In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1721
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
W AYNER D. B LACK,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:09-cr-00108-bbc-1—Barbara B. Crabb, Judge.
A RGUED D ECEMBER 1, 2010—D ECIDED M ARCH 7, 2011
Before
B AUER and P OSNER, Circuit Judges, and
P ALLMEYER, District Judge.
B AUER, Circuit Judge. Defendant-appellant Wayner D.
Black pleaded guilty to bank robbery by use of a
dangerous weapon in violation of 18 U.S.C. § 2113(a)
and (d). The district court, guided by recommendations
in the presentence investigation report (“PSR”), applied
The Honorable Rebecca R. Pallmeyer, United States District
Court for the Northern District of Illinois, sitting by designation.
2 No. 10-1721
several sentence enhancements and sentenced Black to
262 months’ imprisonment. On appeal, Black challenges
his career offender enhancement, physical restraint en-
hancement, and denial of an acceptance of responsibility
adjustment. For the following reasons, we affirm the
district court’s enhancement findings and sentence.
I. BACKGROUND
On July 24, 2009, defendant-appellant Black and
three accomplices—Marty Taylor, Arlandis Issac, and
Larry Price—each wearing a mask and wielding a
firearm, robbed the Amcore Bank of Madison, Wisconsin.
During the robbery, Issac forced a bank teller at gun-
point to move to various places in the bank, and, at
some point, forcefully pushed his gun to the back of the
teller’s head, causing minor injuries.
Black was arrested on July 30, 2009 after one of his
accomplices made statements implicating him. On
August 6, 2009, Black was charged in a two-count in-
dictment with bank robbery by use of a dangerous
weapon, in violation of 18 U.S.C. § 2113(a) and (d)
(Count One), and with brandishing a firearm during and
in connection with a crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (Count 2).
Black executed a plea agreement in which he agreed
to plead guilty to Count One and the government
agreed to move to dismiss Count Two. The probation
department prepared a PSR, which determined that
Black’s base offense level was 20. It also made the fol-
No. 10-1721 3
lowing recommendations: (1) a one-level enhancement
for taking more than $10,000 but less than $50,000; (2) a
two-level enhancement for taking the property of a finan-
cial institution; (3) a six-level enhancement for using
a firearm during the offense; (4) a two-level enhance-
ment for physical restraint of the teller; (5) a two-level
enhancement for bodily injury to the teller; and (6) a two-
level enhancement for obstruction of justice. The obstruc-
tive conduct consisted of Black asking his girlfriend to
dispose of the boots he wore during the robbery and
attempting to fabricate an alibi. Finally, the PSR identified
Black as a career offender based on the present felony
conviction for a crime of violence plus three prior felony
convictions for controlled substance offenses in Cook
County, Illinois. The PSR relied on arrest reports, charging
documents, orders, docket sheets, and certified state-
ments of conviction and found that Black had been con-
victed of possession with intent to deliver cannabis in
case number 1999-CR-09960, possession of a controlled
substance with intent to deliver in case number 1999-CR-
27233, and possession of a controlled substance with
intent to deliver in case number 2000-CR-11400.
Black filed objections to the PSR, contesting the en-
hancement for physical restraint, a portion of the ob-
struction of justice enhancement, and the finding that
he was a career offender. Black also argued that he
should receive a reduction for acceptance of responsi-
bility because he agreed to plead guilty and his case
presented “extraordinary circumstances.”
After a sentencing hearing, the district court judge
adopted the majority of the recommendations in the
4 No. 10-1721
PSR and made the following findings: (1) Black’s base
offense level was 20; (2) a six-level enhancement ap-
plied because Black and the other robbers were armed
during the offense; (3) a two-level enhancement applied
because the teller was physically restrained; (4) a one-
level enhancement applied because the defendant stole
more than $10,000 but less than $50,000; (5) a two-level
enhancement applied because of Black’s willful attempt
to obstruct justice; (6) a one-level enhancement applied
because Black was a career offender; and (7) Black did
not qualify for a three-level downward adjustment for
acceptance of responsibility.
The judge sentenced Black to 262 months in prison. Black
appeals the findings regarding the career offender en-
hancement, the physical restraint enhancement, and the
acceptance of responsibility rejection.
II. DISCUSSION
A. Career Offender Status
Black primarily argues that the district court erred in
classifying him as a career offender because there was
insufficient evidence to establish that his prior convic-
tions were qualifying offenses. We review de novo the
district court’s decision to classify Black as a career of-
fender. United States v. Kindle, 453 F.3d 438, 440 (7th Cir.
2006).
