United States of America v. James Bey

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1163
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
J AMES BEY,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 107‐4 — Charles R. Norgle, Judge.
____________________
SUBMITTED MARCH 19, 2014 — D ECIDED A PRIL 10, 2014
____________________
Before P OSNER , KANNE , and T INDER , Circuit Judges.
P OSNER , Circuit Judge. James Bey and three others con‐
spired to rob the Waukegan, Illinois, branch of Associated
Bank. They chose that location because one of the four, La‐
toya Thompson, worked there and as an insider could make
a unique contribution to the crime. Bey gave David Schoen‐
haar, Jr. (another coconspirator) a pellet gun for use in the
robbery and waited in a nearby getaway car with the final
coconspirator, Trevor Gregory, while Schoenhaar entered

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2 No. 13‐1163
the bank, displayed the gun, and demanded money from the
vault. Thompson and a (coerced) coworker retrieved some
$221,000 from the vault and gave the money to Schoenhaar,
who led the two to a bathroom while pointing the gun at
them and saying he’d kill them if they left the bathroom. He
then left the bank—only to discover that Bey and Gregory
had gotten cold feet and fled. All four conspirators were ap‐
prehended, and charged with bank robbery and with con‐
spiracy to commit that offense. 18 U.S.C. §§ 371, 2113(a).
In the district court Bey, the only defendant before us in
this appeal, entered an “Alford plea” on each charge. That’s a
plea of guilty by a defendant who maintains his innocence,
but, perhaps thinking that if he goes to trial he’ll be found
guilty (and not be able to get the judgment overturned on
appeal), because there’s a mountain of evidence against him,
pleads guilty in hopes of obtaining a lighter sentence. As ex‐
plained in North Carolina v. Alford, 400 U.S. 25, 37 (1970),
“while most pleas of guilty consist of both a waiver of trial
and an express admission of guilt, the latter element is not a
constitutional requisite to the imposition of criminal penalty.
An individual accused of crime may voluntarily, knowingly,
and understandingly consent to the imposition of a prison
sentence even if he is unwilling or unable to admit his par‐
ticipation in the acts constituting the crime. Nor can we per‐
ceive any material difference between a plea that refuses to
admit commission of the criminal act and a plea containing a
protestation of innocence when, as in the instant case, a de‐
fendant intelligently concludes that his interests require en‐
try of a guilty plea and the record before the judge contains
strong evidence of actual guilt.”
The district judge gave the defendant concurrent sen‐

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No. 13‐1163 3
tences of 92 months for the robbery and 60 months for the
conspiracy—so effectively a 92‐month sentence. Because the
defendant doesn’t want to withdraw his guilty plea, the ap‐
peal challenges only the sentence. His lawyer advises us that
he can find no nonfrivolous ground for appealing from the
judgment, and so asks us to let him withdraw from repre‐
senting the defendant, in accordance with the procedure au‐
thorized by Anders v. California, 386 U.S. 738, 744 (1967). The
defendant disagrees that he has no nonfrivolous ground for
appealing.
We note parenthetically that the terms “frivolous” and
“nonfrivolous” are misleading in this context. Most claims or
arguments held to be “frivolous” are not silly or laughable,
as the word implies, but simply so clearly blocked by statute,
regulation, binding or unquestioned precedent, or some o‐
ther authoritative source of law that they can be rejected
summarily.
And since we’re discussing word usage, we take the op‐
portunity to question another bit of legal jargon. In innu‐
merable cases in which a criminal defendant’s lawyer files
an Anders brief our court states, usually as a prelude to
granting the lawyer’s motion to withdraw and dismissing
the appeal, that as long as the lawyer’s brief is “facially ade‐
quate” we’ll confine analysis to the issues discussed in the
brief and in the defendant’s response (if any) to it. See, e.g.,
United States v. Vallar, 635 F.3d 271, 289 (7th Cir. 2011); United
States v. Maeder, 326 F.3d 892, 893 (7th Cir. 2003) (per cu‐
riam). By “facially adequate” we mean that the brief appears
to be a competent effort to determine whether the defendant
has any grounds for appealing. That appearance reassures
us that the issues discussed in the brief are the only serious

