In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3236
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
NAPOLEON FOSTER,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:08‐cr‐00880‐1 — Robert W. Gettleman, Judge.
____________________
ARGUED JULY 5, 2018 — DECIDED AUGUST 31, 2018
____________________
Before WOOD, Chief Judge, and SCUDDER and ST. EVE,
Circuit Judges.
SCUDDER, Circuit Judge. For his part in the armed robbery
of a credit union, Napoleon Foster was convicted of robbing
a financial institution, using a firearm during the robbery, and
possessing a firearm as a felon. The district court sentenced
Foster as an armed career criminal but later vacated the sen‐
tence because one of his prior convictions no longer qualified
as a predicate offense. On appeal from resentencing, Foster
2 No. 17‐3236
argues that the district court erred in its determination of the
advisory guidelines range applicable to the robbery offense
by imposing an enhancement under U.S.S.G. § 2B3.1(b)(2)(F)
for his coconspirator’s threat to detonate a bomb during the
robbery. Relying on the language used by the Sentencing
Commission in Application Note 4 to U.S.S.G. § 2K2.4, he con‐
tends that the sentence he received under 18 U.S.C. § 924(c)
accounts for the bomb threat and thus the threat cannot also
enhance the advisory range for the robbery conviction. We
agree and therefore vacate Foster’s sentence and remand for
resentencing.
I
In January 2006, Foster hatched a plan with Asia Hill to
rob a credit union in Riverdale, Illinois. Hill then recruited
Charles Anderson, and the trio met on the day of the robbery
to review the plan. Foster supplied Hill and Anderson with
guns to use during the robbery, drove them to the credit
union, and waited nearby while they went inside. During the
robbery, Hill directed a teller to empty the cash drawers and
threatened to shoot her if she pressed any alarms. Meanwhile,
Anderson held another employee at gunpoint and ordered
him to open and empty the vault. Before leaving, Anderson
also threatened to detonate a bomb: “Nobody move for ten
minutes. I got a bomb and I’ll blow this place up.” Anderson
and Hill made off with approximately $250,000 and met
Foster a short distance from the credit union. The three later
split the proceeds, with Foster pocketing around $100,000.
A grand jury indicted Foster for committing an armed
robbery of the credit union, 18 U.S.C. § 2113(a), (d); using a
firearm during a crime of violence, id. § 924(c)(1)(A)(i); and
possessing a firearm as a felon, id. § 922(g)(1). The case
No. 17‐3236 3
proceeded to trial, and a jury found Foster guilty on all
counts.
The district court sentenced Foster to 284 months’
imprisonment. We upheld the convictions and sentence on
direct appeal. United States v. Foster, 652 F.3d 776 (7th Cir.
2011). Invoking 28 U.S.C. § 2255, Foster later moved to vacate
his sentence, contending that resentencing was warranted
because, in the wake of Samuel Johnson v. United States,
135 S. Ct. 2551 (2015), his prior conviction for burglary no
longer qualified as a predicate offense under the
Armed Career Criminal Act. Once the Supreme Court
decided Mathis v. United States, 136 S. Ct. 2243 (2016), the
government conceded the point, and the district court
ordered resentencing.
Prior to resentencing, the Probation Office revised its
computation of the advisory guidelines range. The revised
range reflected a two‐level enhancement pursuant to U.S.S.G.
§ 2B3.1(b)(2)(F) based on both Hill’s threat to shoot the teller
and Anderson’s threat to detonate a bomb. Foster objected,
arguing that Application Note 4 to U.S.S.G. § 2K2.4
prohibited any death‐threat enhancement where, as here, a
defendant also received a sentence for committing a firearms
offense under 18 U.S.C. § 924(c).
Pointing to our decision in United States v. White, 222 F.3d
363 (7th Cir. 2000), the district court determined the two‐level
enhancement was authorized as a legal matter. The
sentencing judge also determined the enhancement was
warranted on the facts, as Foster effectively ordered
Anderson and Hill to “terrorize this bank” and thus could
have foreseen a death threat being conveyed during the
robbery. The resulting advisory guidelines range was 97 to
4 No. 17‐3236
121 months for the robbery and felon‐in‐possession counts,
reflecting a total offense level of 28 and a criminal history
category of III. Without the death‐threat enhancement, the
total offense level would have been 26, which, in turn, would
have reduced the advisory range to 78 to 97 months. The
district court imposed concurrent sentences of 121 months for
the robbery and felon‐in‐possession convictions to be
followed by the 60‐month mandatory consecutive term for
the § 924(c) conviction, yielding a total sentence of 181
months’ imprisonment.