A defendant is classified as a career offender under
the Sentencing Guidelines and subject to an increased
No. 10-1721 5
offense level if he is at least eighteen years old at the
time of the offense of conviction, the offense of convic-
tion is a crime of violence or a controlled substance
offense, and the defendant has at least two prior con-
victions of either a crime of violence or a controlled
substance offense. U.S.S.G. § 4B1.1 (2002).
Black maintains that he produced evidence that called
into question the reliability of the information in the PSR,
the document upon which the district judge relied in
determining his career offender status, and therefore
the district court erred in applying the career offender
enhancement. A district court may rely on information
contained in a PSR so long as the report is well-supported
and appears reliable. United States v. Heckel, 570 F.3d
791, 795 (7th Cir. 2009); United States v. Mustread, 42 F.3d
1097, 1101-02 (7th Cir. 1994). A defendant may produce
evidence that questions the reliability or correctness of
the facts in the report, but he must do so beyond a
“bare denial” of the information. Mustread, 42 F.3d at
1102. Only when the defendant creates “real doubt” does
the burden then shift to the government to demonstrate
the accuracy of the information. United States v. Moreno-
Padilla, 602 F.3d 802, 809 (7th Cir. 2010).
Black admits that his prior conviction in case number
2000-CR-11400 qualifies, but disputes his two other
prior convictions—case number 1999-CR-09960 and case
number 1999-CR-27233—at least one of which must
qualify as a controlled substance offense to classify
Black as a career offender. In his initial objection to the
PSR and continuing through his sentencing hearing,
6 No. 10-1721
Black produced signed orders for each of the two
offenses at issue. He argues that the ambiguities in
those documents, namely illegible handwriting, call into
question the accuracy of the PSR. Black asserts that the
handwritten abbreviation indicating the charge in the
order for case number 1999-CR-09960 is impossible to
decipher and that the same is true for the records in
case number 1999-CR-27233. Black maintains that pro-
ducing these documents satisfied his requirement of
casting doubt upon the correctness of the charges in
the PSR and that the burden then shifted to the govern-
ment to demonstrate the accuracy of the PSR, which
he claims it failed to do.
We do not believe that Black ever created a real doubt
as to the accuracy of the information in the PSR. Black
states in his brief that the ambiguity in the orders leaves
open “the possibility” that he pleaded guilty to lesser
offenses that would not qualify as controlled substances
offenses under the Guidelines, but at no point did Black
ever allege that he was not convicted of the crimes
with which he was charged. Black’s unwillingness to
testify that he was not convicted of controlled substance
offenses while silently hiding behind “unclear hand-
writing” is suspect. We see no reason for a defendant
to submit evidence that is indirect to the issue when
Black himself could have produced direct evidence by
simply stating that he was not convicted of the crimes
with which he was charged or that he was actually con-
victed of a lesser offense. Black’s evasiveness fails to
meet the more than a “bare denial” requirement needed
to shift the burden back to the government, and we
No. 10-1721 7
need not address Black’s arguments regarding docu-
ments presented by the government to demonstrate the
accuracy of the PSR.
Black also argues that the district court erroneously
considered arrest reports and other documents cited in
the PSR when classifying him as a career offender. As
an initial matter, we find that Black did not waive this
objection below. Waiver is the intentional relinquish-
ment and abandonment of an argument. United States
v. Ortiz, 431 F.3d 1035, 1038 (7th Cir. 2005). While Black
may not have fully developed nor articulately pre-
sented the exact argument below, he did raise
the issue, citing to relevant authority in his sentencing
memorandum and attaching pertinent documents. He
thus did not intentionally forego the argument.
Nonetheless, Black has not convinced us that the
district court erred. Courts are required to take a categori-
cal approach in analyzing prior convictions, meaning
that a court is generally limited to considering the fact
of conviction and the statutory elements of the offense
when determining whether prior convictions classify
the defendant as a career offender.1 A district court is
therefore limited to examining “the statutory definition,
1
Shepard v. United States, 544 U.S. 13, 17 (2005) (citing Taylor
v. United States, 495 U.S. 575, 602 (1990)). Though Shepard’s
holding applied to the Armed Career Criminals Act and crimes
of violence, we have extended this holding to the Guidelines’
career offender provision. United States v. McGee, 408 F.3d
966, 988 (7th Cir. 2005).
8 No. 10-1721
charging document, written plea agreement, transcript
of plea colloquy, and any explicit factual finding made
by the trial judge to which the defendant assented.”
Shepard, 544 U.S. at 16. A district court may not rely
on facts about the crime of conviction from other
sources when making an enhancement determination,
and it may not rely on police reports. Shepard, 544 U.S.
at 16; United States v. Thigpen, 456 F.3d 766, 770 (7th Cir.
2006).
Black claims that the district court did not use the
categorical approach in analyzing his prior convictions
because the district court relied on the PSR, which
itself relied upon arrest reports and other background
documents. We addressed this issue in United States v.