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4 No. 13‐1163
candidates for appellate review and so the only ones we
need consider. We should say this rather than recite a for‐
mula—“facially adequate”—unlikely to be intelligible to the
prisoner to whom the Anders order is addressed; with his
lawyer having been allowed to withdraw, the prisoner may
have difficulty understanding the what and why of the or‐
der. We should say for example: “Counsel has submitted a
brief that explains the nature of the case and addresses the
issues that a case of this kind might be expected to involve.
Because the analysis in the brief appears to be thorough, we
limit our review to the subjects that counsel has discussed,
plus any additional issues that the defendant, disagreeing
with counsel, believes have merit.” See United States v. Wag‐
ner, 103 F.3d 551, 553 (7th Cir. 1996).
Turning at last to the merits, we begin with the strongest‐
seeming objection the defendant could make to his sentence
for robbery (the sentence that determined the overall length
of his prison term)—that he wasn’t one of the robbers. He
neither entered the bank nor even participated in the get‐
away; he may have sped away from the bank before the rob‐
bery was under way. And as he wasn’t one of the robbers,
why should he have been sentenced for robbery of the bank
as well as for conspiring to rob it? The answer is that he ad‐
mits having conspired to commit the bank robbery, and as a
conspirator he is liable under the doctrine of Pinkerton v.
United States, 328 U.S. 640, 647 (1946), for crimes committed
by his co‐conspirators in furtherance of the conspiracy, and
so for the robbery. Besides, the indictment to which he
pleaded guilty had also charged him with aiding and abet‐
ting the robbery—an independent ground for the govern‐
ment’s charging him as a principal. 18 U.S.C. § 2113(a).

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No. 13‐1163 5
The other objections that might be made to the sentence
but that Bey’s lawyer thinks could not possibly persuade us
involve the judge’s calculation of the guidelines sentencing
range. The judge determined Bey’s total offense level to be
31 and his criminal history category to be IV, yielding a
guidelines range of 151 to 188 months (making the sentence
that the judge imposed fall far below the bottom of the
range). The range was for the conspiracy and robbery
charges together, because they were grouped for purposes of
calculating the range, as required by U.S.S.G. § 3D1.2(b),
which requires grouping when the “counts [of which the de‐
fendant was convicted] involve[d] the same victim and two
or more acts or transactions connected by a common crimi‐
nal objective or constituting part of a common scheme or
plan.”
Among the other factors that generated Bey’s high of‐
fense level were that Schoenhaar had brandished (displayed)
a dangerous weapon, U.S.S.G. § 2B3.1(b)(2)(E), and had
physically restrained coconspirator Thompson’s innocent
coworker. § 2B3.1(b)(4)(B). These factors added five levels to
Bey’s offense level. In addition, rejecting the probation ser‐
vice’s recommendation for a 2‐level reduction for the defen‐
dant’s accepting responsibility for his crimes, § 3E1.1(a), the
judge instead added two offense levels for obstruction of jus‐
tice, § 3C1.1, on the basis of evidence that the defendant had
urged a potential witness to ignore a subpoena served by the
government to testify at the trial. The judge gave Bey two
additional two‐level enhancements, one for conspiring to rob
a “financial institution,” U.S.S.G. § 2B3.1(b)(1), the other for
the amount of money taken in the robbery. § 2B3.1(b)(7)(c).
And he refused to give the defendant a 2‐level reduction in
his offense level as a minor participant in the conspiracy.

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6 No. 13‐1163
§ 3B1.2(b).
We note regarding the increases in total offense level for
physically restraining the bank employee and brandishing a
“dangerous weapon” that the “weapon” needn’t be lethal as
long as it “closely resembles” a lethal weapon, U.S.S.G.
§§ 1B1.1, Application Note 1(D); 2B3.1(b)(2)(E); United States
v. Hart, 226 F.3d 602, 607 (7th Cir. 2000); United States v. Al‐
len, 516 F.3d 364, 375–76 (6th Cir. 2008)—which pellet guns
often do (see the photo below), especially ones used in a rob‐
bery, where they would lose most of their efficacy if they
were recognized as mere airguns.