II
A
Foster renews his challenge to the two‐level death‐threat
enhancement he received pursuant to U.S.S.G.
§ 2B3.1(b)(2)(F). In doing so, he focuses on whether
Anderson’s threat to detonate a bomb during the robbery
supported the enhancement because, as the government
concedes, our decision in United States v. Katalinic prevents
Hill’s threat to shoot the teller with a gun from serving as the
basis for the enhancement. See 510 F.3d 744, 748 (7th Cir.
2007) (“We choose to adopt the rule used by our sister circuits
that death threats related to the firearm forming the basis of
the § 924(c) sentence cannot be double counted by increasing
the base offense level for the underlying crime.”). Foster does
not contend that the bomb threat somehow fell short of
constituting a death threat. His point is a legal one: relying on
Application Note 4 to U.S.S.G. § 2K2.4, he contends that the
district court was not permitted to impose the enhancement
“for any weapon‐ or explosive‐related conduct—be it part of
No. 17‐3236 5
the underlying offense or relevant conduct—when that
defendant is also convicted under § 924(c).”
We approach an interpretation of the Sentencing
Guidelines as we would a question of statutory
interpretation—by starting with the text of the guidelines.
See United States v. Vizcarra, 668 F.3d 516, 520 (7th Cir. 2012).
Here, no particular guideline answers the question presented.
The source of the two‐level death‐threat enhancement is
U.S.S.G. § 2B3.1(b)(2)(F), a subsection of the offense guideline
applicable to Foster’s armed robbery conviction under 18
U.S.C. § 2113(a), (d). But neither the text of nor commentary
to § 2B3.1 suggests a limit on imposing the enhancement in
conjunction with a sentence under § 924(c). The same is true
of the text of U.S.S.G. § 2K2.4, the guideline applicable to
violations of § 924(c).
The controlling guidance comes from the Sentencing
Commission’s commentary to § 2K2.4, and, more specifically,
Application Note 4. As the Supreme Court has explained, we
treat such commentary as “authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.” Stinson v. United
States, 508 U.S. 36, 38 (1993). So, too, has the Court recognized
that revisions to the guidelines can occur through amend‐
ments to the commentary, including in response to a “prior
judicial construction[] of a particular guideline.” Id. at 46.
6 No. 17‐3236
By its terms, Application Note 4 to § 2K2.4 provides:
If a sentence under this guideline is imposed in
conjunction with a sentence for an underlying
offense, do not apply any specific offense char‐
acteristic for possession, brandishing, use, or
discharge of an explosive or firearm when de‐
termining the sentence for the underlying of‐
fense. A sentence under this guideline accounts
for any explosive or weapon enhancement for
the underlying offense of conviction, including
any such enhancement that would apply based
on conduct for which the defendant is account‐
able under § 1B1.3 (Relevant Conduct).
The language of Application Note 4 precluded the district
court’s imposition of the two‐level enhancement challenged
by Foster. The note starts with an instruction not to apply
“any specific offense characteristic for possession, brandish‐
ing, use, or discharge of an explosive … when determining
the sentence for the underlying offense”—here, armed rob‐
bery of a financial institution. By its terms, the two‐level
death‐threat enhancement in § 2B3.1(b)(2)(F) is a “specific of‐
fense characteristic” of a robbery.
Furthermore, during the course of the armed robbery,
Anderson announced that he had a “bomb” and referred to
the bomb as part of telling those present not to “move for ten
minutes,” lest he “blow this place up.” Anyone present surely
thought Anderson was using an explosive to convey a death
threat. On these facts, Anderson’s statements sufficed to
constitute “use” of an “explosive” within the meaning of
Application Note 4.
