United States v. Duprece Jett

In the

United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-1622 & 19-1673
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

DUPRECE JETT and DAMION MCKISSICK,
Defendants-Appellants.
____________________

Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cr-00001 — Tanya Walton Pratt, Judge.
____________________

ARGUED OCTOBER 27, 2020 — DECIDED DECEMBER 15, 2020
____________________

Before SYKES, Chief Judge, and KANNE and ST. EVE, Circuit
Judges.
ST. EVE, Circuit Judge. A jury convicted Duprece Jett and
Damion McKissick of Hobbs Act conspiracy and attempted
robbery. In a previous appeal, we reversed the defendants’ at-
tempted-robbery convictions and remanded for resentencing
on the conspiracy count. United States v. Jett, 908 F.3d 252 (7th
Cir. 2018). The defendants now appeal from their resen-
tencings. They claim the district court erred under the
2 Nos. 19-1622 & 19-1673

Guidelines by using the preponderance-of-the-evidence
standard, and not the higher beyond-a-reasonable-doubt
standard, to decide whether they conspired to commit the
“object offenses” of the conspiracy. They also fault the district
court for increasing their original sentences on the conspiracy
count without explaining why. On the Guidelines issue, we
hold that the district court erred but that its error was harm-
less. We find no error in the district court’s sentencing expla-
nation. We thus affirm the defendants’ new sentences.
I. Background
We described the facts behind the defendants’ convictions
at length in our opinion addressing the defendants’ first ap-
peal. Jett, 908 F.3d at 259–63. We repeat those facts here only
as they relate to the current appeal.
A. Convictions
Two armed men dressed in 1970s-themed disguises
robbed three cash-and-check stores in the Indianapolis area in
the second half of 2015. An anonymous tip led officers to Jett
and McKissick. Officers began surveilling Jett and McKissick
and soon determined that they and a third man, Earl Walker,
were about to commit a fourth robbery. The officers decided
to intervene. On the morning of the anticipated fourth rob-
bery, Walker and McKissick were driving near a credit union
in a stolen car. The officers tried to pull them over, but Walker
(the driver) and McKissick sped off. Following a high-speed
chase, the officers arrested Jett, McKissick, and Walker.
A federal grand jury indicted the defendants and Walker
(who is not part of this appeal) on two counts: (1) conspiracy
in violation of the Hobbs Act, 18 U.S.C. § 1951(a); and (2) at-
tempted bank robbery “by force and violence, or by
Nos. 19-1622 & 19-1673 3

intimidation,” id. § 2113(a). The government alleged four
“overt acts” for Count 1: the three completed robberies and
the attempted robbery that preceded the defendants’ arrest.
Before trial, the defendants moved for a special verdict form
requiring the jury to find unanimously that the defendants
had committed one of the overt acts, and to agree on which
overt act they had committed. The district court denied the
motion.
At trial, the government introduced a range of evidence,
including: surveillance footage of the three robberies; text
messages between Jett and McKissick from the night before
the attempted robbery; cell-tower data placing the defendants
near the robberies; testimony that the bright orange vests that
the robbers wore during the first robbery matched Jett’s work
clothes; evidence of burnt items found at McKissick’s home,
including ski masks, gloves, and a backpack, all of which
matched the robbers’ gear; evidence that the defendants’
DNA was found on a ski mask, backpack, and airsoft pistol
recovered from the stolen car that McKissick and Walker had
used to flee from officers; incriminating statements that
McKissick made at the police station; and an incriminating
phone call between McKissick and his wife. The government
did not produce an eyewitness who could identify Jett or
McKissick as the robbers. The jury convicted the defendants
on both counts.
B. Initial Sentencings
Following their convictions at trial, the district court sen-
tenced Jett and McKissick to 293 months’ imprisonment.
McKissick received 203 months on Count 1 and 90 months on
Count 2, to run consecutively for a total of 293 months. Jett
received 209 months on Count 1 and 84 months on Count 2,
4 Nos. 19-1622 & 19-1673

