In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3260
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K EVIN A. D ORTCH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 07 CR 136—Rudy Lozano, Judge.
A RGUED O CTOBER 21, 2010—D ECIDED D ECEMBER 23, 2010
Before E ASTERBROOK, Chief Judge, and M ANION and
H AMILTON, Circuit Judges.
M ANION, Circuit Judge. Kevin Dortch robbed a bank
in Munster, Indiana, and then led police on two high-
speed chases through the nearby residential neighbor-
hoods. He eventually pleaded guilty and was sentenced
to the statutory maximum of 240 months’ imprisonment.
He appeals only his sentence. We affirm.
2 No. 09-3260
I.
On September 14, 2007, Kevin Dortch walked through
a Jewel-Osco drugstore in Munster into the TCF Bank
located inside. He was not wearing a disguise. He
handed one of the tellers a note that stated:
I have a gun. Please give me the money out of your
drawers. No dye pack. I will be forced to do any-
thing that gets in my way. Nod your head if you
understand. You have 30 seconds. Don’t push alarm
or else.
The teller stacked about $9,000 on the counter and
Dortch quickly left the store. Following him outside
on the pretext of a smoke break, the bank manager
called the Munster Police Department and gave a des-
cription of Dortch’s blue Ford Escape SUV. Three or
four police vehicles responded, and Dortch led them
on a high-speed chase through the neighborhoods.
The entire chase was caught on video.
The police chased Dortch for several blocks, across the
state line into Lansing, Illinois, before Dortch crashed
into an attached garage at the end of a cul-de-sac. The
SUV engine began to smoke, and Dortch used that as
cover to escape over the roof of the single-story garage,
leaving the money and the note behind. Dortch fled on
foot through back yards until he climbed into an SUV
stopped at a traffic light. He ordered the woman inside
to drive. Fortunately for everyone involved, the driver
was alone in the car and immediately leaped from
the vehicle.
No. 09-3260 3
Dortch slid into the driver’s seat as police officers
approached the SUV with guns drawn, and another
police SUV pulled in front to prevent Dortch from es-
caping. Rather than surrender, Dortch rammed the car-
jacked SUV into the passenger side of the police SUV,
knocking it out of the way, and continued his flight
for several more blocks. Finally, he lost control of the
vehicle turning into an alley and crashed into a de-
tached garage.
Police converged on the garage with weapons drawn.
When Dortch refused to come out, the police fired
tasers into the garage in an attempt to subdue him. The
garage caught fire, but Dortch continued to refuse to
leave the garage. Because the police were not yet sure
whether anyone else was in the carjacked vehicle, they
entered the garage. While attempting to apprehend
Dortch and search the garage, one officer, Sergeant
Kovacik, cut his hand on glass, necessitating 16 stitches;
two others, Officers Huckaby and Cooley, were exposed
to potentially dangerous smoke in the burning garage.
Officer Huckaby spent two days in the hospital as a
result. Dortch eventually emerged from the garage and
was arrested.
Dortch was indicted on a single count of bank robbery
in violation of 18 U.S.C. § 2113(a) and pleaded not
guilty. Eight months later, on the morning his trial was
scheduled to begin, Dortch changed his mind and
pleaded guilty, without a plea agreement. The district
court accepted the plea. The court held three sen-
tencing hearings over a period of four months. The gov-
4 No. 09-3260
ernment presented evidence in the form of photo-
graphs, video footage, and testimony from one of the
police officers involved in the case and an FBI agent.
Munster police officer Trisia Fichter testified that
Officer Huckaby told her that he had spent two days in
the hospital for observation, but Officer Fichter could
not identify any tests or treatment performed. The gov-
ernment did not provide any medical records or affi-
davits from any of the medical staff who encountered
Officer Huckaby during his stay.
Based on Dortch’s criminal history and numerous
sentencing enhancements for his conduct during the
robbery and the chase that followed, the district court
calculated a guidelines range of 292 to 365 months of
imprisonment. The court sentenced Dortch to the stat-
utory maximum of 240 months, noting that he also be-
lieved that the maximum sentence was a fair sentence.
Dortch appeals his sentence.
II.
Dortch argues that the district court erred procedurally
in calculating his guidelines range, but does not chal-
lenge the substantive reasonableness of the sentence.