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No. 13‐1163 7
Not that pellet guns are harmless unless aimed at small
rodents. People have been killed by them. See, e.g., Star‐
Ledger Editorial Board, “Pellet Guns Are Weapons Too,”
Jan. 9, 2009, http://blog.nj.com/njv_editorial_page/2009/01/
pellet_guns_are_weapons_too.html (visited April 10, 2014).
Bank tellers have good reason to fear them.
In opposing the increase in his offense level for physi‐
cally restraining the bank employee, Bey argues that he
never anticipated that Schoenhaar would brandish the gun
or physically restrain anyone. He says he thought that given
Thompson’s participation the robbery would be an inside
job and not perturb the bank’s customers or employees. But
he knew that Schoenhaar had taken the gun into the bank—
he’d given it to him for that purpose. And he had to know
that since the robbery would be committed while the bank
was still open for business, employees and customers would
be present and Schoenhaar might well use the gun to herd
them to somewhere in the bank in which they could neither
interfere with the robbery nor escape. He pointed the gun at
Thompson’s coworker (who was not an accomplice in the
robbery, unlike Thompson), herded her into the bathroom,
and threatened to kill her if she left it. See United States v.
Taylor, 620 F.3d 812, 813, 815 (7th Cir. 2010); United States v.
Carter, 410 F.3d 942, 954 (7th Cir. 2005). Such a use of the gun
was foreseeable to the defendant, making him culpable.
United States v. Dorsey, 209 F.3d 965, 967–98 (7th Cir. 2000).
As for whether his encouraging a potential witness (his
girlfriend) to ignore a trial subpoena was an obstruction of
justice, he argues that he told her to ignore it only because he
thought the government had dropped the charges against
him. He presented no evidence in support of this implausi‐

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8 No. 13‐1163
ble claim—not even an affidavit (which would have been
some evidence). Furthermore, the subpoena had not been
quashed, so he had to know that he was telling her to violate
a court order. So the finding of obstruction of justice stands,
and it greatly undermines his claim to be entitled to a sen‐
tencing discount for acceptance of responsibility.
Not that an increase in offense level for obstruction of
justice can never coexist with an acceptance of responsibility
discount. U.S.S.G. § 3E1.1, comment 4, says that “conduct
resulting in an enhancement … ordinarily indicates that the
defendant has not accepted responsibility for his criminal
conduct. There may, however, be extraordinary cases in
which adjustments under both §§ 3C1.1 [obstruction of jus‐
tice] and 3E1.1 [acceptance of responsibility] may apply.”
But there has to be evidence of contrition, see, e.g., United
States v. Mayberry, 272 F.3d 945, 947, 949–50 (7th Cir. 2001);
United States v. Salazar‐Samaniega, 361 F.3d 1271, 1278–80
(10th Cir. 2004), and not just a plea of guilty, which is often,
perhaps typically, opportunistic. The defendant expects a
lighter sentence if he pleads guilty than if he’s convicted af‐
ter a trial, and so if he doesn’t anticipate acquittal (and cer‐
tainly Bey could not have anticipated being acquitted had he
chosen to be tried) he might as well plead guilty, whether or
not he “accepts responsibility” in any meaningful sense for
having committed the crime.
And finally Bey has no plausible claim for a minor‐
participant reduction in his guidelines range. He insists that
he is less culpable than Thompson (who worked at the bank
and assisted in the robbery), Schoenhaar (the principal ex‐
ecutor of the robbery), and Gregory (Thompson’s boyfriend
and the driver of the getaway car). Actually he’s as culpable

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No. 13‐1163 9
as Schoenhaar and more culpable than the others: he re‐
cruited Schoenhaar to execute the robbery and supplied him
with the pellet gun that Schoenhaar used in the robbery. See,
e.g, United States v. McKee, 389 F.3d 697, 700 (7th Cir. 2004);
United States v. Nichols, 151 F.3d 850, 854 (8th Cir. 1998);
United States v. Lowery, 60 F.3d 1199, 1201–02 (6th Cir. 1995).
Given the defendant’s age (62) and poor health, a sen‐
tence of 92 months—almost eight years—is admittedly stiff.
But it is so far below the bottom of the guidelines range that
it cannot be thought excessive. We are pleased to see that the
district judge sentenced the defendant as far below the
guidelines range as he did in order to avoid imposing a sen‐
tence that in the circumstances would be “a sentence of life,”
citing a recent opinion of this court expressing concern about
sentences so long that they are likely to crowd the prisons
with the elderly. United States v. Craig, 703 F.3d 1001, 1002–04
(2012) (per curiam) (concurring opinion); see also United
States v. Johnson, 685 F.3d 660, 661–62 (7th Cir. 2012).
The motion of the defendant’s lawyer to withdraw is
granted and the appeal dismissed.

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