United States v. Durham

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 10-1308, 10-1328, 10-1660, 10-1753

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

H AL D URHAM, et al.,
Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 549—David H. Coar, Judge.

A RGUED M AY 4, 2011 — D ECIDED JUNE 28, 2011

Before E ASTERBROOK, Chief Judge, and F LAUM and S YKES,
Circuit Judges.
F LAUM, Circuit Judge. In July of 2008, defendant-appel-
lants Tony Callion, Hal Durham, Israel Collins, and
Sherman Swopes—along with two other individu-
als—kidnapped Charles Zachary for ransom because he
owed Callion drug money. In response to his kidnappers’
demands, Zachary said that his girlfriend, Luella Dorenzo,
could get the money from the TCF Bank where she
2 Nos. 10-1308, 10-1328, 10-1660, 10-1753

worked. Defendants, unaware that Dorenzo had contacted
law enforcement, arranged a ransom drop with her.
Shortly after obtaining the money, defendants were
arrested. They were charged in a three-count indictment
with (1) conspiracy to commit attempted bank robbery of a
federally-insured bank, in violation of 18 U.S.C. § 371;
(2) attempted bank robbery, in violation of 18 U.S.C.
§ 2113(a); and (3) knowingly using and carrying firearms
during and in relation to a crime of violence, in violation of
18 U.S.C. § 924(c). Collins and Swopes pled guilty
to Counts Two and Three. Callion and Durham went to
trial separately; each was convicted on Counts One and
Two, and acquitted on Count Three. All four defendants
challenge their sentences, and Callion and Durham chal-
lenge their convictions. For the following reasons, we
affirm, except as to Swopes’s sentence, which appears to
have been based in part on a factual misapprehension by
the district court. Consequently, we vacate Swopes’s
sentence and remand the case to the district court for
resentencing.

I. Background
Callion first proposed kidnapping Zachary (who is his
cousin) to Daniel Gibbs in June of 2008, explaining that
Zachary owed him drug money. According to Gibbs, the
original plan was to get a $75,000 ransom, half in drugs and
half in cash. Callion and Gibbs again discussed the kidnap-
ping at a Fourth of July barbeque at Durham’s house.
Natalie Hoisington (Gibbs’s girlfriend) and Durham
(Gibbs’s father) also participated in that conversation,
Nos. 10-1308, 10-1328, 10-1660, 10-1753 3

during which Callion told Gibbs to buy handcuffs and
duct tape.
On the evening of July 9, 2008, Callion called Gibbs and
told him that the kidnapping would happen that night. At
about 9:30 PM , Gibbs, Hoisington, Callion, and Durham
met at Durham’s house. Callion, Gibbs, and Hoisington
went out to find Zachary at around midnight or 1 AM.
Along the way, Callion recruited Collins and Swopes to
join them. All five went to Zachary’s house to wait for
him. When Zachary returned, Swopes and Collins abduc-
ted and handcuffed Zachary, and put him in the back of
the vehicle. The group then drove back to Durham’s house,
where they planned to hold Zachary. While the others
moved Zachary into the house, Gibbs accidentally dis-
charged a shell from the shotgun into the center console of
the vehicle.
Zachary was duct taped to a chair in a room off the
kitchen; duct tape was wrapped around his head to cover
his eyes. Callion and Durham proceeded to use force to
threaten and intimidate their hostage. Durham used an
unloaded .22 caliber revolver to play “Russian Roulette”
with Zachary, hit Zachary in the side of the head with the
revolver, fired a gun loaded with .22 caliber low velocity
power load ammunition at Zachary’s leg, and briefly
brought his pit bull into the room to scare Zachary. Callion
pulled up on Zachary’s toes with a wrench.
Callion knew that Zachary’s girlfriend, Luella Dorenzo,
worked at a bank. He had relayed that fact to Gibbs in May
2008, and mentioned it to the other defendants in the early
hours of July 10th after they abducted Zachary. However,
4 Nos. 10-1308, 10-1328, 10-1660, 10-1753

it was Zachary who, in response to defendants’ ransom
demands, first told Gibbs that he might be able to get the
money from Dorenzo. Gibbs told Callion, Durham,
Swopes, and Collins that Zachary said he would call his
girlfriend. In response, Callion told Gibbs that Zachary
should have Dorenzo get the money out of a safety deposit
box. When Gibbs relayed that message, Zachary told him
there was no safety deposit box, but that she could “get it
from the bank.” Gibbs informed the others of this, and
Callion said “ok.”
With Gibbs’s help, Zachary made a number of calls to
Dorenzo on his cell phone, but she did not pick up. While
trying to reach Dorenzo, Zachary suggested two other
possible sources of ransom money—a woman named
“Nellie” and a man named “Bob.” He placed several calls
to each of them early that morning as well. Between 6 and
7 AM, before Zachary first reached Dorenzo, Callion and
Durham drove to Nellie’s to try and get ransom money
from her. They were unsuccessful, but did not return to
Durham’s house until about 11 AM.
At 7:34 AM Zachary finally reached Dorenzo, who agreed
to get the money from the bank. Callion and Durham were
not there at that time, but Gibbs and Callion remained in
cell phone contact. When Callion learned that Dorenzo had
agreed to get the money, he told Gibbs where Dorenzo
should drop off the ransom.
At some point that morning, law enforcement arrived at
the TCF Bank where Dorenzo worked, and began recording
calls between Zachary’s cell phone and Dorenzo’s cell
phone. During one of those calls, Dorenzo explained that
Nos. 10-1308, 10-1328, 10-1660, 10-1753 5

