In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2529
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ANTHONY D. COOK,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 14‐CR‐226 — J.P. Stadtmueller, Judge.
____________________
ARGUED DECEMBER 8, 2016 — DECIDED MARCH 7, 2017
____________________
Before MANION, KANNE, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. Anthony Cook participated in an
armed robbery of a Community Financial Service Center
(“CFSC”) in Milwaukee. He pled guilty to obstruction of
commerce by robbery and to brandishing a firearm during
the commission of a crime of violence. Over Cook’s objec‐
tion, the district court applied two enhancements to his sen‐
tence: a 2‐level increase for causing a loss to a financial insti‐
tution and a 2‐level increase for physically restraining a per‐
2 No. 15‐2529
son during a robbery. On appeal, Cook argues that the dis‐
trict court erred in applying those enhancements. We disa‐
gree, so we affirm.
I. BACKGROUND
On January 6, 2013, Cook and three others—Coleman
Ferrell, Claudene Rutledge, and Vernell Staten—robbed a
CFSC in Milwaukee. Ferrell entered the CFSC and tackled
the security guard to the ground. Ferrell drew his firearm
and pointed it at the guard’s face, threatening to shoot. Cook
then entered wearing a mask and approached the teller,
Rutledge, who was in on the robbery. Rutledge promptly
opened the door to the safe, and Cook took approximately
$337,100 in cash. He placed the cash in a plastic garbage bag.
Cook and Ferrell then fled the scene with the cash in a geta‐
way vehicle driven by Staten.
On December 2, 2014, a grand jury returned a three‐
count indictment against Cook. Count one charged him with
conspiracy to obstruct commerce by robbery in violation of
18 U.S.C. §§ 1951(a) and 2. Count two charged him with ob‐
struction of commerce by robbery in violation of 18 U.S.C.
§§ 1951(a) and 2 (“Hobbs Act Robbery”). And count three
charged him with brandishing a firearm during the commis‐
sion of a crime of violence in violation of 18 U.S.C.
§§ 924(c)(1)(A)(ii) and 2. Cook and the government entered
into a plea agreement, in which Cook agreed to plead guilty
to counts two and three, and the government agreed to dis‐
miss count one.
The plea agreement also included a recommended sen‐
tencing guidelines calculation for count two. Cook and the
government agreed that the base offense level for the offense
No. 15‐2529 3
charged in count two was 20 under U.S.S.G. § 2B3.1(a). They
further agreed to recommend a 3‐level increase under
§ 2B3.1(b)(7)(D) for a loss of over $250,000 and a 3‐level de‐
crease under §§ 3E1.1(a) and (b) for acceptance of responsi‐
bility. The government also recommended two additional
enhancements: (1) a 2‐level increase under § 2B3.1(b)(1) for
causing a loss to a financial institution and (2) a 2‐level in‐
crease under § 2B3.1(b)(4)(B) for physically restraining a per‐
son during a robbery. Both of these additional enhancements
were included in the plea agreement’s calculation, but with
the disclaimer that Cook “may oppose the government’s
recommendation” as to these enhancements. (R. 35 at ¶¶ 17,
18.) The plea agreement thus recommended an adjusted total
offense level of 24 for count two.
The probation office then completed a presentence inves‐
tigation report (“PSR”), which included its own guidelines
calculation. The probation office’s calculation mirrored the
calculation in the plea agreement, recommending an adjust‐
ed total offense level of 24 for count two.
At the sentencing hearing, Cook objected to the two addi‐
tional enhancements included in the plea agreement and the
PSR. First, he argued that the CFSC was not a financial insti‐
tution under § 2B3.1(b)(1). Second, he argued that imposing
the physical‐restraint enhancement under § 2B3.1(b)(4)(B)
would result in impermissible double counting of the same
relevant conduct. The district court rejected each of these ar‐
guments and applied the guidelines calculation included in
the plea agreement and the PSR. Based on Cook’s criminal
history category of IV and his adjusted offense level of 24,
the district court determined that the recommended guide‐
lines range for count two was 77 to 96 months. The court fur‐
4 No. 15‐2529
ther determined that count three carried a mandatory mini‐
mum of 84 months’ imprisonment. The court sentenced
Cook to a below‐guidelines sentence of 60 months on count
two and 84 months on count three, to be served consecutive‐
ly. Additionally, the court imposed a five‐year term of su‐
pervised release and ordered that Cook pay $337,100 in resti‐
tution.
II. ANALYSIS
On appeal, Cook argues that the district court improperly
applied the financial‐institution and physical‐restraint en‐
hancements. We review de novo the district court’s applica‐
tion of the sentencing guidelines. United States v. Lewis, 842
F.3d 467, 476 (7th Cir. 2016). We begin with Cook’s argu‐
ments regarding the financial‐institution enhancement un‐
der § 2B3.1(b)(1) and conclude with his arguments regarding
the physical‐restraint enhancement under § 2B3.1(b)(4)(B).