Thigpen, a case that Black unsuccessfully attempts to
distinguish from his own. To determine whether the
defendant in Thigpen qualified as a career offender,
the district court similarly considered the defendant’s
PSR, which relied on police reports and other back-
ground documents. Thigpen, 456 F.3d at 770. We con-
cluded that each of the defendant’s prior crimes of
violence or controlled substances offenses qualified on
its face for a career offender enhancement and stated
that “[w]hile the PSR certainly contained more informa-
tion than merely the crimes of conviction, this would
only be a problem if the district court used these facts
to establish a crime of violence or controlled substance
offense.” Id.
The fact that Black’s PSR references underlying docu-
ments, such as arrest reports, does not create a Shepard
No. 10-1721 9
problem because each of Black’s prior controlled sub-
stance offenses qualifies him for career offender status
on its face. A controlled substance offense is defined in
the Guidelines as “an offense under federal or state
law, punishable by imprisonment for a term exceeding
one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or
a counterfeit substance) or the possession of a controlled
substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense.”
U.S.S.G. § 4B1.2(b) (2009). Black had three prior convic-
tions for possession of a controlled substance with
intent to deliver. A Shepard problem only arises when
a district court relies on facts in underlying documents
to establish a crime of violence or controlled substance
offense. We require courts to use a categorical approach
because resolving a factual dispute “would require a
trial within the sentencing hearing and if the result was
to increase the maximum punishment of the defendant
[it] would infringe his constitutional right to trial by
jury.” United States v. Aviles-Solarzano, 623 F.3d 470, 473
(7th Cir. 2010). A proper analysis occurs when the court
considers “whether the elements of the offense are of the
type . . . without inquiring into the specific conduct of
th[e] particular offender.” United States v. Woods, 576 F.3d
400, 403 (7th Cir. 2009) (quoting James v. United States,
550 U.S. 192, 202 (2007)). This is exactly what the
district court did in Black’s case.
Black attempts to argue that the district court should
not have attempted a categorical approach as the court
did in Thigpen because Black asserted that his convic-
10 No. 10-1721
tions were unclear. He argues that this dispute required
the court to look at underlying documents to resolve
the ambiguity and created a Shepard problem, and he
encourages the court to follow a modified categorical
approach. The modified categorical analysis, likewise
derived from Shepard, permits a court to look at other
documents in limited cases when a defendant’s convic-
tion is unclear only because the crime is defined in a
divisible statute. Shepard, 544 U.S. at 16-17; United States
v. Smith, 544 F.3d 781, 786 (7th Cir. 2008) (“When a
statute encompasses multiple categories of offense
conduct—some of which would constitute a violent
felony and some of which would not—we may expand
our inquiry into a limited range of additional material
in order to determine whether the jury actually con-
victed the defendant of (or, in the case of a guilty plea,
the defendant expressly admitted to) violating a portion
of the statute that constitutes a violent felony.”); see
United States v. Spells, 537 F.3d 743, 749 (7th Cir. 2008).
But the controlled substance statutes under which Black
was convicted are not divisible. The district court thus
could, and did, apply a categorical approach. For
these reasons, we find that the district court properly
applied the career offender enhancement.
B. Physical Restraint of a Victim
We review the question of whether the bank teller was
physically restrained, a matter of interpretation of the
Sentencing Guidelines, de novo. United States v.
Eubanks, 593 F.3d 645, 649 (7th Cir. 2010). Any factual
No. 10-1721 11
findings regarding the enhancement are reviewed for
clear error. Id.
Section 2B3.1(b)(4) of the Guidelines applies a sen-
tencing enhancement if a person is “physically re-
strained to facilitate the commission of the offense or
to facilitate escape.” U.S.S.G. § 2B3.1(b)(4) (2010). The
term “physically restrained” is defined as “the forcible
restraint of the victim such as being tied, bound, or
locked up.” U.S.S.G. § 1B1.1 cmt. n.1(K) (2010).
Black argues that Issac’s conduct—ordering and leading
the bank teller around at gunpoint—did not constitute
physical restraint because it is not similar enough to
the examples enumerated in the Guidelines.2 Black main-
tains the court should have followed the principle
derived from Begay v. United States that when Congress
or the Sentencing Commission have defined a term by
way of a list of examples, those examples serve as a
limitation on the definition. Begay v. United States, 553 U.S.
137, 143 (2008). Black thus argues that conduct does
not constitute physical restraint unless it is relatively
identical to the examples listed in defining the term,
specifically tying, binding, or locking up the victim. In
fact, we explicitly rejected the same argument from
Black’s accomplice Marty Taylor in United States v.