No. 17‐3236 7
The second sentence of Application Note 4 proves this
construction. That sentence turns the focus to whether the
conduct giving rise to “any explosive or weapon enhance‐
ment” constitutes relevant conduct within the meaning of
§ 1B1.3. Because Anderson’s bomb threat was made during
the robbery to further his and Hill’s escape and, as the district
court found, was “reasonably foreseeable” to Foster, it was
“relevant conduct” to the robbery. See U.S.S.G.
§ 1B1.3(a)(1)(B).
The text of Application Note 4 makes plain the
consequence of our reading: Foster’s § 924(c) sentence already
“accounts for any explosive or weapon enhancement” for the
underlying robbery, including any enhancement that would
apply based on the relevant conduct of Anderson’s bomb
threat. Accordingly, no enhancement for the bomb threat
could be applied to the offense level for purposes of
computing the advisory range applicable to Foster’s armed
robbery conviction.
B
The path that led the Commission to Application Note 4
as it stands today reinforces our conclusion. In 2000, the
Commission revised the note, previously located at
Application Note 2 to U.S.S.G. § 2K2.4. (We refer to the note
as Application Note 4 throughout this opinion and point out
when we are discussing the earlier version.) The Commission
explained that it “intended [the 2000 amendment] to avoid the
duplicative punishment that results when sentences are
increased under both the statutes and the guidelines for
substantially the same harm” and to “conform application of
guideline weapon enhancements with general guideline
principles.” U.S.S.G. Supp. to App. C, Amend. 599 (2000).
8 No. 17‐3236
Comparing the language of the pre‐amendment
application note and the post‐amendment application note is
instructive:
Pre‐Amendment Post‐Amendment
U.S.S.G. § 2K2.4 n.2 U.S.S.G. § 2K2.4 n.4
Where a sentence under this If a sentence under this
section is imposed in con‐ guideline is imposed in
junction with a sentence for conjunction with a sen‐
an underlying offense, any tence for an underlying of‐
specific offense characteristic fense, do not apply any
for the possession, use, or specific offense character‐
discharge of an explosive or istic for possession, bran‐
firearm (e.g. § 2B3.1(b)(2)(A)‐ dishing, use, or discharge
(F) (Robbery)) is not to be ap‐ of an explosive or firearm
plied in respect to the guide‐ when determining the sen‐
line for the underlying of‐ tence for the underlying
fense. offense. A sentence under
this guideline accounts for
any explosive or weapon
enhancement for the un‐
derlying offense of convic‐
tion, including any such
enhancement that would
apply based on conduct
for which the defendant is
accountable under § 1B1.3
(Relevant Conduct).
The additional language in the revised application note
prohibits “any explosive or weapon enhancement” based on
relevant conduct where a defendant also receives a sentence
under § 924(c). U.S.S.G. § 2K2.4 n.4 (emphasis added). The
No. 17‐3236 9
amended language broadens the inquiry under the applica‐
tion note to all relevant conduct: if the enhancement is based
on relevant conduct, it is precluded. The amended note con‐
tains no indication that the Commission intended to reach
only those enhancements imposed for the same conduct un‐
derlying the § 924(c) conviction.
In issuing the amendment, the Commission identified a
Ninth Circuit case, United States v. Willett, 90 F.3d 404 (9th Cir.
1996), as an example of a misinterpretation of the application
note. See U.S.S.G. Supp. to App. C, Amend. 599. Pointing to
Willett, the Commission explained, “offenders have received
both the mandated [§ 924(c)] penalty and a guideline weapon
enhancement in circumstances in which the guidelines
generally would require a single weapon enhancement.” Id.
In Willett, the Ninth Circuit concluded that an enhancement
for possessing a knife and silencer was permitted under the
application note because possessing those weapons in
addition to a gun “poses a greater risk,” so the enhancement
“was necessary to reflect fully the wrongfulness of the
defendant’s conduct.” 90 F.3d at 408. The Ninth Circuit has
since concluded that Willett is no longer good law in light of
the amendment to the application note. United States v.
Aquino, 242 F.3d 859, 864 (9th Cir. 2001) (“It is now beyond
question that where a defendant is convicted of a § 924(c)
violation, his sentence may not be enhanced at all for any
conduct for which the defendant is accountable within the
scope of relevant conduct under U.S.S.G. § 1B1.3.”).