it would be difficult for her to get out of the bank with the
money, saying, “I mean, this is a bank. It’s hard for me to
just walk out of here like that without them noticing
something.” By the time Callion and Durham returned to
the house, Dorenzo still had not gotten the money. Callion
instructed Gibbs to tell Dorenzo that they “weren’t playing
no more,” and that 12:30 PM was their last call. Shortly after
that call, Dorenzo left the bank with $40,220 in ransom
money provided by TCF Bank in a TCF-labeled bag. A
tracker device and four $20 pre-recorded bait bills were
also in the bag.
Durham retrieved the money. Back at his house, Durham
found the tracking device as he divided up the money.
Initially, he threw it in the neighbors’ yard, but then
instructed Hoisington to go get it and get rid of it. When
Hoisington went outside, she was stopped by officers.
Realizing that the police were there, Callion, Durham,
Gibbs, Swopes, and Collins grabbed the money and tried
to hide upstairs. They were arrested shortly thereafter.
The following morning, FBI Agent Christopher Crocker
interviewed Callion. At Callion’s trial, Crocker testified
that Callion admitted to planning the kidnapping
for ransom, and admitted believing that Dorenzo had a
key to the bank vault. According to Crocker, Callion also
said that, at one point, they demanded that Dorenzo take
all of the money in the bank vault.
Durham also gave a post-arrest interview, during which
he admitted to knowing that Zachary was being held in his
house, that ransom calls were being made to Zachary’s
girlfriend, that Zachary’s girlfriend worked at the TCF
6 Nos. 10-1308, 10-1328, 10-1660, 10-1753

Bank, and that the ransom amount had reached $40,000.
Durham also admitted that he picked up the bank bag
containing the money and tried to dispose of the tracking
device.
On October 9, 2008, a grand jury returned a three-count
indictment against all six participants, charging them with
conspiracy to commit attempted bank extortion of a
federally-insured bank, in violation of 18 U.S.C. § 371
(Count One); attempted bank extortion, in violation of 18
U.S.C. § 2113(a) (Count Two); and knowingly using
and carrying firearms during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c) (Count Three).
Gibbs and Hoisington pled guilty and became cooperating
witnesses.
Swopes pled guilty to Counts Two and Three on October
8, 2009. On March 12, 2010, he was sentenced to 170
months’ imprisonment on Count Two and 120 months’
imprisonment on Count Three, to be served consecutively.
Collins also pled guilty to Counts Two and Three. On
February 1, 2010, he was sentenced to 151 months’ impris-
onment on Count Two and 120 months’ imprisonment
on Count Three, to be served consecutively.
Callion and Durham chose to go to trial. Callion success-
fully moved to sever his trial from Durham’s. On October
28, 2009, a jury convicted Durham on Counts One and Two,
and acquitted him on Count Three. Durham was sentenced
to concurrent sentences of 60 months’ imprisonment on
Count One and 188 months’ imprisonment on Count Two
on February 1, 2010. On November 20, 2009, a jury simi-
larly found Callion guilty on Counts One and Two, and
Nos. 10-1308, 10-1328, 10-1660, 10-1753 7

acquitted him on Count Three. On March 5, 2010, Callion
was sentenced to concurrent sentences of 60 months’
imprisonment on Count One and 240 months’ imprison-
ment on Count Two. All defendants appeal their sentences;
Callion and Durham challenge their convictions as well.

II. Discussion
A. Questioning of Agent Crocker
As discussed below, Callion challenges the sufficiency of
the evidence supporting his convictions on Counts One
and Two. As part of those challenges, Callion contends that
the district court erred in allowing the government to elicit
a substantial portion of FBI Agent Crocker’s testimony
on direct examination by asking leading questions.
Callion’s counsel did not object to the line of questioning
at trial, and therefore this Court’s review is for plain error.
Under plain-error review, a defendant must show that
(1) there was error; (2) it was plain; (3) it affected his
substantial rights; and (4) the court should exercise its
discretion to correct the error because it seriously affected
the fairness, integrity or public reputation of the judicial
proceedings. United States v. Olano, 507 U.S. 725, 732-
35 (1993).
Rule 611(c) of the Federal Rule of Evidence provides that
“[l]eading questions should not be used on the direct
examination of a witness except as may be necessary
to develop the witness’ testimony,” or “[w]hen a party calls
a hostile witness, an adverse party, or a witness identified
with an adverse party.” Agent Crocker was neither hostile
8 Nos. 10-1308, 10-1328, 10-1660, 10-1753