to run consecutively for a total of 293 months. The defendants’
sentences were at the high end of the advisory Guidelines
range of 235 to 293 months, which resulted from total offense
levels of 33 and criminal history categories of VI. The court
calculated the defendants’ offense levels by separately group-
ing the three robberies and the attempted robbery, see USSG
§ 1B1.2(d), and then using the multiple-count adjustment
rules, see USSG §§ 1B1.1(a)(4), 3D1.1(a), 3D1.4, to increase the
highest offense level among the groups (30) by three levels.
The defendants’ criminal history categories were VI because
the Guidelines classified them as career offenders. Otherwise,
their criminal history categories would have been IV.
During both defendants’ sentencings, the court com-
mented on the strength of the evidence at trial. At McKissick’s
sentencing, the court stated that “the evidence at trial clearly
establishes that Mr. McKissick and Mr. Jett committed the first
three robberies.” The court also remarked, in reference to “is-
sues of cross-racial identification” raised at trial, that it had
“no doubt, whatsoever, that Mr. McKissick was the robber
that was identified” at trial. At Jett’s sentencing hearing, the
court commented, apparently in response to Jett’s allocution
in which he continued to maintain his innocence, that it was
“100 percent certain that Mr. Jett is guilty and that the partic-
ipation that he invoked in during this robbery -- the Court is
aware of exactly what Mr. Jett did.”
C. First Appeal
The defendants appealed their convictions, asserting vari-
ous trial errors. We reversed the defendants’ attempted-rob-
bery convictions because there was no evidence of force, vio-
lence, or intimidation, but we affirmed in all other respects.
Jett, 908 F.3d at 259. Relevant here, we rejected the defendants’
Nos. 19-1622 & 19-1673 5

argument that the district court erred in refusing to instruct
the jury on overt acts because “a Hobbs Act conspiracy does
not have an overt-act requirement.” Id. at 265. We remanded
with instructions for the district court to enter a judgment of
acquittal on Count 2 and resentence the defendants. Id. at 276.
Like the district court, we remarked at various times on
the strength of the evidence against Jett and McKissick at trial.
We did so, for example, when rejecting the defendants’ argu-
ment that the admission of certain expert testimony required
a new trial:
The evidence against Jett and McKissick on
Count 1 was plenty persuasive without [the ex-
pert’s] interpretation of the text messages. The
government needed only to prove that they con-
spired to commit bank robbery, and it admitted
surveillance footage that a jury could easily con-
clude showed Jett and McKissick actually com-
mitting the bank robberies together. Cell-phone
data further confirmed that both men were in
the area of the check-and-cash locations around
the times they were robbed. The government
also introduced evidence of burned items
matching what the robbers used at McKissick’s
home and McKissick’s incriminating statements
at the stationhouse.
Id. at 267.
D. Resentencings
On remand for resentencing on Count 1, a probation of-
ficer calculated the defendants’ advisory Guidelines ranges as
188 to 235 months. Although Count 2 was gone, the probation
6 Nos. 19-1622 & 19-1673

officer concluded that the defendants’ total offense levels
were still 33 because the same grouping analysis and multi-
ple-count adjustment applied based on the three robberies
and the attempted robbery. At the same time, the defendants’
criminal history categories were now IV rather than VI be-
cause of our intervening decision in D’Antoni v. United States,
916 F.3d 658 (7th Cir. 2019), which held that a conspiracy con-
viction that does not include force as an element is not a crime
of violence for purposes of the career-offender enhancement.
Id. at 665.
Both defendants objected to the probation officer’s pro-
posed grouping analysis. They argued that only a jury could
decide whether they had committed the four conspiracies un-
derlying their convictions on Count 1. The defendants relied
heavily on Application Note 4 to USSG § 1B1.2(d), which pro-
vides, for purposes of grouping conspiracy offenses, that
grouping “should only be applied with respect to an object
offense alleged in the conspiracy count if the court, were it
sitting as a trier of fact, would convict the defendant of con-
spiring to commit that object offense.” For its part, the gov-
ernment argued that grouping was appropriate as long as the
court found by a preponderance of the evidence that the de-
fendants had committed the robberies and attempted rob-
bery.
The district court overruled the defendants’ grouping ob-
jections. It agreed with the government that it could group the
conspiracies if it found by a preponderance of the evidence
that the defendants had committed each of them. It found that
they had. At Jett’s resentencing (which took place before
McKissick’s), the court stated: “There was more than a pre-
ponderance of the evidence. It was evidence beyond a
Nos. 19-1622 & 19-1673 7

