NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 27, 2019
Decided March 29, 2019
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 18‐1439
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 16 CR 10‐2
DARRYL SARGENT,
Defendant‐Appellant. Amy J. St. Eve,
Judge.
O R D E R
Darryl Sargent pleaded guilty to two counts of bank robbery and one count of
attempted bank robbery, see 18 U.S.C. § 2113(a), and was sentenced to 70 months in
prison. Based on notes that Sargent and a coconspirator presented to tellers during the
robberies, the judge imposed a two‐level, threat‐of‐death enhancement for each of the
bank‐robbery convictions. See U.S.S.G. § 2B3.1(b)(2)(F). Sargent appealed, but his
appointed counsel, believing all potential appellate arguments to be frivolous, seeks to
withdraw and asks us to dismiss the appeal. See Anders v. California, 386 U.S. 738 (1967).
Sargent has not responded to counsel’s motion. See 7TH CIR. R. 51(b). We limit our
review to the subjects that counsel has discussed, see United States v. Bey, 748 F.3d 774,
No. 18‐1439 Page 2
776 (7th Cir. 2014), and agree that an appeal would be frivolous. We therefore grant the
motion to withdraw and dismiss the appeal.
Counsel assures us that Sargent instructed him that he does not wish to
challenge the voluntariness of his guilty plea or the adequacy of the plea colloquy, and
therefore appropriately does not discuss either of these issues. See FED. R. CRIM. P. 11(b);
United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d
667, 670–71 (7th Cir. 2002).
Counsel considers whether Sargent could challenge the applications of
§ 2B3.1(b)(2)(F) and concludes that Sargent has waived any such challenge. True,
counsel neither presented the argument in his sentencing memorandum nor objected at
the sentencing hearing to the judge’s guidelines calculation, but at most the argument
would be forfeited rather than waived. See United States v. Pankow, 884 F.3d 785, 790–91
(7th Cir. 2018). Assuming then that Sargent merely forfeited an objection and that
review would be for plain error, id. at 790, we nevertheless agree that a challenge to the
applications of § 2B3.1(b)(2)(F) would be frivolous. That guideline provision requires a
two‐level increase in offense level “if a threat of death was made” in furtherance of a
robbery. The judge adopted the probation officer’s recommendation that Sargent and
his coconspirator made death threats in each of the demand notes used in the two
robberies.
As Sargent admitted in his plea agreement, in the first robbery, he waited in a
getaway car while his coconspirator entered the bank and handed the teller a note
stating: “THIS IS A ROBBERY. GIVE ME ALL BIG BILLS FIRST. I HAVE A BOMB IN
THE BAG AND A GUN. HURRY AND NOBODY GETS HURT.” It would be frivolous
to argue that the judge plainly erred in concluding that this statement was a threat of
death in furtherance of a robbery. See U.S.S.G. § 2B3.1 cmt. n.6. Even if the coconspirator
made the threat and not Sargent, the judge could reasonably conclude based on
Sargent’s admissions in his plea agreement that a threat of death was foreseeable. See id.
§ 1B1.3(a)(B)(iii); United States v. Smith, 697 F.3d 625, 636 (7th Cir. 2012).
Sargent also admitted in his plea agreement to the threatening circumstances of
the second bank robbery. This time the coconspirator waited in the car while Sargent
entered the bank and handed the teller a note stating: “I have a gun. This is a robbery.
Give me all the big bills.” As counsel properly observes, it would be frivolous to
challenge this enhancement based on plain error given the absence of any circumstances
that would strip the words “I have a gun” of their “ordinary and expected meaning.”
United States v. Carbaugh, 141 F.3d 791, 794–95 (7th Cir. 1998). Indeed, the judge
No. 18‐1439 Page 3
observed that she was “troubled” by “the fear [Sargent] instilled in the bank teller.” See
U.S.S.G. § 2B3.1 cmt. n.6 (stating that the enhancement applies when the defendant’s
conduct “would instill in a reasonable person, who is a victim of the offense, a fear of
death”).
Next, counsel considers whether Sargent could argue that he should have
received an additional reduction in the offense level for acceptance of responsibility
(three rather than two) because he pleaded guilty before trial. See U.S.S.G. § 3E1.1(b).
Because “the plea [was] on the eve of trial,” the judge did not apply the additional
reduction. That reduction is appropriate only if sought by the government, and here it
was not. See United States v. Deberry, 576 F.3d 708, 709 (7th Cir. 2009). Any such
challenge would therefore be frivolous.
Counsel also correctly concludes that challenging the substantive reasonableness
of Sargent’s sentence would be frivolous. His 70‐month sentence was at the bottom of
his guidelines range of 70 to 87 months (based on a total offense level of 25 and
criminal‐history category of III). A sentence within a properly calculated guidelines
range is presumptively reasonable, United States v. Cunningham, 883 F.3d 690, 701
(7th Cir. 2018), and we see nothing to rebut that presumption. The court sufficiently
considered the relevant sentencing factors under 18 U.S.C. § 3553(a), noting repeatedly
that she was “troubled” by his “very serious” offense and by the “escalating” nature of
his conduct from being “just a lookout” to becoming a robber.
Last, to the extent counsel suggests that Sargent might challenge his effectiveness
in the district court, that claim is best pursued in a collateral proceeding in which the
record can be more fully developed. Massaro v. United States, 538 U.S. 500, 504–05 (2003);
Crutchfield v. Dennison, 910 F.3d 968, 975 (7th Cir. 2018).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.