nor adverse to the government—indeed, he was a govern-
ment witness. And the government did not limit itself to
developing parts of Crocker’s testimony via leading
questions; rather, prosecutors used leading questions to
elicit the bulk of Crocker’s substantive testimony regarding
Callion’s post-arrest statement.
The government maintains that it asked leading ques-
tions to ensure that Agent Crocker did not testify regarding
portions of Callion’s statement that the district judge had
ruled were inadmissible. Specifically, the district court had
granted the government’s motion in limine to admit
portions of Callion’s statement, not including statements
that were inadmissible as self-exculpatory hearsay state-
ments or irrelevant statements. According to the govern-
ment, it asked leading questions in an effort to avoid
violating the motion in limine.
We are not persuaded that an agent with more than six
years of experience, like Agent Crocker, requires the degree
of government guidance that occurred here. In United
States v. Meza-Urtado, 351 F.3d 301, 303 (7th Cir. 2003),
we suggested that the allowance of improperly leading
questions will rarely constitute plain error because, in
the face of a sustained objection, most lawyers can rephrase
a leading question to elicit the desired testimony. How-
ever, we recognize that valid concerns regarding the
overuse of leading questions exist. See United States
v. McGovern, 499 F.2d 1140, 1142 (1st Cir. 1974) (noting that
leading questions “may supply a false memory” in
a friendly witness); United States v. Durham, 319 F.2d
590, 592 (4th Cir. 1963) (same); Stine v. Marathon Oil Co.,
Nos. 10-1308, 10-1328, 10-1660, 10-1753 9

976 F.2d 254, 266 (5th Cir. 1992) (suggesting that leading
questions may inhibit the jury’s ability to “make credibility
determinations” if permitted in “controverted substantive
areas”). In light of those concerns, the government should
resist crossing the line from developing a witness’s testi-
mony to effectively testify for that witness. See Stine,
976 F.2d at 266.
But even if there may be the rare case in which leading
questions result in prejudice to a defendant, this is not that
case. Crocker’s typed report of the post-arrest interview
appears in the record, and is entirely consistent with his
testimony. Therefore, we have no doubt that if Callion’s
counsel had timely objected, the prosecutor could have
rephrased the questions to elicit the same testimony from
Agent Crocker.

B. Callion and Durham’s Sufficiency of the Evidence
Claims
1. Count Two
Both Callion and Durham contend that the government
presented insufficient evidence to support a guilty verdict
on Count Two, attempted bank extortion in violation of 18
U.S.C. § 2113(a). The relevant portion of U.S.C. § 2113(a)
states:
Whoever, by force and violence, or by intimidation,
takes, or attempts to take, from the person or presence
of another, or obtains or attempts to obtain by extortion
any property or money or any other thing of value
belonging to, or in the care, custody, control, manage-
10 Nos. 10-1308, 10-1328, 10-1660, 10-1753

ment, or possession of, any bank . . . [s]hall be fined
under this title or imprisoned not more than twenty
years, or both.
According to Callion and Durham, there is no evidence
that they knew the ransom money belonged to the bank,
and therefore no reasonable jury could have found that
they possessed the requisite intent—namely, the intent to
“obtain by extortion . . . money . . . belonging to, or in the
care, custody, control, management, or possession of, any
bank.” 18 U.S.C. § 2113(a).1

1
The parties presume that attempted bank robbery under
§ 2113(a) is a specific intent crime because, at common law,
attempt offenses carry a requirement that the defendant specifi-
cally intend to commit the underlying crime. United States
v. Coté, 504 F.3d 682, 687 (7th Cir. 2007). But § 2113(a) contains
no explicit mens rea requirement, and it is well established that
bank robbery under § 2113(a) is a general intent crime, not a
specific intent crime. See Carter v. United States, 530 U.S. 255, 269-
70 (2000); United States v. Fazzini, 871 F.2d 635, 641 (7th Cir.
1989). Neither this Court nor the Supreme Court has decided
whether specific intent is an essential element of attempted bank
robbery in violation of § 2113(a); our sister circuits are split on
the issue. Compare United States v. Darby, 857 F.2d 623, 626 (9th
Cir. 1988) (attempted bank robbery under § 2113(a) requires the
specific intent to take the property by force, violence or intimi-
dation), with United States v. Johnston, 543 F.2d 55, 57-58 (5th Cir.
1976) (attempted bank robbery under § 2113(a) is not specific
intent crime) and United States v. Armstrong, 116 F.3d 489 (10th
Cir. 1997) (unpublished) (same). We need not decide the issue to
address defendants’ argument here.
(continued...)
Nos. 10-1308, 10-1328, 10-1660, 10-1753 11

Callion and Durham maintain that the evidence demon-
strates that they simply intended to steal money from
Zachary. While Callion and Durham concede that eventu-
ally they knew the money was coming from the bank, they
contend that the government failed to show that they knew
that it was the bank’s money, as opposed to Zachary’s bank
deposits. Moreover, they maintain that they learned that
the ransom was coming from the bank after the demand
had been made, and therefore after the crime of extortion
was complete.

