### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 3318

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

R ANDY W ILLIAMS

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 2:17

‐ cr

‐ 20049

— Sara Darrow

, Chief Judge

.

____________________

A RGUED D ECEMBER 6, 2019

— D ECIDED F EBRUARY 11, 2020

____________________

Before R OVNER

, B RENNAN

, and S T

. E VE

, Circuit Judges

.

S T

. E VE

, Circuit Judge

. On July 28, 2016, two men entered a

Sprint store with a gun, threatened and zip

‐ tied all witness

‐

es, grabbed some merchandise, and fl ed the store in two ve

‐

hicles. Randy Williams was one of the getaway drivers. He

was caught and indicted for obstruction of commerce by

robbery under 18 U.S.C. § 1951.2 No. 18

‐ 3318

Williams pleaded not guilty. Judge Colin S. Bruce presid

‐

ed over his jury trial, and, on June 14, 2018, the jury found

Williams guilty. A few months later, it became public that

Judge Bruce had engaged in ex parte communications with

members of the United States A tt orney’s O ffi ce for the Cen

‐

tral District of Illinois (the “O ffi ce”). As a result, all criminal

cases assigned to Judge Bruce were reassigned to other judg

‐

es. Williams’s case was reassigned to now Chief Judge Dar

‐

row who presided over his sentencing hearing and sen

‐

tenced him to 180 months’ imprisonment.

Williams now appeals his conviction and sentence. He

argues that Judge Bruce’s ex parte communications with the

O ffi ce violated his due process rights and the federal recusal

statute, warranting a new trial. We conclude that Judge

Bruce did not violate Williams’s due process rights on the

facts before us. And although Judge Bruce’s conduct created

an appearance of impropriety violating the federal recusal

statute, there is no evidence of actual bias in this case to jus

‐ tify a new trial.

As to his sentence, Williams contends that he is entitled

to a new sentencing hearing because Chief Judge Darrow

improperly found that he was a career o ff ender and was

subject to a fi rearm enhancement. Williams does not qualify

as a career o ff ender, but the district court’s fi nding otherwise

was not plain error. Chief Judge Darrow thoroughly consid

‐

ered the § 3553(a) factors, made clear that she would impose

the same sentence even if the career o ff ender provision did

not apply, and explained her reasons for this position. Be

‐

cause there was su ffi cient evidence regarding the use of a

fi rearm during the crime, we also hold that the district court

did not err in applying a fi rearm enhancement. We a ffi rm hisNo. 18

‐ 3318 3

conviction and sentence. We also grant Williams’s unop

‐ posed motion to supplement the record on appeal.

I. Background

In June 2018, Judge Bruce presided over Williams’s trial

where a jury found him guilty of robbery. At trial, Assistant

United States Attorneys Elham Peirson and Ryan Finlen rep

‐

resented the government with the assistance of paralegal

Staci Klayer.

Before his appointment to the district court, Judge Bruce

had worked as a federal prosecutor in the Office for twenty

‐

four years and, not surprisingly, maintained friendships

with some of his former colleagues while on the bench. In

August 2018, a newspaper reported that Judge Bruce had

engaged in ex parte communications with the Office during

the criminal trial of United States v. Nixon

, a case over which

Judge Bruce presided. In those emails, Judge Bruce criticized

the prosecutor (Peirson) as being “entirely unexperienced”

turning a “slam

‐ dunk” case into a “60

‐ 40” for the defendant.

As a result of the news coverage and the aftermath, then

Chief Judge Shadid removed Judge Bruce from all cases in

‐ volving the Office.

