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A bank robbery sentence that “far exceeds” the statutory minimum must be revisited, the 7th Circuit Court of Appeals has ruled in vacating the sentence.
Defendant-appellant Tyree White and several others committed multiple armed robberies in Indianapolis in 2017. White was the organizer and lookout while the others carried out the holdups.
The group robbed a bank and two cellphone stores and were attempting to rob a Verizon store when undercover detectives stopped them.
White was charged with three counts of conspiracy to commit robbery and one count of conspiracy to commit armed bank robbery. He pleaded guilty to all four charges, and the Indiana Southern District Court accepted the Sentencing Guidelines calculations in the presentencing report.
The calculations produced an advisory sentencing range of 97 to 121 months. The judge imposed four concurrent 108-month terms.
On appeal, White challenged his sentence on two grounds. First, he claimed the nine-year prison term for the bank robbery conspiracy conviction exceeded the applicable statutory maximum.
The 7th Circuit agreed.
“Because White’s 108-month sentence on the bank-robbery conspiracy conviction clearly exceeds the applicable statutory maximum, it is unlawful,” Chief Judge Diane Skyes wrote. “The judge must impose a new sentence on that count. Though she has the discretion to restructure the entire sentence, she is not required to do so.”
Second, White challenged two applications of the guidelines enhancement for physically restraining a victim “to facilitate commission” of a robbery.
The court found that the physical-restraint enhancement was properly applied to one of the robbery-conspiracy counts because during the bank robbery, one of White’s accomplices grabbed a bank manager by his shirt and led him to the lobby at gunpoint. That counts as physical restraint, the 7th Circuit ruled.
But when they were robbing one of the cellphones stores, an accomplice ordered an employee to move while holding a gun. That did not count as physical restraint.
“This error alone was harmless, however; it did not alter the applicable Guidelines range,” Sykes wrote. “So, while the judge may revisit and restructure the entirety of White’s sentence on remand, she must impose a new sentence only on the bank robbery conspiracy count.”
The court vacated thus White’s sentence and remanded for resentencing.
“We are particularly inclined to vacate White’s sentence because, as we’ve explained, the judge made her sentencing decision based in part on the mistaken assumption that the bank-robbery conspiracy count was subject to a statutory maximum of 25 years, while the other three counts were subject to a 20-year maximum,” Skyes wrote. “… Had she known that the maximum sentence for the bank-robbery conspiracy count was in fact only five years, she might have chosen a lesser sentence overall.”
The case is United States of America v. Tyree J. White, 21-2296.
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