1
(...continued)
In order to convict a defendant of a general intent crime, the
government must prove only that the defendant “consciously
and voluntarily [engaged] in the proscribed conduct.” United
States v. Bates, 96 F.3d 964, 967 (7th Cir. 1996). The conduct at
issue here is “attempt[ing] to obtain by extortion . . . money . . .
belonging to, or in the care, custody, control, management, or
possession of, any bank.” 18 U.S.C. § 2113(a). Specific intent
crimes require additional proof of the defendant’s “intent to
effectuate a particular result.” Bates, 96 F.3d at 967. Here, a
specific intent requirement would require the additional proof
that defendants intended to steal the money. Carter, 530 U.S. at
268-69.
Defendants’ contend that the evidence is insufficient to show
that they knew the money belonged to the bank. That argument
relates to their general intent — whether they “possessed
knowledge with respect to the actus reus of the crime.” Id. at 268.
Therefore, the distinction between specific and general intent is
not relevant here.
12 Nos. 10-1308, 10-1328, 10-1660, 10-1753

This court has described the task of successfully chal-
lenging a conviction based on insufficient evidence as “a
daunting one, as the standard of review . . . is necessarily
rigorous.” United States v. Curtis, 324 F.3d 501, 505 (7th
Cir. 2003). If we conclude that any rational trier of fact,
viewing the evidence in the light most favorable to the
prosecution, could have found the essential elements of the
crime beyond a reasonable doubt, then the conviction must
be upheld. Id. Only if the record is devoid of evidence from
which a reasonable jury could find guilt beyond a reason-
able doubt will a conviction be overturned. Id.
We have little trouble concluding that Callion’s challenge
fails. Agent Crocker testified that Callion admitted in his
post-arrest statement to knowing that, at one point,
Zachary told Dorenzo the demand was for her to empty
the bank’s entire vault. That testimony demonstrates that
Callion knew that the money was to be stolen from the
bank. Even apart from Agent Crocker’s testimony, there
was sufficient evidence for a jury to conclude that Callion
knew the plan was to steal money from the bank. Specifi-
cally, Gibbs testified that Callion knew money was coming
“from the bank,” and knew that it was not coming from
a safety deposit box. Viewing that testimony in the
light most favorable to the prosecution, a rational
jury could also have found beyond a reasonable doubt that
Callion understood that the scheme involved robbing
the bank. Moreover, even if Callion thought that Dorenzo
would withdraw the funds from Zachary’s account, a
jury could find the requisite intent because, under our case
law, where a “robber forces [a] bank’s customer to with-
draw . . . money, the customer becomes the unwilling agent
Nos. 10-1308, 10-1328, 10-1660, 10-1753 13

of the robber, and the bank is robbed.” United States v.
McCarter, 406 F.3d 460, 463 (7th Cir. 2005) overruled on other
grounds by United States v. Parker, 508 F.3d 434, 440-
41 (7th Cir. 2007).
While the evidence of Durham’s intent is less over-
whelming, it nevertheless is sufficient to support his
conviction for attempted bank extortion when viewed
in the light most favorable to the government. Durham
was present when Gibbs told Callion that Dorenzo would
get the money from the bank, and, in his post-arrest
statement, Durham stated that he knew Dorenzo worked
at a bank and that he overheard some of the ransom calls
to her. A reasonable fact finder could have concluded
from that evidence that Durham understood that the
scheme involved obtaining the ransom money from the
bank vault.
We also are not persuaded by the argument that
the evidence demonstrates that Callion and Durham did
not become involved in the bank extortion (if at all) until
after the offense was completed. Gibbs testified that
Callion approved the plan for Dorenzo to get the money
from the bank before Zachary ever reached Dorenzo on
the phone to relay the demand. Durham was present
for that conversation. Therefore, we must affirm Callion
and Durham’s convictions on Count Two.

2. Count One
Callion and Durham also raise sufficiency of the evidence
challenges to their convictions on Count One, conspiracy
14 Nos. 10-1308, 10-1328, 10-1660, 10-1753

to rob a federally-insured bank, in violation of 18 U.S.C.
§ 371. One element of a charge of conspiracy to defraud the
United States, in violation of § 371, is intent to commit the
substantive offense. United States v. Cueto, 151 F.3d 620,
635 (7th Cir. 1998). Callion and Durham maintain that the
government presented insufficient evidence of their intent
to commit bank robbery. For the reasons stated above with
respect to Count Two, we conclude that the government
presented sufficient evidence from which a reasonable jury
could conclude that Callion and Durham possessed the
requisite intent to commit the substantive offense of bank
extortion.

C. Response to Jury Question During Callion’s Trial
During its deliberations, the jury at Callion’s trial submit-
ted the following question to the judge:
If the defendant is found guilty on Count 1 [conspiracy
to extort], does the clause for Count 2 [attempt to
extort] stating, “a defendant’s presence at the scene of
crime and knowledge that a crime being committed is
not alone sufficient to establish the defendant’s guilt;
a defendant’s mere association with conspirators is not
by itself sufficient to prove his participation or mem-
bership in a conspiracy” still apply?
The judge responded by instructing the jury to re-read the
instructions. Callion’s counsel objected, requesting that the
judge answer the jury’s question in the affirmative. In view
of the timely objection, we review the district court’s
Nos. 10-1308, 10-1328, 10-1660, 10-1753 15

response for abuse of discretion. United States v. Carani,
492 F.3d 867, 874 (7th Cir. 2007) (citation omitted).
A district court’s discretion in deciding how to respond
to a jury question is quite broad, but the court has an
obligation to exercise that discretion in a way that
“dispel[s] any confusion quickly and with concrete accu-
racy.” Id. (citation omitted). Here, the jury expressed
confusion regarding whether a portion of the instructions
applied under certain circumstances. We believe that re-
reading the instructions as the district court directed
would have dispelled that confusion. The instructions
directed the jury to “give separate consideration to each
count,” and advised that “your verdict of guilty or not
guilty of an offense charged in one count should not
control your decision under any other count, except as
instructed otherwise in these instructions.”
As we have held in the past, a judge does not err by
instructing the jury to re-read the instructions in response
to a question, so long as the original jury charge clearly and
correctly states the applicable law. United States v. Mealy,
851 F.2d 890, 902 (7th Cir. 1988). There is no dispute here
that the jury instructions were accurate.
Moreover, the affirmative answer Callion’s counsel
requested might have confused the jury. The instructions
also included an instruction allowing the jury to find
Callion guilty on Count Two under a Pinkerton v. United
States, 328 U.S. 640 (1946), theory. The Pinkerton instruc-
tion provided:
16 Nos. 10-1308, 10-1328, 10-1660, 10-1753