The Judicial Council of the Seventh Circuit appointed a

Special Committee to review the judicial misconduct com

‐ plaints filed against Judge Bruce based on his ex parte com

‐

munications with the Office. The Special Committee re

‐ quested and reviewed documents, conducted interviews,

and held a hearing at which Judge Bruce testified. In re

‐

sponse to the Special Committee’s document request, the Of

‐

fice conducted a review to determine whether other ex parte

communications existed. It subsequently disclosed to the4 No. 18

‐ 3318

Special Committee approximately 1,230 communications be

‐

tween Judge Bruce and members of the Office. The Special

Committee determined that, although many of them ap

‐ peared to be innocuous, approximately 100 of these commu

‐

nications constituted potential ex parte communications

about cases pending before Judge Bruce. Some of them con

‐

cerned warrant approvals, successful appeals in one of Judge

Bruce’s cases, scheduling matters, or a defendant’s conduct

on bond, often with Klayer. In others, Judge Bruce addressed

former colleagues, including Klayer, by nicknames and con

‐ gratulated them on favorable outcomes. And in some com

‐

munications, Judge Bruce reassured former colleagues after

they made filing mistakes. In one instance, he stated “My

bad. You’re doing fine. Let’s get this thing done.” In another,

he suggested that Klayer call the First Assistant “and advise”

while noting that luckily “they have an understanding judge

who doesn’t get angry.” None of these communications per

‐

tained to Williams’s case.

The Special Committee then submitted to the Judicial

Council a report explaining its findings and recommenda

‐

tions, which the Judicial Council adopted. The Special

Committee saw “no evidence and received no allegation that

Judge Bruce’s conduct or ex parte communications impacted

any of his rulings or advantaged either party.” In re Com

‐ plaints Against Dist. Judge Colin S. Bruce

, Nos. 07

‐ 18

‐ 90053, 07

‐

18

‐ 90067 (7th Cir. Jud. Council May 14, 2019). “And with the

exception of the Nixon

‐ related and appeal

‐ related emails,”

the Special Committee saw “no evidence of Judge Bruce dis

‐ cussing the merits of pending cases with the Office ex parte.”

Id. The Judicial Council publicly reprimanded Judge Bruce

and kept him unassigned from any cases involving the Of

‐

fice until September 1, 2019.No. 18

‐ 3318 5

Months before the Special Committee issued its report,

Williams’s case was reassigned to Chief Judge Darrow, who

presided over his sentencing hearing. Williams and his

counsel reviewed Williams’s revised presentence investiga

‐

tion report (“PSR”) and had no objections to it. The PSR cal

‐

culated a total offense level of 32 and a criminal history cate

‐

gory of VI, noting that “as the defendant is a career offender,

a criminal history category of VI shall apply pursuant to

USSG §4B1.1(b).” The advisory Guidelines range was calcu

‐

lated at 210 to 240 months, and both sides agreed to the dis

‐

trict court’s recitation of the Guidelines provisions. Wil

‐

liams’s counsel never requested a below Guidelines sen

‐

tence; he requested a sentence at the bottom of the Guide

‐

lines range.

At sentencing, Chief Judge Darrow considered the

§ 3553(a) factors. She noted that this offense is “as serious as

it gets.” The offense involved terrorizing individuals at gun

‐ point with explicit threats and physically restraining them

with zip

‐ ties just to steal cellphones. The district court de

‐

termined that the following enhancements were adequate:

20 levels for the robbery, 6 levels for the firearm, 2 levels for

physically restraining the victims, and 1 level for the value of

stolen property.

For his role in the offense, the district court determined

that a role adjustment was not appropriate. Williams fully

participated in the crime and knew what the other partici

‐

pants were doing inside the store. Although Williams’s con

‐

duct was not as culpable as the person who used the gun

during the robbery, he was more culpable than the person

who merely loaned them the car.6 No. 18

‐ 3318

The district court next considered Williams’s personal

history and characteristics. The district court noted that he is

a career offender because he has prior convictions for deliv

‐

ery of a controlled substance and aggravated sexual abuse.

She stated that the resulting Guidelines range may be too

high given his age and criminal record. But she concluded

that Williams still represents a “very strong recidivism con

‐

cern” in part because of his criminal history. “[T]here’s a

trend here of more serious criminal conduct” over time “and

this is the most serious.” Williams had also violated every

term of supervised release, except the most recent one. Giv

‐

en her duty to protect the public, a hope that a longer sen

‐

tence would deter him from committing future crimes, and

his role in this serious offense, the district court sentenced

him to 180 months’ imprisonment. In imposing a below

Guidelines sentence, the district court expressly stated that

she would impose the same sentence even if the career of

‐

fender provision did not apply. Williams now appeals both

his conviction and sentence.