2
Black’s physical restraint enhancement is based on Issac’s
conduct, which is also relevant conduct of the defendant, and
is not at issue on appeal. See U.S.S.G. § 1B1.3(a)(1)(B) (2010).
12 No. 10-1721
Taylor,3 a decision that Black urges us to now overrule.
We decline to do so. While a statutory list of examples
can indicate the statute’s intended scope, the funda-
mental characteristic of the physical restraint enhance-
ment is to punish one for depriving a person of his free-
dom of physical movement, which can be accomplished
by means beyond those statutory examples. See Taylor,
620 F.3d at 814. We have found that “[w]hether a
pointed gun is used to move a person into an unlocked
room and keep him there, or used to move a person
from one part of the robbery scene to another, the
person’s freedom of movement is restrained as effec-
tively as by shoving or dragging him into a room and
locking the door.” Id. at 815 (citing United States v. Carter,
410 F.3d 942, 954 (7th Cir. 2005)). Today we reaffirm
United States v. Taylor and again find that Black’s accom-
plice’s actions during the robbery constitute physical
restraint. We affirm Black’s physical restraint enhance-
ment.
C. Acceptance of Responsibility
Black argues that he should have received a three-level
reduction in his base offense level for acceptance of
responsibility, despite receiving an obstruction of justice
3
United States v. Taylor, 620 F.3d 812 (7th Cir. 2010), involved
Marty Taylor, one of the four bank robbers in the present case.
We issued the decision, rejecting each of Taylor’s arguments
regarding an identical physical restraint enhancement and
upholding the enhancement, while Black’s appeal was pending.
No. 10-1721 13
enhancement, because extraordinary circumstances exist
in his case. We review a district court’s acceptance of
responsibility determination for clear error. United States
v. Booker, 248 F.3d 683, 690 (7th Cir. 2001).
A sentencing court may grant a defendant a two-
level downward adjustment under § 3E1.1(a) of the
Guidelines if the defendant “clearly demonstrates ac-
ceptance of responsibility for his offense.” The defendant
may receive an additional one-level downward adjust-
ment if his base offense level is 16 or higher and he
has “assisted authorities in the investigation or prosecu-
tion of his own misconduct by timely notifying author-
ities of his intention to enter a plea of guilty.” U.S.S.G.
§ 3E1.1(b) (2010). While an enhancement given by the
sentencing court under § 3C1.1 for obstruction of
justice does not automatically preclude a finding that
the defendant also accepted responsibility for his crime,
it generally suggests that the defendant has not
accepted responsibility for his crime. U.S.S.G. § 3E1.1
cmt. n.4; see United States v. Gonzalez, 608 F.3d 1001, 1007-
08 (7th Cir. 2010). This is a presumption that can be
rebutted by the defendant only in “extraordinary cases.” 4
4
U.S.S.G. § 3E1.1 cmt. n.4. The Sentencing Guidelines do not
define the phrase “extraordinary cases.” An example of an
extraordinary case can be found in United States v. Lallemand,
989 F.2d 936 (7th Cir. 1993), where the defendant directed
a friend to destroy evidence in the event that he was ever
arrested, but upon his arrest confessed immediately, con-
sented to a search of his home, and called the friend to tell
him not to destroy the evidence.
14 No. 10-1721
Black contends that his obstructive conduct was
minimal and is outweighed by the showing of his accep-
tance of responsibility. Black admits that he asked his
girlfriend to remove the boots he wore during the
robbery from his residence shortly after he was
arrested; however, he maintains that this was a futile
act because the FBI had already retrieved that evidence
before he attempted to hide it. Black argues that even
if he had successfully disposed of the boots, their
absence would have been of minor significance be-
cause the government had other evidence to use in its
case. Similarly, Black also contends that his attempt to
fabricate an alibi, which he contests was mischarac-
terized, was only minimally obstructive because there
was already evidence linking Black to the robbery.
Black argues that his acceptance of responsibility was
considerable because he entered into a plea agreement
with the government, willingly participated in some of
the investigation, did not falsely deny his conduct, and
did not further obstruct justice after his first attempt to
do so. We find these arguments unpersuasive. The fact
that Black failed in his attempt to conceal evidence
does nothing to convince us that the district court
clearly erred in determining that his case was not “extra-
ordinary.” We do not reward defendants for failed at-
tempts to obstruct justice. Moreover, pleading guilty does
not automatically entitle a defendant to a downward ad-
justment for acceptance of responsibility. U.S.S.G. § 3E1.1
cmt. n.3. Black’s conduct as a whole was inconsistent
with the acceptance of responsibility adjustment, and
we find that the district court did not err in denying
Black a downward adjustment.
No. 10-1721 15
III. CONCLUSION
For the foregoing reasons, we A FFIRM the district
court’s enhancement findings and Black’s sentence.
3-7-11