A conspirator is responsible for offenses committed by
his or her fellow conspirators if he or she was a mem-
ber of the conspiracy when the offense was committed
in furtherance of and as a foreseeable consequence of
the conspiracy.
Therefore, if you find the defendant guilty of the
conspiracy charged in Count One and if you find
beyond a reasonable doubt that while he was a mem-
ber of the conspiracy, one or more of his fellow con-
spirators committed the offenses charged in Count
Two . . . , in furtherance of and as a foreseeable conse-
quence of that conspiracy, then you should find the
defendant guilty of [Count Two].
Thus, if the jury found Callion guilty on the conspiracy
count (as the question indicated it had), it could have
convicted him on Count Two under a Pinkerton theory.
Because neither Callion’s presence when the extortion
was committed, nor his knowledge of that a crime, is
relevant under a Pinkerton analysis, answering the jury
question in the affirmative might have been misleading.
For these reasons, we conclude that the district court
did not abuse its discretion by responding to the jury
question as it did.

D. Application of § 2B3.2(b)(4)(A) Enhancement to
Callion and Durham’s Sentences
In sentencing both Callion and Durham, the district court
imposed U.S.S.G. § 2B3.2(b)(4)(A)’s two-level enhance-
ment for causing bodily injury to “any victim” in the
Nos. 10-1308, 10-1328, 10-1660, 10-1753 17

commission of the offense of extortion by force or threat of
injury or serious damage, concluding that Zachary was
such a victim. Callion and Durham contend that, for
purposes of § 2B3.2(b)(4)(A), the only possible victims of
the crime of attempted extortion are the bank and
the United States. Reviewing the district court’s interpreta-
tion of the sentencing guidelines de novo, United States
v. Veazey, 491 F.3d 700, 706 (7th Cir. 2007), we decline to
adopt that narrow reading of the phrase “any victim.”
As Callion and Durham note, at times, § 2B3.2(b) uses the
phrase “the victim” to refer to the target of an extortionate
demand. § 2B3.2(b)(2) (discussing “the loss to the victim”);
application note 5 (defining “loss to the victim” as
“any demand paid plus any additional consequential loss
from the offense”). However, the application notes indicate
that the provision uses the phrase “any victim” to identify
a broader category of individuals. In particular, application
note 7 states that “[i]f the offense involved the threat of
death or serious bodily injury to numerous victims (e.g., in
the case of a plan to derail a passenger train or poison
consumer products), an upward departure may be war-
ranted.” As the First Circuit has observed, in that example,
“the train passengers are ‘victims’ of the train derailment
extortion scheme even though the extortionate demand is
not made of the passengers themselves.” United States
v. Hughes, 211 F.3d 676, 691 (1st Cir. 2000). Application
note 7 cannot be reconciled with defendants’ nar-
row reading of § 2B3.2(b). In addition, the use of the
modifier “any” in § 2B3.2(b)(4)(A) supports our broader
reading of that provision. See id. (“the use of the indefinite
article [any] suggests a class of potential victims broader
18 Nos. 10-1308, 10-1328, 10-1660, 10-1753

than the target or targets of the extortionate demand”);
United States v. Sickinger, 179 F.3d 1091, 1094 (8th Cir.
1999) (finding there to be “a meaningful distinction
between the ‘any victim’ language . . . and the ‘the victim’
language,” as those phrases are used in the Guidelines);
United States v. Malpeso, 115 F.3d 155, 169 (2d Cir. 1997)
(explaining that the Guidelines generally use “the victim”
to refer to a single intended victim, and “any victim” to
refer to the broader group of those affected by the crime).
Finally, our reading of the phrase “any victim” in
§ 2B3.2(b)(4)(A) also is consistent with our decision in
United States v. Maiden, 606 F.3d 337, 339-40 (7th Cir. 2010),
in which we affirmed the application of the bodily injury
enhancement where a bank teller was injured by the use of
pepper spray. There, the bank, not the teller, was the target
of the extortionate demand. For these reasons, we conclude
that the district court properly determined that Zachary
was a victim within the meaning of § 2B3.2(b)(4)(A).

