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United States v. Cook

United States Court of Appeals, Seventh Circuit

March 7, 2017

United States of America, Plaintiff-Appellee,
v.
Anthony D. Cook, Defendant-Appellant.

          Argued December 8, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14-CR-226 - J.P. Stadtmueller, Judge.

          Before Manion, Kanne, and Hamilton, Circuit Judges.

          Kanne, Circuit Judge.

         Anthony Cook participated in an armed robbery of a Community Financial Service Center ("CFSC") in Milwaukee. He pled guilty to obstruction of commerce by robbery and to brandishing a firearm during the commission of a crime of violence. Over Cook's objection, the district court applied two enhancements to his sentence: a 2-level increase for causing a loss to a financial institution and a 2-level increase for physically restraining a per- son during a robbery. On appeal, Cook argues that the district court erred in applying those enhancements. We disagree, so we affirm.

         I. Background

         On January 6, 2013, Cook and three others-Coleman Ferrell, Claudene Rutledge, and Vernell Staten-robbed a CFSC in Milwaukee. Ferrell entered the CFSC and tackled the security guard to the ground. Ferrell drew his firearm and pointed it at the guard's face, threatening to shoot. Cook then entered wearing a mask and approached the teller, Rutledge, who was in on the robbery. Rutledge promptly opened the door to the safe, and Cook took approximately $337, 100 in cash. He placed the cash in a plastic garbage bag. Cook and Ferrell then fled the scene with the cash in a getaway vehicle driven by Staten.

         On December 2, 2014, a grand jury returned a three-count indictment against Cook. Count one charged him with conspiracy to obstruct commerce by robbery in violation of 18 U.S.C. §§ 1951(a) and 2. Count two charged him with obstruction of commerce by robbery in violation of 18 U.S.C. §§ 1951(a) and 2 ("Hobbs Act Robbery"). And count three charged him with brandishing a firearm during the commission of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Cook and the government entered into a plea agreement, in which Cook agreed to plead guilty to counts two and three, and the government agreed to dismiss count one.

         The plea agreement also included a recommended sentencing guidelines calculation for count two. Cook and the government agreed that the base offense level for the offense charged in count two was 20 under U.S.S.G. § 2B3.1(a). They further agreed to recommend a 3-level increase under § 2B3.1(b)(7)(D) for a loss of over $250, 000 and a 3-level decrease under §§ 3El.l(a) and (b) for acceptance of responsibility. The government also recommended two additional enhancements: (1) a 2-level increase under § 2B3.1(b)(1) for causing a loss to a financial institution and (2) a 2-level increase under § 2B3.1(b)(4)(B) for physically restraining a person during a robbery. Both of these additional enhancements were included in the plea agreement's calculation, but with the disclaimer that Cook "may oppose the government's recommendation" as to these enhancements. (R. 35 at ¶¶ 17, 18.) The plea agreement thus recommended an adjusted total offense level of 24 for count two.

         The probation office then completed a presentence investigation report ("PSR"), which included its own guidelines calculation. The probation office's calculation mirrored the calculation in the plea agreement, recommending an adjusted total offense level of 24 for count two.

         At the sentencing hearing, Cook objected to the two additional enhancements included in the plea agreement and the PSR. First, he argued that the CFSC was not a financial institution under § 2B3.1(b)(1). Second, he argued that imposing the physical-restraint enhancement under § 2B3.1(b)(4)(B) would result in impermissible double counting of the same relevant conduct. The district court rejected each of these arguments and applied the guidelines calculation included in the plea agreement and the PSR. Based on Cook's criminal history category of IV and his adjusted offense level of 24, the district court determined that the recommended guidelines range for count two was 77 to 96 months. The court further determined that count three carried a mandatory minimum of 84 months' imprisonment. The court sentenced Cook to a below-guidelines sentence of 60 months on count two and 84 months on count three, to be served consecutively. Additionally, the court imposed a five-year term of supervised release and ordered that Cook pay $337, 100 in restitution.

         II. Analysis

         On appeal, Cook argues that the district court improperly applied the financial-institution and physical-restraint enhancements. We review de novo the district court's application of the sentencing guidelines. United States v. Lewis, 842 F.3d 467, 476 (7th Cir. 2016). We begin with Cook's arguments regarding the financial-institution enhancement under § 2B3.1(b)(1) and conclude with his arguments regarding the physical-restraint enhancement under § 2B3.1(b)(4)(B).

         A. ...


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