II. Discussion

A. Ex Parte Communications

Williams argues that Judge Bruce’s ex parte communica

‐

tions with the Office violated both his due process rights and

the federal recusal statute, warranting a new trial. Although

none of the ex parte communications concerned Williams’s

case, some of them were either about or involved Peirson,

the Office’s Assistant United States Attorney who prosecut

‐

ed Williams’s case, and Klayer, the Office’s paralegal assist

‐ ing with his trial. Because Judge Bruce’s ex parte communi

‐

cations were disclosed after Williams’s trial, we review hisNo. 18

‐ 3318 7

claims de novo. See United States v. Atwood

, 941 F.3d 883, 885

(7th Cir. 2019).

1. Due Process Clause

The Due Process Clause guarantees litigants an impartial

judge and a fair trial. See Bracy v. Gramley

, 520 U.S. 899, 904–

05 (1997). Courts presume that judges are honest, upright

individuals who rise above biasing influences. Franklin v.

McCaughtry

, 398 F.3d 955, 959 (7th Cir. 2005). But that pre

‐ sumption is rebuttable. Id. at 960. Whether a judge should be

recused is an objective inquiry; courts do not ask “whether

the judge is actually, subjectively biased, but whether the

average judge in his position is ‘likely’ to be neutral, or

whether there is an unconstitutional ‘potential for bias.’”

Caperton v. A.T. Massey Coal Co.

, 556 U.S. 868, 881 (2009).

This does not require proof of actual bias, “though actual

bias, if disclosed, no doubt would be grounds for appropri

‐

ate relief.” Id. at 883. “[B]ad appearances alone do not re

‐ quire disqualification.” Del Vecchio v. Ill. Dep’t of Corr.

, 31

F.3d 1363, 1372 (7th Cir. 1994) (en banc); see also Suh v. Pierce

,

630 F.3d 685, 691–92 (7th Cir. 2011) (rejecting the argument

that recusal is required “in the absence of any possibility of

actual bias—that is, based solely on how the situation might

have ‘appeared’ to an outside observer.”). To prove a dis

‐ qualifying bias, there must be evidence of “either actual bias,

or a possible temptation so severe that we might presume an

actual, substantial incentive to be biased.” Del Vecchio

, 31

F.3d at 1380. For the latter, courts must determine whether

“the probability of actual bias on the part of the judge or de

‐

cisionmaker is too high to be constitutionally tolerable.” Rip

‐

po v. Baker

, 137 S. Ct. 905, 907 (2017) (per curiam) (quoting

Withrow v. Larkin

, 421 U.S. 35, 47 (1975)).8 No. 18

‐ 3318

Courts have identified a limited set of circumstances that

meet this standard. First, actual bias is disqualifying. See, e.g.

, Franklin

, 398 F.3d at 961–62 (finding actual bias where there

was evidence that the judge determined that defendant was

guilty before trial). Second, “there is an impermissible risk of

actual bias when a judge earlier had significant, personal in

‐

volvement as a prosecutor in a critical decision regarding the

defendant’s case.” Williams v. Pennsylvania

, 136 S. Ct. 1899,

1905 (2016). Third, a judge is disqualified when the judge has

a financial incentive in the case’s outcome. See, e.g.

, Rippo

,

137 S. Ct. at 906; Caperton

, 556 U.S at 877–78; Bracy

, 520 U.S.

at 906, 909; Bracy v. Schomig

, 286 F.3d 406, 413, 419 (7th Cir.

2002) (en banc). Lastly, a judge should recuse himself when

the judge becomes “personally embroiled” with a litigant.

Mayberry v. Pennsylvania

, 400 U.S. 455, 465–66 (1971); see also

Del Vecchio

, 31 F.3d at 1373–75.

This case does not fit into these buckets. Williams has not

provided any evidence of actual bias. To the contrary, the

Special Committee found “no evidence and received no alle

‐ gation that Judge Bruce’s conduct or ex parte communica

‐

tions impacted any of his rulings or advantaged either par

‐ ty.” It is undisputed that none of the ex parte communica

‐

tions concerned Williams’s case. Nor is there any evidence

that Judge Bruce had a pecuniary interest in the outcome,

previously worked on the case as a prosecutor, or became

“personally embroiled” with the parties.

