Men convicted in 70s-themed armed robberies lose resentencing appeal

Two men who committed a string of armed robberies in 2015 while donning 1970s-themed disguises could not convince the 7^th Circuit Court of Appeals that their new sentences should be reversed.

Duprece Jett, Damion McKissick and another individual were charged with conspiracy and attempted bank robbery after robbing three cash-and-check stores in the Indianapolis area over a four-month period in 2015, all while dressed in 1970s-themed apparel. Both Jett and McKissick were sentenced to 293 months in prison, received a three-year supervised release and were ordered to pay restitution. McKissick specifically was ordered to pay $137,427.03.

Duprece and McKissick appealed, raising several challenges to purported errors in the Indiana Southern District Court, insufficient evidence, jury instructions and the admission of certain expert and lay testimony. The 7^th Circuit reversed the men’s attempted robbery convictions for lack of evidence but affirmed their remaining convictions and ordered them to be resentenced.

At resentencing, the Southern District sentenced both defendants to 230 months’ imprisonment, which they appealed in USA v. Duprece Jett and Damion McKissick, 19-1622 & 19-1673.

First, the 7^th Circuit addressed the men’s contention that the district court erred under the guidelines by using a preponderance-of-the-evidence standard, not the higher beyond-a-reasonable-doubt standard, to decide whether they conspired to commit the “object offenses” of the conspiracy. Although it agreed that the district court erred, the 7^th Circuit concluded the error was harmless because the court made clear it would have imposed the same sentence on each defendant even if the higher reasonable-doubt standard applied.

“On this record, the district court’s error was harmless as to both defendants. The court’s comments at the initial sentencings and the resentencings, along with the overwhelming strength of the evidence against both defendants, convince us that remanding for the court to reconsider, under the reasonable-doubt standard, whether the defendants committed each of the underlying overt acts would be a ‘pointless’ exercise,” Circuit Judge Amy St. Eve wrote for the panel.

As to the district court’s sentencing explanation, the 7^th Circuit found no error.

The panel first found the defendants’ reliance on United States v. Ballard, 950 F.3d 434 (7th Cir. 2020), did not support their position but rather “strongly undercuts it.” It likewise found that beyond Ballard, the defendants provide no authority for their argument that the district court had to give them the same sentences on Count 1 at resentencing or explain the difference.

“Put simply, there is no legal basis for the defendants’ argument that the district court had to give them the same sentences on Count 1 at resentencing or explain the difference. The district court did not err by failing to explain why the defendants’ new sentences on Count 1 did not match their initial sentences on Count 1,” St. Eve concluded.