categorically “crimes of violence.” U.S.S.G. §
4B1.2, cmt. n.1; see, e.g., United States v. Alvarenga-Silva, 324 F.3d 884, 886 (7th
Cir. 2001).
What remains is the reasonableness of the total term of imprisonment. Our
pre-Booker methods of analyzing a “departure” above the guidelines range are no
longer controlling. Johnson, 427 F.3d at 426. And though we have suggested that
one useful gauge of the overall reasonableness of a sentence is whether it would
have been sustained under our pre-Booker methodology, see United States v. Castro-
Juarez, 425 F.3d 430, 434 (7th Cir. 2005), we are not persuaded by Collins’s
argument that the prison terms as fashioned by the district court in this case could
not have been upheld as would upward departures before Booker. See United States
v. Croom, 50 F.3d 433, 435 (7th Cir. 1995) (though defendant was not career
criminal, juvenile offenses could be considered as pattern of recidivism to depart in
direction of career offender status).
No. 03-3886 Page 4
The district court recounted details of Collins’s bank robbery and concluded
that the incident was violent and terrifying for the customers and bank employees
who witnessed it. See 18 U.S.C. § 3553(a)(1), (a)(2)(a). The court reasoned that the
violent nature of the episode justified increasing Collins’s sentence beyond the
guidelines range because while the recommended sentence is premised on a bank
robbery in which no victim was physically injured, the calculated range did not
account for Collins’s dangerous behavior during the offense or the extent of the
psychological impact on the victims. The judge also considered Collins’s background
and justified the increase based on his prior gang affiliation, see 18 U.S.C.
§ 3553(a)(1); United States v. Melgar-Galvez, 161 F.3d 1122, 1124 (7th Cir. 1998),
his prior history of violence while in custody, and his overall pattern of criminal
behavior, see 18 U.S.C. § 3553(a)(2)(b)-(d); United States v. Peterson, 256 F.3d 612,
615 (7th Cir. 2001). The district judge recognized that Collins’s behavior pattern
increased the likelihood that he would continue to “commit further crimes in the
future,” and concluded that increasing the overall length of his imprisonment was
necessary to protect the public. See 18 U.S.C. § 3553(a)(2)(c). Accordingly, the
court adequately related its reasons for imposing a total term of imprisonment
above the guidelines range to factors specified in § 3553(a), see United States v.
Dean, 414 F.3d 725, 729 (7th Cir. 2005); Johnson, 427 F.3d at 426, and we are
convinced that the overall sentence is reasonable.
AFFIRMED.