Williams’s only evidence is an exchange between Judge

Bruce and Peirson that occurred before voir dire, and on the

record in open court regarding pre

‐ trial evidentiary issues.

MS. PEIRSON: So I just wanted to let the Court know

... I’m not trying to be sneaky. It’s just not somethingNo. 18

‐ 3318 9

that I thought about until I looked—examined his

statement more closely. He does make that statement,

and that’s not an issue for purposes of—

THE COURT: I have never found you ever to be

sneaky. If anything, you are overly cautious.

MS. PEIRSON: Thank you, Your Honor.

THE COURT: “Sneaky” is de fi nitively not a word I

would use with you.

Williams contends this is proof of Judge Bruce’s personal bi

‐

as in favor of the government because he “personally

vouch[ed] for [the prosecutor’s] integrity.” This argument

fails. There is nothing improper about this exchange, which

occurred before both parties, on the record, in open court,

and outside the presence of the jury.

Williams also argues that there is a due process violation

here because, although the ex parte communications were

about other cases, they expose a preexisting relationship be

‐

tween Judge Bruce and specific members of the Office who

were prosecuting Williams. He focuses on Judge Bruce’s

friendship with Klayer. But a preexisting relationship alone

does not create a due process violation. Del Vecchio

, 31 F.3d

at 1372. Judges are humans and will bring their experiences

to the bench. “[N]ot all temptations are created equal. We

expect—even demand—that judges rise above these poten

‐

tial biasing influences, and in most cases we presume judges

do.” Id. Williams has presented no evidence to rebut this

presumption. Although Klayer was in the courtroom during

Williams’s trial, there is no evidence that she had any influ

‐

ence in his case or that Judge Bruce and Klayer had any ex

parte communications about Williams’s case.10 No. 18

‐ 3318

The cases Williams cites to the contrary are factually dis

‐ tinguishable. Most of them involve evidence of actual bias or

a strong risk of actual bias. See Rivera v. Superintendent

Houtzdale SCI

, 738 F. App’x 59, 65–66 (3d Cir. 2018) (stating

that evidence of judge’s personal relationship with the uncle

of the victim and potential interference with judicial case as

‐ signment create a strong risk of actual bias); Barney v. Con

‐

way

, 730 F. Supp. 2d 264, 279–80 (W.D.N.Y. 2010) (finding

that defendant presented “clear and uncontroverted docu

‐

mentary proof” of an actual bias that predetermined the case

outcome); Abdygapparova v. State

, 243 S.W.3d 191, 208–10

(Tex. App. 2007) (finding that the judge’s written communi

‐

cations with the state regarding potential jurors, defendant’s

voir dire questions, and case presentation were strong evi

‐

dence of bias and partiality); In re Paternity of B.J.M.

, 925

N.W.2d 580, 588 (Wis. Ct. App. 2019) (finding that accepting

a litigant’s Facebook “friend” request after an evidentiary

hearing but before entering a ruling created a great risk of

actual bias), review granted

, Miller v. Carroll

, 933 N.W.2d 489

(Aug. 14, 2019). Another case involved ex parte communica

‐

tions regarding the case’s substance. See State v. Bard

, 181

A.3d 187, 200–01 (Me. 2018) (per curiam). And in State v.

Daigle

, 241 So. 3d 999 (La. 2018) (per curiam), the judge’s ac

‐

tions violated the Code of Criminal Procedure and he erro

‐ neously denied having a social media relationship with the

victim’s widow, among other things, warranting recusal.

We conclude that Judge Bruce did not violate Williams’s

due process rights by presiding over his trial.

2. Federal Recusal Statute

Pursuant to 28 U.S.C. § 455(a), “[a]ny justice, judge, or

magistrate judge of the United States shall disqualify himselfNo. 18

‐ 3318 11

in any proceeding in which his impartiality might reasona

‐ bly be questioned.” The statute is intended to avoid even an

appearance of impartiality. Liljeberg v. Health Servs. Acquisi

‐

tion Corp.