E. Collins’s Sentence
The Sentencing Guidelines designate any defendant
convicted of a “crime of violence or a controlled substance
offense” who also has at least two prior felony convictions
of either a crime of violence or a controlled substance
offense as a “career offender.” See § 4B1.1; United States
v. Woods, 576 F.3d 400, 403 (7th Cir. 2009). In sentencing
Collins, the district court found him eligible to be sen-
tenced under Guideline § 4B1.1 as a career offender based
on previous convictions for possession of a controlled
Nos. 10-1308, 10-1328, 10-1660, 10-1753 19

substance with intent to deliver and aggravated battery.
The court then sentenced Collins to a low-end guidelines
sentence of 151 months on Count Two and to the 120
month mandatory minimum on Count Three, and ordered
that the sentences be served consecutively as is mandated
by 18 U.S.C. § 924(c).
Collins raises several challenges to his sentence. First, he
maintains that the district court erred in applying the 120-
month enhancement under 18 U.S.C. § 924(c)(1)(A)(iii)
for discharging a firearm “during and in relation to any
crime of violence,” because Gibbs’s shotgun discharge was
accidental. As the district court properly concluded,
an accidental firearm discharge can trigger the 10-year
mandatory minimum because § 924(c) does not include an
intent to discharge the firearm requirement. Dean v.
United States, 129 S.Ct. 1849, 1855-56 (2009) (“[t]he 10-year
mandatory minimum applies if a gun is discharged in
the course of a violent or drug trafficking crime, whether
on purpose or by accident.”). Contrary to Collins’s reading
of Dean, we do not believe the Supreme Court intended to
limit Dean to cases in which the accidental gunshot might
hurt or scare victims. While the Court noted that such
accidents “increase[] the risk that others will be injured,
that people will panic, or that violence (with its own
danger to those nearby) will be used in response,” it
did not condition its holding on the existence of an in-
creased risk or intimidation. Id.
Second, Collins contends that the district court errone-
ously treated the career criminal guidelines as mandatory.
An examination of the sentencing hearing transcript belies
20 Nos. 10-1308, 10-1328, 10-1660, 10-1753

that claim. After recognizing that judges can refuse to
follow the guidelines if they disagree with the policy, the
sentencing judge expressly stated that he did not disagree
with the policy behind the career offender guidelines in
Collins’s case. The judge explained that while he does
disagree with the policy “where the triggering offenses are
minor drug offenses,” he had no disagreement with the
policy “as it’s applied in this case,” noting Collins’s long
criminal history and the fact that he was charged with
possessing a gun after a felony conviction. Collins main-
tains that the judge must have thought the guidelines were
mandatory because one of Collins’s two triggering offenses
was a minor drug conviction. We disagree. Collins’s other
triggering offense was an aggravated battery conviction for
which he was sentenced to ten years imprisonment and
served four. Moreover, Collins had a long criminal history,
which placed him in criminal history category VI, the
highest of the criminal history categories. The transcript
indicates that the combination of the violent battery
conviction and Collins’s criminal background convinced
the district judge that deviation from the career criminal
guidelines was not warranted in Collins’s case, not that the
judge overlooked the guidelines’ advisory nature.
Third, Collins argues that the district court erroneously
considered arrest reports cited in the presentence investi-
gation report in determining his sentence. Under Shepard
v. United States, 544 U.S. 13 (2005), a sentencing court may
not consider police reports to determine whether a prior
conviction meets the definition of a crime of violence or a
controlled substance offense for purposes of classifying a
defendant as a career offender. Here, the district court
Nos. 10-1308, 10-1328, 10-1660, 10-1753 21

considered the contents of an arrest report, not to classify
Collins’s prior convictions, but to conclude that a deviation
from the career criminal guidelines was unwarranted.
Specifically, the court referenced a 1996 arrest report for
unlawful use of a firearm by a felon, which indicated that
Collins was arrested on a signed complaint that he struck
two female victims in the face and threatened to kill them
while menacing them with the pistol. Collins was con-
victed of that offense.
Because the court did not rely on the arrest reports to
identify Collins’s qualifying offenses, it did not run afoul
of Shepard. We have noted that district courts may “con-
sider the underlying conduct detailed in arrest records
where there is a sufficient factual basis for the court to
conclude that the conduct actually occurred.” United States
v. Guajardo-Martinez, 635 F.3d 1056, 1059 (7th Cir. 2011).
The defendant bears the burden of showing that the
presentence report is inaccurate or unreliable, and “a
defendant’s bare denial of information in a presentence
report is insufficient to challenge its accuracy and reliabil-
ity.” United States v. Turner, 604 F.3d 381, 385 (7th Cir. 2010)
(citation and quotations omitted). Here, all we have
is Collins’s claim at the sentencing hearing that the victims
were lying; that bare denial is insufficient to undermine the
information relied on by the district court in refusing to
deviate below the guidelines range.
Finally, Collins claims that his sentence was unreason-
ably high as compared to Callion and Durham. Because
Collins received a guidelines sentence, that sentence is
entitled to a presumption of reasonableness, which Collins
22 Nos. 10-1308, 10-1328, 10-1660, 10-1753