A. Financial‐Institution Enhancement
Cook first argues that the district court erred by applying
an enhancement under § 2B3.1(b)(1), which provides for a 2‐
level enhancement “[i]f the property of a financial institution
or post office was taken.” He first contends that the CFSC is
not a financial institution. Alternatively, he argues that the
term “financial institution” is unconstitutionally vague. We
begin with his first argument.
When interpreting a specific provision of the sentencing
guidelines, we “begin with the text of the provision and the
plain meaning of the words in the text.” United States v. Hill,
645 F.3d 900, 907–08 (7th Cir. 2011) (quoting United States v.
Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005)). As part of this
analysis, we also consider the guideline’s application notes,
No. 15‐2529 5
which “are considered part of the guidelines rather than
commentary on the guidelines.” United States v. Rabiu, 721
F.3d 467, 471 (7th Cir. 2013). “[A]n application note has ‘con‐
trolling weight unless it is plainly erroneous or inconsistent
with’ the text of the guideline it interprets.” United States v.
Rollins, 836 F.3d 737, 742 (7th Cir. 2016) (quoting Stinson v.
United States, 508 U.S. 36, 45 (1993)). The application notes to
§ 2B3.1, however, are silent as to the meaning of financial in‐
stitution.
The government argues that the application notes to a
different section—U.S.S.G. § 2B1.1, a separate guideline that
permits an enhancement for larceny or other theft involving
fraud or deceit of a financial institution—are instructive
here. Those application notes define “financial institution” in
relevant part as “any state or foreign bank, trust company,
credit union, insurance company, investment company, mu‐
tual fund, savings (building and loan) association, union or
employee pension fund … and any similar entity.” U.S.S.G.
§ 2B1.1 cmt. n.1. But because those application notes pertain
to a different guideline, they are not binding on our interpre‐
tation of § 2B3.1. Our plain meaning analysis is thus limited
to the text of that guideline.
Black’s Law Dictionary broadly defines “financial institu‐
tion” as “[a] business, organization, or other entity that
manages money, credit, or capital, such as a bank, credit un‐
ion, savings‐and‐loan association, securities broker or dealer,
pawnbroker, or investment company.” Black’s Law Diction‐
ary, 663 (8th ed. 2004). The CFSC seems to fit this definition.
According to its website, “CFSC is a third‐generation, fami‐
ly‐owned check cashing company with 175+ locations na‐
tionwide.” CFSC, About, https://www.cfsc.com/about/.
6 No. 15‐2529
Moreover, it offers its customers a variety of financial ser‐
vices including check cashing, money transfers, money or‐
ders, bill payments, and short‐term loans. (R. 53‐2.) In fact,
the term “financial” is in its name—Community Financial
Service Center.
Cook argues that this definition of financial institution is
too broad, sweeping in far too many types of businesses
within the enhancement’s scope. He thus argues in favor of
an alternative definition: a financial institution is an entity
that serves a depository function. To reach this conclusion,
Cook considers the text of the guideline. Because the guide‐
line also covers the robbery of a post office—which is a de‐
pository of mail—Cook contends that all entities covered by
the guideline must serve a similar depository function. A
bank—which is a depository of money—is Cook’s paradig‐
matic example of a financial institution.
We are unpersuaded by Cook’s definition. He has cited
no authority for it; nor could we find any. Moreover, alt‐
hough a post office is a depository, it is a depository of mail,
not money: the functions of banks and post offices are inher‐
ently different. Accordingly, we reject limiting the definition
of “financial institution” to those entities that serve a deposi‐
tory function.
We also think it is unnecessary to delve into the specific
contours of the definition of financial institution here. We
think it is enough to say that a business that offers an array
of financial services, including check cashing, money trans‐
fers, money orders, and loans, surely fits within the plain
meaning of the term “financial institution.” We hold that the
CFSC is a financial institution under § 2B3.1(b)(1).
No. 15‐2529 7
Alternatively, Cook argues that the term “financial insti‐
tution” is unconstitutionally vague, relying on our decision
in United States v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016)
(en banc) (invalidating § 4B1.2(a)(2)’s residual clause as un‐
constitutionally vague). This week, the Supreme Court over‐
turned that decision, holding that “the Guidelines are not
subject to a vagueness challenge under the Due Process
Clause.” Beckles v. United States, 580 U.S. ___, No. 15‐8544,
slip op. at 5 (Mar. 6, 2017). Cook’s vagueness argument is
thus without merit.
B. Physical‐Restraint Enhancement
Cook next argues that the district court erred by applying
an enhancement under § 2B3.1(b)(4)(B), which provides for a
2‐level enhancement “if any person was physically re‐
strained to facilitate commission of the offense or to facilitate
escape.” Here, the district court applied this enhancement
because of the actions of Cook’s accomplice, Ferrell, who
tackled the security guard and held him at gunpoint.