Dortch raises three purported errors. First, he argues
that the court erred in applying a two-level enhance-
ment for a death threat based on the note he gave the
bank teller. Second, he argues that the court erred by
enhancing his sentence twice for the same underlying
conduct: first, by two levels for his reckless flight and
second, by an additional six levels for assaulting a
No. 09-3260 5
police officer by ramming a police vehicle during the
same flight. Third, he argues that the hearsay testimony
from Officer Fichter regarding Officer Huckaby’s stay
in the hospital was insufficient to support a four-level
increase for “serious bodily injury” as defined in the
guidelines.
We review the district court’s application of the guide-
lines de novo, and its underlying factual findings for
clear error. United States v. Munoz, 610 F.3d 989, 992
(7th Cir. 2010). Dortch’s first two arguments merit
little discussion. We have held that the mere statement
that a bank robber has a gun can, in context, constitute
a threat of death, and here there was considerably
more. United States v. Carbaugh, 141 F.3d 791, 794 (7th Cir.
1998). And applying multiple enhancements based on
the same flight from police is perfectly permissible so
long as the enhancements relate to different aspects of
the defendant’s conduct. United States v. White, 222 F.3d
363, 376 (7th Cir. 2000). Here, Dortch received one en-
hancement for his initial high-speed chase, another for
carjacking the second car, and a third for assaulting
the police officer blocking his second escape attempt.
The final issue does raise some questions. Application
note 1 in the commentary to Sentencing Guidelines § 1B1.1
defines “serious bodily injury” in part as “injury . . .
requiring medical intervention such as surgery, hospit-
alization, or physical rehabilitation.” The government
argues that under this text it only needs to show that
someone was “hospitalized” in order to establish a
“serious bodily injury,” and that Officer Fichter’s testi-
6 No. 09-3260
mony establishes this. Dortch contends that Officer
Fichter’s testimony is “unreliable hearsay” and that even
if believed it is insufficient to establish serious bodily
injury.
We are not concerned with reliability: there is nothing
inherently unreliable about Officer Fichter’s testimony
that Officer Huckaby told her that he spent two days in
the hospital because of smoke inhalation. Officer
Fichter’s testimony established that Officer Huckaby
was at the hospital for precautionary observation. But
did it establish that there was an actual injury, rather
than merely the risk of an injury, from Officer Huckaby’s
smoke inhalation? And even if there was an injury, did
Officer Fichter’s testimony establish that a physician’s
evaluation of the injury, and not some city policy or
collective bargaining agreement, was the reason for the
overnight stay in the hospital?
This court has not addressed whether hospitalization
for precautionary observation because of the risk of
serious injury, rather than because of an actual injury,
is sufficient for serious bodily injury. Fortunately, we
do not need to resolve the issue here on this rather
sparse record because any error would ultimately be
harmless in that it “did not affect the district court’s
selection of the sentence imposed.” United States v. Ander-
son, 517 F.3d 953, 965 (7th Cir. 2008) (quoting Williams
v. United States, 503 U.S. 193, 203 (1992)). No one
seriously disputes that there was at least one “bodily
injury” in this case—the uncontested evidence that Ser-
geant Kovacik had lacerations on his hand requiring
No. 09-3260 7
16 stitches establishes as much. Even if the govern-
ment could not, in the end, establish Officer Huckaby’s
serious bodily injury, Dortch’s offense level under the
guidelines would only drop by two (the difference between
the bodily injury and serious bodily injury enhance-
ments). This would result in a guidelines range of 235
to 293 months. As even Dortch’s counsel acknowledged
at oral argument, this reduction would not have
affected the district court’s sentence in any way: the
success of the appeal depended on the cumulative effect
of his other, unsuccessful, arguments. The district court
noted that it felt that the 240-month statutory maxi-
mum sentence was a fair sentence in this case, and there
is no indication that the fact that this may have been
toward the low end of, rather than below, the proper
guidelines range would have made any difference.
We are confident that, were we to remand this case
for resentencing, the district court would impose the
same sentence regardless of whether it found that
Officer Huckaby suffered serious bodily injury.
Even though any error is harmless, it is a situation
that could have easily been avoided. Nothing in the
record discloses the reason for Officer Huckaby’s stay in
the hospital and the treatment he received while there.
The government could have easily answered this ques-
tion with copies of relevant medical records or even
a simple affidavit from the treating physician indicating
that he ordered Officer Huckaby’s hospitalization on
account of injuries sustained due to smoke inhalation.
Even if Officer Fichter’s testimony were enough to
support the district court’s finding on clear error review,
8 No. 09-3260
the government should not expect this court to rely on
such weak evidence when conclusive proof is so readily
available.
III.
Because any error below was harmless, the sentence
is A FFIRMED.
12-23-10