can rebut only by demonstrating that his sentence is
unreasonable when measured against the § 3553(a) factors.
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005). One of the factors set forth in § 3553(a) is “the need
to avoid unwarranted sentence disparities among defen-
dants with similar records who have been found guilty of
similar conduct.” 18 U.S.C. § 3553(a)(6) (emphasis added).
As we have explained in the past, the purpose of
§ 3553(a)(6) is to eliminate unjustified sentencing dispari-
ties “across judges (or districts) rather than among defen-
dants to a single case.” United States v. Davila-Rodriguez,
468 F.3d 1012, 1014 (7th Cir. 2006); see also United States v.
Omole, 523 F.3d 691, 700 (7th Cir. 2008) (a discrepancy
between sentences of co-defendants is not a basis
for challenging a sentence). Therefore, Collins’s argument
is misplaced.
Moreover, even if we were to compare Collins’s sentence
to those of Callion and Durham, we would not conclude
that Collins’s sentence is unreasonably high. Section
3553(a)(6) applies to defendants with similar records who
have been found guilty of similar conduct. Collins is not
similar to Callion and Durham in either of those regards.
He had a more extensive criminal record, which put him in
criminal history category VI, while Callion was in criminal
history category II and Durham was in criminal history
category III. In addition, Collins pled guilty to different
offenses than those for which Callion and Durham were
convicted. Collins pled guilty to Counts Two and Three,
whereas Callion and Durham were convicted of Counts
One and Two, and acquitted on Count Three. The offense
Nos. 10-1308, 10-1328, 10-1660, 10-1753 23

charged in Count Three carries a mandatory minimum
sentence that must be served consecutively to any other
sentence. See 18 U.S.C. § 924(c). That distinction alone
explains much of the disparities in the sentences. For the
foregoing reasons, we affirm Collins’s sentence.

F. Swopes’s Sentence
Like Collins, Swopes was sentenced as a career offender
pursuant to § 4B1.1. The district court calculated the
guideline range on Count Two to be 151 to 188 months, and
sentenced Swopes to 170 months on that count. The court
sentenced Swopes to the statutory minimum of 120 months
on Count Three, and ordered the sentences to be served
consecutively, as 18 U.S.C. § 924(c) requires. Swopes
raises several challenges to his sentence.
Swopes first contends that the district court failed to
address one of his primary arguments in favor of a lower
sentence, which we have held to be error. See United States
v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). At
the sentencing phase, Swopes asked the court to consider
his mental impairment as a mitigating factor. Swopes
relied on two psychological evaluations to support his
claim of mental impairment.
In the spring of 2009, Bureau of Prisons Psychologist Dr.
Ron Nieberding evaluated Swopes in order to determine
his competency to stand trial. Dr. Nieberding diagnosed
Swopes with a number of mental disorders including
borderline intellectual functioning, cannabis abuse in
remission, depression disorder not otherwise specified,
24 Nos. 10-1308, 10-1328, 10-1660, 10-1753

and anti-social personality disorder. Dr. Nieberding
reported that Swopes’s IQ is between 70 and 79, which is
well below average. At age 17, Swopes was assaulted with
a baseball bat and pistol butt. Dr. Nieberding opined that
the head injury Swopes suffered in that attack might have
“residual effects” on Swopes, but that “his current func-
tioning is likely to be influenced to a greater extent by his
life style choices (i.e., chronic substance abuse, criminal
behavior), and emotional factors (i.e., underdeveloped
coping skills, poor frustration tolerance).” Dr. Nieberding
nevertheless found Swopes to be competent to stand trial.
In preparation for sentencing, Dr. Robert Hanlon per-
formed a neuropsychological examination of Swopes. Dr.
Hanlon reported that Swopes has an IQ of 74, and opined
that Swopes “manifests multiple cognitive and intellectual
deficits that represent a disabling mental impairment.”
Based on the inverse correlation between education and
crime, Dr. Hanlon opined that psychological counseling
and further education “may be expected to potentially
decrease the likelihood of future criminal behavior for
inmates like Mr. Swopes.”
Based primarily on Dr. Hanlon’s report, counsel for
Swopes argued that Swopes’s mental impairment should
be considered a mitigating factor because it made him a
good candidate for rehabilitation. The sentencing judge
addressed that argument and rejected it, reasoning that
Dr. Hanlon’s opinion was of little value because Dr.
Hanlon had made no specific prediction regarding
the degree to which Swopes would benefit from education
Nos. 10-1308, 10-1328, 10-1660, 10-1753 25

and treatment based on his individual potential and prior
history.
Swopes now argues that the district court should have
considered his mental impairment to be a mitigating factor
because it reduced his culpability. Swopes made no such
argument below. Consequently, it fails for two reasons.
First, the argument is waived. Tully v. Barada, 599 F.3d
591, 594 (7th Cir. 2010). Second, below, Swopes sought to
have the court consider his mental impairments under
§ 3553(a)(1), which identifies “the history and characteris-
tics of the defendant” as an appropriate sentencing consid-
eration. He did not argue that he suffered from a dimin-
ished capacity—meaning an inability to understand the
wrongfulness of his actions or to control his actions—that
substantially contributed to the commission of the offense.
See Application Note to U.S.S.G. § 5K2.13. As we
explained in United States v. Portman, 599 F.3d 633 (7th Cir.
2010), the distinction between diminished capacity
and personal characteristics that either increase or decrease
the risk of recidivism (i.e., aggravating or mitigating
factors) is an important one. A finding of diminished
capacity should never be treated as an aggravating factor
for sentencing purposes. Id. at 138. By contrast, a defendant
must show why a particular personal characteristic,
such as a low IQ, acts as a mitigating factor, as opposed to
an aggravating one. See id. at 138 (noting that age could be
a mitigating or aggravating factor); United States v.
Beier, 490 F.3d 572, 574 (7th Cir. 2007) (defendant must
show why particular characteristics, including low IQ,
“require a shorter sentence or a longer sentence than
would be appropriate for a defendant who lacked those
26 Nos. 10-1308, 10-1328, 10-1660, 10-1753