To start, Cook doesn’t dispute that Ferrell’s conduct con‐
stituted a physical restraint. “[T]he fundamental characteris‐
tic of the physical‐restraint enhancement is to punish one for
depriving a person of his freedom of physical movement
… .” United States v. Black, 636 F.3d 893, 900 (7th Cir. 2011).
By tackling the security guard and pointing a gun at his face,
Ferrell clearly deprived the guard of his freedom of physical
movement. That is exactly the type of conduct that the phys‐
ical‐restraint enhancement covers. See id.
Cook also doesn’t dispute that Ferrell’s physical restraint
was attributable to him as relevant conduct under
§ 1B1.3(a)(1)(B). Ferrell’s act constituted “relevant conduct”
8 No. 15‐2529
attributable to Cook because it was clearly within the scope
of, in furtherance of, and reasonably foreseeable in connec‐
tion with their joint act of robbery. See U.S.S.G.
§ 1B1.3(a)(1)(B).
Instead, Cook argues that the district court erred by im‐
permissibly double counting Ferrell’s act of physical re‐
straint, which resulted in the imposition of a longer sentence.
In the sentencing context, double counting refers to the dis‐
trict court’s use of the same conduct more than once to in‐
crease a defendant’s sentence. United States v. Vizcarra, 668
F.3d 516, 519 (7th Cir. 2012). Double‐counting claims come in
two varieties. First, a defendant may claim that the district
court used the same conduct to form the factual basis for an
element of the underlying offense and to support an en‐
hancement. Second, a defendant may claim that the district
court used the same conduct to support multiple enhance‐
ments. Id. Cook’s claim is of the first variety. In short, he ar‐
gues that the district court impermissibly double counted
Ferrell’s restraint of the guard as both an element of the un‐
derlying offense of Hobbs Act Robbery and as conduct giv‐
ing rise to the 2‐level enhancement under § 2B3.1(b)(4)(B).
Cook’s argument, however, is a nonstarter. He cites two
of our cases to support his argument: (1) United States v.
Senn, 129 F.3d 886 (7th Cir. 1997), and (2) United States v. Tay‐
lor, 620 F.3d 812 (7th Cir. 2010). In those cases, we applied a
general rule that “a characteristic shared by all instances of a
crime is reflected in the base offense level for the crime and
therefore is unavailable for use as an enhancement.” Taylor,
620 F.3d at 815; see also Senn, 129 F.3d at 897 (holding that
impermissible double counting occurs “if the offense itself
necessarily includes the same conduct as the enhancement”).
No. 15‐2529 9
We followed that general rule in other cases. See, e.g., United
States v. Bell, 598 F.3d 366, 372 (7th Cir. 2010) (“Impermissi‐
ble double counting occurs when … the same underlying
facts that establish an element of the base offense are used to
justify an upward enhancement.”); United States v. Rodgers,
610 F.3d 975, 978 (7th Cir. 2010) (citing Senn, 129 F.3d at 897
and Bell, 598 F.3d at 372–73 for the same proposition).
But in 2012, we reversed course, holding that “the same
conduct may determine the base offense level and also trig‐
ger cumulative sentencing enhancements and adjustments
unless the text of the applicable guideline explicitly states
otherwise.” Vizcarra, 668 F.3d at 525. We therefore clarified
that “there is no background rule against double counting in
the guidelines.” Id. Instead, double counting is presumed
permissible as a “mechanism employed by the guidelines in
part to reflect the seriousness of the offense.” United States v.
Loffredi, 718 F.3d 991, 994 (7th Cir. 2013). Any language in
our earlier cases contradicting our holding in Vizcarra is no
longer good law: Cook’s reliance on Senn and Taylor is mis‐
placed.
Even assuming that the district court double counted
Ferrell’s restraint of the guard as both an element of the un‐
derlying offense of Hobbs Act Robbery and for purposes of
the enhancement under § 2B3.1(b)(4)(B), a premise the gov‐
ernment contests, the court committed no error.1 Again, we
1 We note that double counting may not have even occurred here. As we
discussed in Taylor, in a portion of the opinion that likely survived our
decision in Vizcarra, it is possible to commit federal robbery without an
act of physical restraint. 620 F.3d at 815–16. Therefore, physical restraint
is not an element of federal robbery. Although Taylor involved federal
(continued…)
10 No. 15‐2529
presume that this counting was permissible absent an indica‐
tion to the contrary in the guidelines. Because
§ 2B3.1(b)(4)(B) and its application notes contain no explicit
prohibition against double counting the act of physical re‐
straint, the presumption of permissibility cannot be over‐
come. The district court properly applied the physical‐
restraint enhancement.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgment and sentence.
(…continued)
bank robbery under 18 U.S.C. § 2113(a) and not specifically Hobbs Act
Robbery, those crimes overlap to a significant degree. See United States v.
Starks, 472 F.3d 466, 470 (7th Cir. 2006). Most importantly, they contain
the same use‐of‐force requirement, which is the element of federal rob‐
bery that Cook argues is synonymous with physical restraint.