reasonable doubt, and very strong direct and circumstantial
evidence of Mr. Jett’s participation in the conspiracy and all
of these acts in the conspiracy.” It then summarized the trial
evidence. Because “the evidence at trial was sufficient to show
that Mr. Jett and Mr. McKissick and Mr. Walker were co-con-
spirators in these—in the conspiracy,” the court overruled
Jett’s grouping objection. The court similarly overruled
McKissick’s grouping objection and found that the evidence
supported his commission of each conspiracy: “[C]learly, the
evidence supports a conspiracy of the three robberies which
were completed, as well as the conspiracy to commit a fourth
robbery.”
After overruling the defendants’ objections, the court
adopted the probation officer’s recommended advisory
Guidelines range of 188 to 235 months for both defendants.
Jett asked the court to sentence him “within the sentencing
guidelines, at the low end, where he would have been sen-
tenced—or where he was sentenced the last time.” McKissick
asked for a within-Guidelines sentence.
The court sentenced both defendants to 230 months’ im-
prisonment on Count 1. The court’s explanation for the de-
fendants’ new sentences was essentially the same as its expla-
nation for the defendants’ first sentences. Both times, the
court referenced various § 3553(a) factors but focused heavily
on the seriousness of the offenses and the defendants’ crimi-
nal histories and personal characteristics.
At Jett’s resentencing, the court remarked yet again on the
strength of the evidence, saying, “the Court is 100 percent cer-
tain that Mr. Jett conspired with Mr. McKissick and Walker
and participated in these acts, these crimes. And the Court is
confident of his participation and involvement in the three
8 Nos. 19-1622 & 19-1673

actual robberies and the substantial steps towards the fourth
robbery.”
The defendants now appeal their new sentences.
II. Discussion
The defendants argue that the district court committed
two procedural errors when resentencing them. First, they say
the court erred under the Guidelines by failing to apply the
reasonable-doubt standard when making factual findings
about the four distinct overt acts underlying their convictions
on Count 1. Second, they say the court failed to adequately
explain why it increased their original sentences on Count 1
at resentencing. We review procedural issues at sentencing de
novo. United States v. Salgado, 917 F.3d 966, 969 (7th Cir. 2019).
A. Guidelines Issue
When a defendant has multiple counts of conviction, the
Guidelines instruct the sentencing court to separately group
the counts and calculate the defendant’s total offense level by
taking the highest offense level from among the groups and
increasing it based on the number and seriousness of the other
groups. USSG §§ 1B1.1(a)(4), 3D1.1(a), 3D1.4.
These grouping rules apply to defendants convicted on
one count of conspiring to commit multiple offenses. USSG
§ 1B1.2(d) provides: “A conviction on a count charging a con-
spiracy to commit more than one offense shall be treated as if
the defendant had been convicted on a separate count of con-
spiracy for each offense that the defendant conspired to com-
mit.” Application Note 4 elaborates on how a court deter-
mines if the defendant conspired to commit each of the of-
fenses:
Nos. 19-1622 & 19-1673 9

Particular care must be taken in applying sub-
section (d) because there are cases in which the
verdict or plea does not establish which of-
fense(s) was the object of the conspiracy. In such
cases, subsection (d) should only be applied
with respect to an object offense alleged in the
conspiracy count if the court, were it sitting as a
trier of fact, would convict the defendant of con-
spiring to commit that object offense.
USSG § 1B1.2, comment. (n.4). When adding § 1B1.2(d) and
the application note to the Guidelines in 1989, the Sentencing
Commission explained that § 1B1.2(d) requires a judge to
make findings beyond a reasonable doubt. USSG App. C,
Vol. I, ¶ 75. The rationale was that “[a] higher standard of
proof should govern the creation of what is, in effect, a new
count of conviction.” Id.
We have not previously addressed whether USSG
§ 1B1.2(d) requires a sentencing judge to apply the reasona-
ble-doubt standard. Every other circuit to address the issue
has held that it does. United States v. Jones, 699 F. App’x 325,
326 (5th Cir. 2017) (per curiam); United States v. Bradley, 644
F.3d 1213, 1300 (11th Cir. 2011); United States v. Robles, 562
F.3d 451, 455 (2d Cir. 2009) (per curiam); United States v. Smith,
267 F.3d 1154, 1160 (D.C. Cir. 2001); United States v. Jackson,
167 F.3d 1280, 1285 (9th Cir. 1999); United States v. Conley, 92
F.3d 157, 168 (3d Cir. 1996).
We join those circuits today and hold that USSG § 1B1.2(d)
requires a sentencing judge to use the reasonable-doubt
standard, and not merely the preponderance-of-the-evidence
standard, to decide if a defendant conspired to commit each
“object offense” of the conspiracy. Application Note 4 to
10 Nos. 19-1622 & 19-1673