C
The government presses a different construction of
Application Note 4. It argues that a death‐threat enhancement
triggered by conduct separate from the conduct punished by
10 No. 17‐3236
§ 924(c) is permissible. It urges us to uphold the district
court’s imposition of the death‐threat enhancement here by
concluding that “[n]either Guideline § 2K2.4 nor its
application note expressly precludes a court from applying an
enhancement for a threat of death where the threat is not
directly related to the firearm for which [the] defendant
received a mandatory sentence under § 924(c).”
But the government’s proposed distinction between con‐
duct related to the § 924(c) offense and unrelated conduct can‐
not be squared with the text of the amended note, which
broadly prohibits “any explosive or weapons enhancement”
based on relevant conduct where a defendant also receives a
sentence under § 924(c). U.S.S.G. § 2K2.4 n.4 (emphasis
added). The breadth of the Commission’s language in the
amendment does not allow for the limitation proposed by the
government.
Nor does the government have an answer to the
Sentencing Commission’s stated objective of amending
Application Note 4 to change the outcome of cases like Willett.
Recall that Willett did not involve any real bombs or other
explosive devices. To the contrary, the offense conduct that
led to the imposition of a two‐level enhancement for the
possession of a dangerous weapon there was the defendant’s
possession of a silencer and a knife. See Willett, 90 F.3d at 408.
If the government’s position were correct, we would have
expected the Commission to leave the outcome of Willett
alone, as Charles Willett’s possession of the knife—which was
not related to his § 924(c) conviction—could have been seen
as independently sufficing to warrant the two‐level
enhancement. But the Commission chose a different course,
making plain that its 2000 amendment was designed to
No. 17‐3236 11
preclude such enhancements in future cases. The
government’s reading of Application Note 4 as limited to the
firearm (or explosive) underlying a defendant’s § 924(c)
conviction cannot be squared with the broad and expanded
limitations intended by the Commission through its 2000
amendment. Turning back to Foster’s case, Application Note
4 and its commentary require us to decline the government’s
invitation to distinguish between threats “directly related” to
the firearm underlying his § 924(c) conviction and threats
unrelated to the firearm in the § 924(c) conviction.
The government also argues that the Commission’s
limitation extends only to enhancements for the “possession,
brandishing, use, or discharge of an explosive or firearm.”
U.S.S.G. § 2K2.4 n.4 (emphasis added). Quick to concede that
Anderson and Hill’s use of guns during the robbery cannot
provide the basis for a death‐threat enhancement to Foster’s
sentence—as any other conclusion would run afoul of our
conclusion in Katalinic—the government contends that
nothing about the offense conduct here involved the “use” of
any “explosive.” Yes, Anderson conveyed a death threat by
warning that he had a bomb and would blow up the credit
union if anyone moved, but that conduct, the government’s
reasoning runs, does not entail the use of any explosive, just
a reference to one.
The government roots part of its argument in the history
of Application Note 4. Prior to the amendment, the applica‐
tion note specifically listed the enhancement for making a
death threat, § 2B3.1(b)(2)(F), as among the enhancements for
possession, use, or discharge of an explosive or firearm. The
2000 amendment removed this reference, leading the govern‐
12 No. 17‐3236
ment to contend that “any explosive or weapon enhance‐
ment” in the amended note no longer encompasses every
death‐threat enhancement.
We remain unpersuaded that the offense conduct here did
not involve the “use” of an “explosive.” As a preliminary
matter, our decision in Katalinic precludes the argument that
the removal of the application note’s specific reference to
§ 2B3.1(b)(2)(A)–(F) means that “any explosive or weapon
enhancement” no longer encompasses a death threat. See
510 F.3d at 747 (discussing the amendment as it related to
death‐threat enhancements and concluding “[t]he
Commission was presumably aware of the caselaw
prohibiting death‐threat adjustments in this context and
tacitly approved the interpretation by not criticizing it”). And
for good reason: we know of nothing suggesting that the
Sentencing Commission intended to narrow (and not
broaden) the reach of the limitation found in Application
Note 4.
