USA v. Gary Roberson, 06-1121. The defendant, with three accomplices, committed an armed bank robbery, netting $133,000, of which the defendant’s share was $50,000. He was charged with both bank robbery, 18 U.S.C. §§ 2113(a), (d), and using a firearm in a crime of violence (which bank robbery is). 18 U.S.C. § 924(c)(1)(A). It is unclear, but also irrelevant, whether Roberson was carrying a gun. One of his accomplices brandished a gun, and a defendant is liable for the reasonably foreseeable crimes committed by his accomplices in the course of the conspiracy, Pinkerton v. United States, 328 U.S. 640, 646-48 (1946) whether or not a conspiracy is charged. United States v. Chairez, 33 F.3d 823, 827 (7th Cir. 1994).
The defendant pleaded guilty to both crimes. The district judge sentenced him to one month in prison for the bank robbery and 84 months, to run consecutively to the robbery sentence, for the gun offense. Eighty-four months is the minimum sentence for the section 924(c)(1)(A) offense if the gun is “brandished,” § 924(c)(1)(A)(ii), and a section 924(c)(1) sentence cannot be made to run concurrently with any other sentence. § 924(c)(1)(D).
The government appeals, challenging the total sentence of 85 months as unreasonably low. The minimum guidelines sentence for a bank robbery that does not involve the use of a gun is 46 months, and when the consecutive 84-month sentence required by section 924(c)(1) is tacked on to the minimum guidelines sentence, the total is 130 months.
The judge based the sentence on a disagreement with Congress: “I find a 130 month sentence unreasonable on the facts of this case and contrary to the purposes of sentencing under §3553. Because I have no power to adjust the 84 month consecutive sentence, I have no alternative but to adjust the 46 month guideline part of the sentence so that the sentence, as a whole, is reasonable.”
The judge thought that automatically adding 84 months to the sentence for the bank robbery in which the gun was used unreasonably limited her discretion. She is of course entitled to her view, but she is not entitled to override Congress’s contrary view. Booker confers no authority on judges to disregard statutes.
A further justification that the judge offered for the sentence she imposed was that the government should not have charged a violation of section 924(c)(1). The judge regarded that as overkill. She thus was criticizing the government for how it had exercised its prosecutorial discretion. The judiciary has no authority to second-guess the government’s choice of which crimes to charge, United States v. LaBonte, 520 U.S. 751, 761-62 (1997).
As there is no statutory minimum for bank robbery, it is conceivable that a one-month sentence would be reasonable, but it would have to be an extraordinary case. Extraordinary not only because such a sentence would be so far below the guidelines range, but also because, the guidelines to one side (for they are, after all, just advisory now), bank robbery is a very serious crime. The defendant was an adult, was compos mentis, stole an unusually large amount of money for a bank robbery, was a gang member who refused to cooperate with the police out of loyalty to the gang, and was on probation for an attempted armed robbery when he committed the bank robbery.
Although our review of a sentence that is within the statutory range is deferential, it is not abject; and in this case the unreasonableness of the judge’s one-month sentence for the bank robbery is palpable. So not only are the factors on which the district judge was entitled to rely too attenuated to justify a one-month sentence for a major bank robbery, but they were not weighed in a reasonable manner.
“Booker has nothing to do with minimum sentences.” United States v. Cannon, 429 F.3d 1158 (7th Cir. 2005). “The judiciary is not free to replace Congress’s approach with one that it deems superior.” United States v. Miller, 450 F.3d 270 (7th Cir. 2006).
The district judge was therefore required to determine the proper sentence for the bank robbery entirely independently of the section 924(c)(1) add-on; and in light of the aggravating factors that we have discussed, a sentence below the minimum guidelines sentence for the robbery in this case would be difficult, perhaps impossible, to justify as reasonable.
The judgment is reversed with instructions to the district judge to resentence the defendant in conformity with this opinion.
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