USSG § 1B1.2 asks if a judge, “sitting as a trier of fact, would
convict the defendant of conspiring to commit that object of-
fense.” There is only one standard of proof that a “trier of fact”
must use to “convict the defendant,” and that is reasonable
doubt. The Supreme Court has explained that Guidelines
commentary “is authoritative unless it violates the Constitu-
tion 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). We see no reason why Application Note
4 is an impermissible reading of USSG § 1B1.2(d). As such, it
is binding under Stinson.
The government does not dispute that USSG § 1B1.2(d) re-
quires a sentencing judge to make findings beyond a reason-
able doubt, nor does it dispute that the district court erred by
applying the lower preponderance-of-the-evidence standard.
Still, the government maintains that the district court’s error
does not require reversal because it was not plain error, and
in any event, it was harmless. The defendants say they pre-
served this issue below, so de novo review applies. We need
not decide what standard of review applies because, even if
de novo review applies, the court’s error was harmless.
An error is harmless if it does not affect a defendant’s
“substantial rights.” Fed. R. Crim. P. 52(a). “To prove harm-
less error, the government must be able to show that the
Guidelines error ‘did not affect the district court’s selection of
the sentence imposed.’” United States v. Abbas, 560 F.3d 660,
667 (7th Cir. 2009) (quoting United States v. Anderson, 517 F.3d
953, 965 (7th Cir. 2008)). This “removes the pointless step of
returning to the district court when we are convinced that the
sentence the judge imposes will be identical to the one we re-
manded.” Id.
Nos. 19-1622 & 19-1673 11

The district court’s Guidelines error was harmless because
the court made clear that it would have imposed the same
sentence on each defendant even if the higher reasonable-
doubt standard applied. The court said so explicitly for Jett,
commenting at his resentencing that there was “evidence be-
yond a reasonable doubt … of Mr. Jett’s participation in the
conspiracy and all of these acts in the conspiracy,” such that
“the conduct for the entirety of the conspiracy” was covered
under § 1B1.2(d). At the same hearing, the court said it was
“100 percent certain that Mr. Jett conspired with Mr.
McKissick and Walker and participated in these acts, these
crimes.” The court’s comments leave no doubt that it would
have applied the same grouping analysis for Jett if it had cor-
rectly found that § 1B1.2(d) requires the reasonable-doubt
standard.
The same holds true for McKissick, even though the court
never explicitly said that there was evidence beyond a reason-
able doubt that he had committed all four conspiracies. The
court commented repeatedly at the defendants’ initial sen-
tencing hearings and at their resentencings on the strength of
the evidence against McKissick. At McKissick’s initial sen-
tencing, the court said it had “no doubt, whatsoever, that Mr.
McKissick was the robber that was identified” at trial. At his
resentencing, the court found that “clearly, the evidence sup-
ports a conspiracy of the three robberies which were com-
pleted, as well as the conspiracy to commit a fourth robbery.”
Finally, the court commented at Jett’s resentencing that it was
“100 percent certain that Mr. Jett conspired with Mr. McKissick
and Walker and participated in these acts, these crimes.” (Em-
phasis added).
12 Nos. 19-1622 & 19-1673

And these comments were justified. As we observed in the
defendants’ first appeal, there was “convincing evidence of
Jett’s and McKissick’s guilt,” including surveillance footage of
the robberies; confirmatory cell-phone data; incinerated items
at McKissick’s home that matched items the robbers used; tes-
timony about the high-speed chase leading to McKissick’s ar-
rest; and McKissick’s incriminating stationhouse statements.
Jett, 908 F.3d at 271. From the surveillance footage alone, “a
jury could easily conclude [that] Jett and McKissick actually
commit[ed] the bank robberies together.” Id. at 267. Im-
portantly, there is no reason to believe that the evidence was
any less persuasive against McKissick than it was against Jett.
If anything, there was more evidence against McKissick, in-
cluding the burnt items found at his home and his incriminat-
ing statements.
On this record, the district court’s error was harmless as to
both defendants. The court’s comments at the initial sen-
tencings and the resentencings, along with the overwhelming
strength of the evidence against both defendants, convince us
that remanding for the court to reconsider, under the reason-
able-doubt standard, whether the defendants committed each
of the underlying overt acts would be a “pointless” exercise.
Abbas, 560 F.3d at 667.
B. Sentencing Explanation
The defendants’ next argument is that the district court
failed to explain why the same § 3553(a) factors and evidence
warranted higher sentences on Count 1 at resentencing.
A district court “must adequately explain the chosen sen-
tence to allow for meaningful appellate review and to pro-
mote the perception of fair sentencing.” Gall v. United States,
Nos. 19-1622 & 19-1673 13