Moreover, the government’s reading invites an absurd
result. Take, for example, an armed robbery like the one that
occurred here but where Anderson or Hill possessed a real
bomb. On the government’s reading, there unquestionably
would be a use of an explosive and thus the limitation in
Application Note 4 would prevent imposition of the death‐
threat enhancement in § 2B3.1(b)(2)(F). It makes little sense to
permit the enhancement here, where nobody had a bomb but
referred to one as part of leveling a death threat, but not
where the offenders went to the added—and more
blameworthy—effort of acquiring a real bomb and then using
it during a robbery.
No. 17‐3236 13
Consider another example. Application Note 4 makes
plain (in a paragraph just under the one at issue here) that, in
circumstances where a defendant is convicted of a drug of‐
fense and a § 924(c) violation, the drug sentence cannot be en‐
hanced for any use of violence or credible threat to use vio‐
lence. The limitation applies broadly, requiring no nexus to
the § 924(c) offense conduct. It is incoherent to conclude that
the Commission intended to foreclose altogether threat en‐
hancements in drug cases but to permit them in robbery cases
so long as the facts show that the threat in a robbery case did
not involve the same firearm or explosive underlying the
§ 924(c) offense. The better conclusion is that the Commission
intended Application Note 4 to apply broadly, including
where, as here, application of the relevant conduct rule shows
that the threat to blow up the credit union occurred during
the course of the armed robbery.
III
That would be the end of this appeal if we were writing
from a blank slate. Not so, though, and far from it. In several
prior cases we have encountered Application Note 4 and sug‐
gested different interpretations—some consistent with each
other and others not. The time has come to land on a unified
position. Before issuing this opinion, we circulated it to the
full court under Circuit Rule 40(e). No judge in active service
requested to hear the case en banc.
The beginning point is our 2000 decision in United States v.
White, 222 F.3d 363 (7th Cir. 2000) (White I). Rodney White
robbed a bank using a gun and a fake bomb. A conviction un‐
der § 924(c) followed, and, akin to Foster here, White received
a two‐level enhancement to his robbery sentence for using a
fake bomb. Id. at 372–73. He challenged the enhancement as
14 No. 17‐3236
impermissible double counting, citing U.S.S.G. § 2K2.4 n.2
(1998), the earlier version of the application note that prohib‐
ited applying “any specific offense characteristic for the pos‐
session, use, or discharge of an explosive or firearm” for the
underlying offense if the defendant also was convicted under
§ 924(c). Id. at 373 & n.4. We concluded that a defendant like
White could receive both a § 924(c) sentence and a sentencing
enhancement as long as they were imposed for “different un‐
derlying conduct.” Id. at 373. We reasoned that using a fake
bomb was not the same conduct as using a gun: they are sep‐
arate “offenses” under § 924(c) that carry substantially differ‐
ent penalties. Id. at 375. Tracking the Ninth Circuit’s reason‐
ing in Willett, we explained that there was a difference in the
degree and kind of harm posed by a bomb versus a gun. Id.
Thus, White had not been punished for the bomb “to the ex‐
tent Congress intended,” and the district court was free to en‐
hance the robbery sentence for that conduct. Id.
We decided White I before the Sentencing Commission
amended Application Note 4. The Commission’s specific ref‐
erence to Willett as an outcome the amendment was intended
to avoid was significant because there, as in White I, the en‐
hancement was based on at least one weapon (a knife) unre‐
lated to the conduct underlying the § 924(c) conviction. On
this understanding, we later agreed with White that he was
eligible for a sentence reduction based on the Commission’s
2000 amendment:
Because White’s use of the fake bomb was rele‐
vant conduct to the underlying bank robbery of‐
fense, see U.S.S.G. § 1B1.3(a)(1)(A), the § 924(c)
conviction “account[ed] for” the possibility of
an upward adjustment under § 2B3.1(b)(2)(E).
No. 17‐3236 15
Had the amendment been in place at the time of
White’s sentencing imposing the upward ad‐
justment would have been forbidden.
United States v. White (White II), 309 F. App’x 7, 9 (7th Cir.
2009).