characteristics”). Here, Swopes never argued that his
mental impairments should be treated as mitigating
because they reduced his culpability, and therefore the
district court did not err in not treating them as such. The
district court gave due consideration to the only argument
Swopes advanced for why his mental impairments should
be considered a mitigating factor, and reasonably rejected
it.
Swopes belatedly advances a diminished capacity
argument here, but he waived that argument as well. Tully,
599 F.3d at 594. In any event, the district court could not
have found that any diminished capacity Swopes allegedly
suffered substantially contributed to his commission of the
crimes based on the evidence before it. A diminished
capacity finding will be made where the defendant (1)
could not understand the wrongfulness of his behavior or
could not control that behavior at the time of the offense,
and (2) that significantly reduced mental capacity contrib-
uted substantially to the commission of the offense.
See U.S.S.G. § 5K2.13; Portman, 599 F.3d at 637. Neither of
the reports on which Swopes relies indicates that he could
not understand the wrongfulness of his conduct or control
his behavior at the time of the offense. Nor does Swopes
even attempt to demonstrate the requisite connection
between his mental capacity and the actions underlying his
crimes. That connection cannot be assumed. Id. at 639.
With respect to his mental impairment, Swopes also
argues that the district court erred by treating that charac-
teristic as an aggravating factor. We find nothing in the
sentencing transcript to support that contention. For that
Nos. 10-1308, 10-1328, 10-1660, 10-1753 27

reason, and those above, we conclude that the district court
did not err in its consideration of Swopes’s mental impair-
ment for sentencing purposes. Before moving on, however,
we note that the government did argue that Swopes’s
mental capacity should be treated as an aggravating factor.
During the sentencing hearing, the prosecutor stated that
“if anything [Swopes’s mental capacity] shows a greater
danger, because it appears that not every person who has
a borderline intelligence is out there committing violent
crimes, but Mr. Swopes is. And that makes him a greater
danger to society. And I think that that has to be consid-
ered in making his sentence.” The government’s contention
in its brief that “it never argued that defendant’s cognitive
impairments alone made him a danger to society” appears
specious.
Like Collins, Swopes argues that his sentence was
unreasonably high in comparison to those of his co-defen-
dants. Because Swopes has not demonstrated an unjustifi-
able disparity between the length of his sentence and
“all other similar sentences imposed nationwide,” we will
not disturb his sentence. Omole, 523 F.3d at 700 (citation
omitted, emphasis in original).
Finally we reach the objection we consider meritorious.
Swopes maintains that the district court committed a
significant procedural error in sentencing by relying on a
clearly erroneous fact—that Swopes had prior involvement
with guns. During sentencing, the district judge stated:
“Obviously his prior encounters with the criminal justice
system, and there were a lot, didn’t deter him from quickly
signing on to do this lick. And his prior involvement with
28 Nos. 10-1308, 10-1328, 10-1660, 10-1753

violent offenses, drugs and guns, means that he does
represent a risk to the community.” In fact, Swopes had
no prior convictions involving the use of firearms. Because
Swopes failed to object to that error at the sentencing
hearing, we review for plain error.
The government contends that the district court’s
reference to guns was not an error, but a reference to
Swopes’s use of a firearm in this case. Despite our efforts,
we cannot conclude that the proposed interpretation is a
fair reading of the transcript. That makes two troubling
representations of the record by the government in relation
to Swopes’s sentencing hearing. Needless to say, inten-
tional or not, such questionable observations are regretta-
ble from any litigant, and are particularly unsettling
when they come from the government. All of that is to
say we agree with Swopes that the district court appears to
have misapprehended the record with respect to his past
use of firearms.
Having determined that a plain error occurred, we turn
to whether that error affected Swopes’s substantial rights
by resulting in a different sentence than he otherwise
would have received. United States v. Corona-Gonzalez, 628
F.3d 336, 341 (7th Cir. 2010). In selecting Swopes’s sen-
tence, the district court focused on the violent nature of the
crime, the fact that Swopes readily agreed to participate
despite having been paroled just nine months earlier, and
Swopes’s significant criminal history, which the judge
apparently believed included the use of firearms. While the
court mentioned guns only once, based on our reading of
the transcript, we conclude that it is “not improbable that
Nos. 10-1308, 10-1328, 10-1660, 10-1753 29

the trial judge was influenced by improper factors in
imposing sentence.” Rizzo v. United States, 821 F.2d
1271, 1274 (7th Cir. 1987) (internal quotation marks omit-
ted). Finally, we conclude that a sentence potentially based
on an erroneous fact affects the fairness, integrity, and
public reputation of the proceeding. Corona-Gonzalez,
628 F.3d at 342.
We consequently vacate Swopes’s sentence and remand
the case to the district court for resentencing. On remand,
the district court simply must reassess the sentence
without the factual error referenced above. No other
aspects of the original sentencing procedure are to be
reconsidered.

III. Conclusion
For the reasons set forth above, we A FFIRM Callion and
Durham’s convictions and sentences, as well as Collins’s
sentence. Swopes’s sentence is V ACATED , and the case is
R EMANDED solely to give the district court the opportunity
to reconsider Swopes’s sentence free from any misappre-
hension regarding his prior use of firearms.

6-28-11