, 486 U.S. 847, 865 (1988). Statutes like this one

“provide more protection than due process requires.” See

Williams

, 136 S. Ct. at 1908 (quoting Caperton

, 556 U.S. at

890); United States v. Herrara

‐ Valdez

, 826 F.3d 912, 919 n.1 (7th

Cir. 2016).

Here, the government concedes that there has been a

statutory violation; a reasonable person might question

Judge Bruce’s impartiality based on the post

‐judgment dis

‐

closure of the communications between him and the Office.

The government argues, however, that the error was harm

‐

less. To determine whether an error is harmless, we look to

the three factors the Supreme Court articulated in Liljeberg :

(1) “the risk of injustice to the parties in a particular case,”

(2) “the risk that the denial of relief will produce injustice in

other cases,” and (3) “the risk of undermining the public’s

confidence in the judicial process.” Liljeberg

, 486 U.S. at 864;

see also Atwood

, 941 F.3d at 885; Williamson v. Ind. Univ.

, 345

F.3d 459, 464 (7th Cir. 2003).

Not every violation of § 455(a) warrants a drastic reme

‐ dy, like a new trial. Liljeberg

, 486 U.S. at 862. We have been

cautious about granting new trials based on the mere ap

‐

pearance of impropriety. See In re Bergeron

, 636 F.3d 882, 883

(7th Cir. 2011) (“Actual bias would entitle the losing party to

a new trial, but the mere appearance of bias would not ....”);

see also United States v. Betts

‐ Gaston

, 860 F.3d 525, 534–36 (7th

Cir. 2017).12 No. 18

‐ 3318

We recently decided one case regarding the implications

of Judge Bruce’s communications. * In United States v. Atwood

, Judge Bruce sentenced Atwood after he pleaded guilty to

three counts of federal drug crimes. On appeal, Atwood ar

‐ gued that Judge Bruce’s § 455(a) violation entitled him to re

‐ sentencing by a different judge. 941 F.3d at 885. Like here,

none of the ex parte communications concerned Atwood’s

case. Applying the Liljeberg factors, we identified a real risk

of unfairness to Atwood, a risk of injustice to other litigants

in future cases, and risk of harm to the public’s confidence in

the impartiality of the judiciary if we affirmed Atwood’s

sentence. Id. at 885–86. Based on the facts in that case, we

held that Judge Bruce’s failure to recuse himself from sen

‐ tencing Atwood did not constitute harmless error and re

‐

manded the case for resentencing. Id. at 886.

A key difference exists between this case and Atwood

. In

Atwood

, the defendant entered a guilty plea, and Judge Bruce

presided over his sentencing hearing. Here, Williams plead

‐

* There are pending post

‐ judgment motions before the district court

in several other cases regarding Judge Bruce’s conduct. See United States

v. Gmoser

, No. 2:14

‐ cr

‐ 20048

‐ JES

‐ 4 (C.D. Ill. Oct. 2, 2018), ECF No. 309;

United States v. Nixon

, No. 2:15

‐ cr

‐ 20057 (C.D. Ill. Oct. 25, 2018), ECF No.

173; United States v. Lopez

, No. 2:16

‐ cr

‐ 20004 (C.D. Ill. May 15, 2019), ECF

No. 68; United States v. Brown

, No. 2:14

‐ cr

‐ 20007 (C.D. Ill. July 9, 2019),

ECF No. 88; United States v. Vasquez

, No. 2:17

‐ cr

‐ 20003 (C.D. Ill. Jan. 17,

2019), ECF No. 52. There are also several pending motions under § 2255.

See Thomas v. United States

, No. 2:18

‐ cv

‐ 02032 (C.D. Ill. Dec. 21, 2018),

ECF No. 10; Shannon v. United States

, No. 2:18

‐ cv

‐ 02233 (C.D. Ill. Jan. 21,

2019), ECF Nos. 11–12; Liggins v. United States

, No. 2:19

‐ cv

‐ 02129 (C.D. Ill.