552 U.S. 38, 50 (2007). “[I]t is not our role to justify a sentence
that lacks a sufficient explanation with our best guess for why
the court imposed the sentence that it did.” United States v.
Titus, 821 F.3d 930, 935 (7th Cir. 2016).
Again, the parties dispute whether plain-error or de novo
review applies. We need not resolve this dispute because
there was no error, let alone plain error.
The defendants rely on our recent decision in United States
v. Ballard, 950 F.3d 434 (7th Cir. 2020), for the proposition that
a district court must explain a difference between an initial
sentence and subsequent sentence on the same count. In Bal-
lard, we held that the district court “committed procedural er-
ror by not providing an adequate explanation for the major
upward departure from the Guidelines range on resentenc-
ing.” Id. at 437. At the defendant’s first sentencing, his advi-
sory Guidelines range was 180 to 210 months. Id. at 435. The
district court imposed a sentence of 232 months—a 10% up-
ward departure. Id. at 436. The defendant appealed, and we
vacated his sentence because the district court had errone-
ously applied a sentencing enhancement. Id. On remand,
without the sentencing enhancement, the defendant’s advi-
sory Guidelines range was much lower: 33 to 41 months. Id.
Citing the same § 3553(a) factors, the district court sentenced
the defendant to 108 months’ imprisonment. Id. That was a
160% upward departure. Id. The defendant again appealed,
and we agreed with him that the district court had failed to
adequately explain its sentence. Id. at 437. First, “[t]he court
provided no explanation for why consideration of the same
factors warranted a much greater departure on resentencing.”
Id. at 437. Second, “regardless of the proportional difference
between the first and second sentencing departures, a 160
14 Nos. 19-1622 & 19-1673

percent increase is an abnormally extreme departure from the
Guidelines recommendation,” and “the district court owed a
significant justification for that departure.” Id. at 437–38. Yet
the district court’s explanation was “essentially identical to
the explanation provided for a much less extreme departure
in the original sentence.” Id. at 437. We again vacated and re-
manded for resentencing. Id. at 439.
Ballard does not support the defendants’ position—in-
deed, it strongly undercuts it. In our case, the district court
did the opposite of what the district court had done in Ballard.
At the defendants’ first sentencings, the court sentenced them
both at the high end of the Guidelines range. On remand, it
sentenced them just below the high end of the Guidelines
range. In Ballard, what mattered was how the sentences com-
pared to the applicable Guidelines range. Here, the sentences
fell at almost the same spot in the Guidelines ranges. There
was no procedural error under Ballard.
Beyond Ballard, the defendants provide no authority for
their argument that the district court had to give them the
same sentences on Count 1 at resentencing or explain the dif-
ference. The Supreme Court has bluntly rejected the argu-
ment that a sentencing judge must consider each count in iso-
lation when fashioning a sentence: “Nothing in the law re-
quires such an approach.” Dean v. United States, 137 S. Ct.
1170, 1176 (2017). Indeed, the “sentencing package” doctrine
exists to allow a sentencing judge to reconfigure a sentence
for the remaining counts when an appellate court reverses a
conviction on some but not all counts following the initial sen-
tencing. Id.; Pepper v. United States, 562 U.S. 476, 507 (2011).
Here, we vacated the defendants’ convictions on Count 2 and
remanded for resentencing on Count 1, even though the
Nos. 19-1622 & 19-1673 15

district court had already sentenced the defendants on Count
1. That is because, with Count 2 gone, the sentencing calculus
changed. The advisory Guidelines range was also different,
which further altered the calculus. Put simply, there is no le-
gal basis for the defendants’ argument that the district court
had to give them the same sentences on Count 1 at resentenc-
ing or explain the difference. The district court did not err by
failing to explain why the defendants’ new sentences on
Count 1 did not match their initial sentences on Count 1. See
United States v. Kappes, 782 F.3d 828, 864 (7th Cir. 2015) (noting
that sentencing judges need not address meritless mitigation
arguments at sentencing).
AFFIRMED.