White II supports Foster’s contention that the district court
erred when imposing an enhancement to his robbery sentence
for the bomb threat. In clear and precise terms, we recognized
that the amendment to the application note abrogated the dis‐
tinction made in White I between enhancements based on the
same weapon and conduct underlying the § 924(c) conviction,
and enhancements based on different underlying conduct.
See id. Just as Application Note 4 forbids an enhancement for
using a fake bomb because it is already taken into account by
the § 924(c) conviction, an enhancement for making a bomb
threat—another “use” of a bomb—would be similarly prohib‐
ited.
This analysis is clouded, however, by three of our deci‐
sions issued after the 2000 amendment. In those decisions, we
recognized and reinforced the distinction made in White I be‐
tween enhancements for the same weapon and conduct un‐
derlying a § 924(c) conviction and enhancements for different
underlying conduct without directly addressing whether that
division withstands the amendment to Application Note 4.
In Katalinic, we held that a death‐threat enhancement can‐
not be imposed for “death threats relating to the firearm form‐
ing the basis of the § 924(c) sentence.” 510 F.3d at 748. Our
conclusion reflected an interpretation of the amended appli‐
cation note and reliance on White I’s distinction between en‐
hancements arising from § 924(c) offense conduct and those
16 No. 17‐3236
reflecting conduct unrelated to the use of a firearm. See id. at
747 (describing White I as permitting a weapons‐related en‐
hancement to a robbery sentence because the use of a bomb
was “different underlying conduct” than the conduct leading
to a § 924(c) firearms conviction).
In a subsequent nonprecedential decision, we remarked
that Katalinic had “reaffirmed” White I after the 2000 amend‐
ment to Application Note 4. United States v. Moses, 284 F.
App’x 361, 363 (7th Cir. 2008). But we did not decide in Moses
whether the amended note prohibited an increase to a rob‐
bery sentence for using a fake bomb when the defendant al‐
ready had a § 924(c) conviction for using a firearm during the
same robbery. Id. Instead, we upheld the sentence in question
because the district court had alternatively justified it under
the statutory sentencing factors. Id. Most recently, in
United States v. Eubanks, 593 F.3d 645, 649–50 (7th Cir. 2010),
we employed White I’s framework to assess whether an en‐
hancement for using a B.B. gun to pistol whip a victim during
a robbery was permitted by the application note. We con‐
cluded that the enhancement could not be applied because the
defendant’s § 924(c) conviction for a firearm accounted for all
of the guns (including the B.B. gun) he and his codefendants
used during a robbery. Id. at 650.
So, although we have cited White I favorably in a few sub‐
sequent decisions, their holdings did not depend on its con‐
tinued validity. Moses was able to avoid the question about
the scope of Application Note 4. Katalinic reflected a straight‐
forward conclusion that enhancements for death threats re‐
lated to the firearm underlying the § 924(c) conviction are pro‐
hibited—an outcome observed to be consistent with White I’s
focus on whether the enhancement in question reflected the
No. 17‐3236 17
same or different conduct vis‐à‐vis the § 924(c) offense con‐
duct. And Eubanks relied on dicta in White I about treating all
firearms the same more than it relied on White I’s holding
about treating bombs and guns differently.
We take this opportunity to harmonize our caselaw. To the
extent that White I drew a line between enhancements based
on the same and different underlying conduct, that
distinction does not survive the Commission’s amendment to
Application Note 4 where the conduct is relevant conduct.
But we need not overturn Katalinic, Moses, and Eubanks
because, although they invoke White I approvingly, none
depend on White I’s pre‐amendment reasoning.
Our conclusion flows from the language the Commission
used in amending Application Note 4. It instructs that a dis‐
trict court is not permitted to impose any explosive or weapon
enhancement, whether it is part of the underlying offense or
relevant conduct, when a defendant is also sentenced under
§ 924(c). In so holding, our decision today in no way pre‐
cludes consideration of that conduct at sentencing as a factor
under 18 U.S.C. § 3553(a).
IV
Accordingly, the district court should not have applied the
enhancement for making a death threat to Foster’s sentence
for the underlying robbery count because Application Note 4
instructs that the threat was already accounted for by his
§ 924(c) sentence. We therefore VACATE Foster’s sentence
and REMAND for resentencing.