May 16, 2019), ECF No. 1; Parker v. United States

, No. 2:19

‐ cv

‐ 2318 (C.D.

Ill. Nov. 25, 2019), ECF No. 1; Collins v. United States

, Nos. 2:19

‐ cv

‐ 02339

(C.D. Ill. Dec. 20, 2019), ECF No. 1; Farrington v. United States

, No. 2:19

‐

cv

‐ 2314 (C.D. Ill. Jan. 3, 2020), ECF No. 9.No. 18

‐ 3318 13

ed not guilty, and a jury found him guilty. Moreover, Judge

Bruce did not preside over Williams’s sentencing hearing.

This distinction matters because judges generally have more

discretion over sentencing than the outcome of a jury trial.

As we noted in Atwood

, “‘[t]he open

‐ endedness of the

§ 3553(a) factors leaves ample room for the court’s discre

‐

tion’

... That discretion invites the risk that a judge’s person

‐

al biases will influence or appear to influence the sentence he

imposes.” Id. at 885 (quoting United States v. Warner

, 792 F.3d

847, 855 (7th Cir. 2015)). After applying the Liljeberg factors

to the particular facts in this case, we conclude that the error

here was harmless and does not warrant a new trial.

The first Liljeberg factor requires us to consider the risk of

injustice to the parties in this particular case. We begin with

the risk to Williams. The totality of the facts suggests that

there is little risk of unfairness in upholding Williams’s con

‐

viction. First and significantly, while some ex parte commu

‐

nications included Peirson or Klayer, it is undisputed that

none of these communications concerned Williams’s case.

There is also no evidence that either Peirson or Klayer had

any influence on the outcome here. Second, although Judge

Bruce presided over Williams’s trial, he was not the trier of

fact making the ultimate determination of whether the gov

‐

ernment had proved Williams guilty beyond a reasonable

doubt. A jury found Williams guilty, and Williams has not

questioned the jury’s impartiality. Third, Judge Bruce made

minimal rulings before and during trial, none of which ei

‐

ther party challenges on appeal. As to his pre

‐ trial rulings,

Judge Bruce granted routine scheduling and appearance mo

‐

tions for both parties. He denied the government’s discovery

motion as moot, but he granted the government’s motion to

bar an alibi defense because Williams failed to file a response14 No. 18

‐ 3318

or object. Judge Bruce also denied as moot Williams’s mo

‐

tion in limine to bar the government from introducing evi

‐

dence of prior convictions because the government repre

‐

sented that it did not intend to introduce such evidence in its

case in chief. The court specifically noted in its order that

“should circumstances change at trial, and the government

attempt to introduce such evidence during its case in chief,

Defendant may revive his motion.” Williams has not argued

that any of these rulings prejudiced him. Indeed, the rulings

were not controversial or contested and generally pertained

to routine matters.

As to his trial rulings, Judge Bruce equally granted and

denied objections from both parties. Judge Bruce sustained

eight out of eighteen of defendant’s objections and two out

of four of the government’s objections. He also denied Wil

‐

liams’s Rule 29(a) motion at the close of the government’s

case and his renewed Rule 29 motion at the close of all evi

‐

dence. None of these rulings suggest that Judge Bruce’s ap

‐

pearance of bias had any impact on the outcome of Wil

‐

liams’s trial. Nor does Williams argue that any particular

ruling was prejudicial.

Williams attempts to rebut these facts by arguing that

under the government’s view, “the harmlessness inquiry

would always require proof of actual bias, and would thus

render § 455(a)’s prohibition on the appearance of bias a nul

‐ lity.” We disagree. The Supreme Court in Liljeberg cautioned

that “[a]lthough § 455 defines the circumstances that man

‐

date disqualification of federal judges, it neither prescribes

nor prohibits any particular remedy for a violation of that

duty.” Liljeberg

, 486 U.S. at 862. Rather it is up to each court

to determine what remedy is appropriate on a case

‐ by

‐ caseNo. 18

‐ 3318 15

basis. Williams has the burden of showing that at least some

of the Liljeberg factors counsel in favor of a new trial. A mere

statutory violation alone does not automatically entitle him

to a new trial.

