United States of America v. Cortney Hall

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 22, 2007
Decided March 1, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2985
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CORTNEY HALL,
Defendant-Appellant.
Appeal from the United States
District Court for the Northern
District of Illinois, Western Division
No. 05 CR 50030-2
Philip G. Reinhard,
Judge.
O R D E R
Cortney Hall pleaded guilty to robbing a bank with two of his associates.
18 U.S.C. § 2113(a). The Presentence Investigation Report (“PSR”) recommended
increasing his sentence by two levels for using a minor to commit the crime.
U.S.S.G. § 3B1.4. Over Hall’s objection, the district court applied the enhancement
and sentenced him to 102 months’ imprisonment. On appeal Hall argues that he
did not affirmatively act to involve the minor and thus should not have received the
enhancement. For the reasons that follow, we affirm.
The bank robbery at issue in this appeal has already been the subject of a
recently published decision concerning Hall’s co-defendant, Keith Brazinskas. See
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-2985 Page 2
United States v. Brazinskas, 458 F.3d 666 (7th Cir. 2006). In that case, we upheld a
two-level enhancement to Brazinskas’s base offense level for use of a minor to
commit the offense.
In March 2005 Hall, Brazinskas, and Robert Eviston agreed to rob a bank in
Rockford, Illinois. In the week preceding the robbery, Eviston lived at Hall’s house
with Kassandra Guevara, who was fifteen years old at the time. Hall and Eviston
discussed the execution of the robbery in her presence. Eviston asked Guevara to
aid them in the robbery by sitting in the getaway car with him so that he would
look less suspicious waiting outside of the bank. According to Eviston, “Cassandra
[sic] knew what was going on and she was with me because we thought if a guy and
girl were together it would look good as we drove away.”
On the day of the robbery, Hall remained at home, while Eviston and
Guevara drove Brazinskas to the bank. When they arrived, Brazinskas entered,
pointed a pellet gun at the bank teller’s face, handed her a plastic bag, and ordered
her to fill it. After the teller did so, Brazinskas ran back to the car, where Eviston
and Guevara were waiting, and the trio sped off. What Brazinskas did not realize
was that the teller had placed an explosive dye pack in the bag. The dye pack
exploded, staining the money with red ink. After disposing of the bag, Eviston,
Guevara, and Brazinskas took the stained money to Hall’s house, where Guevara
and the conspirators tried to remove the dye stains from the money. Hall
apparently had other house guests, so Guevara was responsible for guarding the
money when Hall and his coconspirators were not around. Once they finished
cleaning the money, Hall, Eviston, and Brazinskas each took a portion and then
buried the rest in Hall’s backyard.
Police arrested Hall the following day. He was charged with robbing a bank
in violation of 18 U.S.C. § 2113(a). He eventually pleaded guilty to the charge, but
objected, among other things, to the PSR’s suggested enhancement under U.S.S.G.
§ 3B1.4 for use of a minor. After noting that Hall and Eviston discussed the bank
robbery in Guevara’s presence, the district court found that Hall knew Guevara
would be there and that he affirmatively planned the robbery with her involvement.
On appeal Hall argues that the district court improperly applied the
enhancement under U.S.S.G. § 3B1.4 for use of a minor because the record does not
show that he took affirmative actions to involve Guevara in the robbery. That
guideline requires a two-level increase in offense level where the defendant “used”
or “attempted to use” a person under eighteen to commit the offense or assist in
avoiding detection of the offense. The application notes explain that the phrase
“used or attempted to use” includes actions like “directing, commanding,
encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting.”

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No. 06-2985 Page 3
U.S.S.G. § 3B1.4 n.1. We review sentences imposed by the district court for
reasonableness. See Brazinskas, 458 F.3d at 667-68. We review the factual
findings that the district court made in calculating the advisory guidelines range for
clear error and review the district court’s interpretation of the guidelines de novo.
See id.
At oral argument, Hall relied heavily on our recent pronouncement regarding
a defendant’s “use” of a minor, United States v. Acosta, 474 F.3d 999 (7th Cir. 2007),
where we clarified that the word “use” in the guideline requires a showing of some
affirmative act by the defendant beyond mere knowledge of participation by the
minor in the criminal activity. That case, however, is distinguishable. Whereas in
Acosta there was virtually no evidence of the defendant’s personal involvement with
the minors, see id. at 1000-01, here the record shows that Hall allowed Guevara to
reside with him for the entire week before the robbery; that Hall and Eviston
hatched the scheme in her presence; and that Hall participated with her in
cleaning, counting, and guarding the money. Given this evidence, we conclude that
the district court’s finding that Hall affirmatively used a minor in committing the
crime was not clearly erroneous.
AFFIRMED.

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