Also for the first factor, we must consider the risk of in

‐ justice to the government if a new trial is granted. We agree

with the government that the costs of retrial pose a signifi

‐

cant risk of injustice to it. The government would likely

spend valuable time and money to retry this case thereby

diverting resources from other cases. See United States v. Cer

‐

ceda

, 172 F.3d 806, 814 (11th Cir. 1999) (en banc) (per curiam).

Williams’s case is distinguishable from Atwood in that re

‐ gard. Unlike Williams, Atwood pleaded guilty and request

‐

ed a resentencing by a different judge. Atwood

, 941 F.3d at

884. “[A] remand for resentencing, while not costless, does

not invoke the same difficulties as a remand for retrial does.”

Rosales

‐ Mireles v. United States

, 138 S. Ct. 1897, 1908 (2018)

(citing Molina

‐ Martinez v. United States

, 136 S. Ct. 1338, 1348–

49 (2016)). This factor favors denying Williams’s request for

a new trial.

The second Liljeberg factor asks us to evaluate the risk

that the denial of requested relief will produce injustice in

future cases. Williams argues that enforcing § 455(a) here

may warn judges and litigants to more carefully consider

possible grounds for disqualification before trial in other

cases. The government contends that the Special Commit

‐

tee’s Report has minimized the risk of similar, future viola

‐

tions. The Special Committee and the Judicial Council un

‐

dertook a thorough investigation and review of the com

‐ plaints against Judge Bruce, including requesting and re

‐ viewing document productions from Judge Bruce and the16 No. 18

‐ 3318

Office, conducting interviews, and holding a hearing at

which Judge Bruce testified. The Special Committee submit

‐

ted a detailed report to explain its finding and recommenda

‐

tions, which the Judicial Council adopted and made public.

The Judicial Council subsequently issued an order publicly

reprimanding Judge Bruce and ordering that he remain un

‐ assigned from any matters involving the Office until Sep

‐

tember 1, 2019. In re Complaints Against Dist. Judge Colin S.

Bruce

, Nos. 07

‐ 18

‐ 90053, 07

‐ 18

‐ 90067 (7th Cir. Jud. Council

May 14, 2019). Moreover, Judge Bruce changed his practices

in response to the inquiry. He adopted a policy prohibiting

any email communications with counsel, prepared a stand

‐

ard response to any future ex parte communications initiat

‐

ed by litigants, and created a system that populates cham

‐

bers email and his work email into separate inboxes. These

changes should help reduce any future problems. In this

case, we believe that this factor leans towards denying Wil

‐

liams’s requested relief.

The last Liljeberg factor focuses on the risk of undermin

‐ ing the public’s confidence in the judicial process. This factor

is a close call. Here, the fact that Williams was convicted by a

jury of his peers is significant. Unlike a sentencing, where

“the most significant restriction on a judge’s ample discre

‐

tion is the judge’s own sense of equity and good judgment,”

Atwood

, 941 F.3d at 886, a judge has less discretion over the

outcome of a jury trial. We can imagine a case where a judge

has substantial discretion and his rulings have a significant

impact on the outcome, thus undermining the public’s con

‐

fidence in the judicial process. But this is not one of those

cases.No. 18

‐ 3318 17

As discussed above, none of Judge Bruce’s pre

‐ trial and

trial rulings suggest any actual bias. And the Special Com

‐

mittee did not find any evidence that “Judge Bruce’s conduct

or ex parte communications impacted any of his rulings or

advantaged either party” in any case. On the other hand,

overturning a jury verdict based purely on the appearance of

bias creates a risk that the public will lose confidence in the

judicial process. See, e.g.

, Cerceda

, 172 F.3d at 815–16; see also

Bergeron

, 636 F.3d at 883–84; Marcavage v. Bd. of Trs. of Temple

Univ.

, 232 F. App ʹ x 79, 84 (3d Cir. 2007). And requiring wit

‐

nesses to relive this serious crime by testifying at a retrial

would pose unwarranted hardship on the witnesses when

all evidence suggests the original trial was fair and impartial.

This final factor slightly favors upholding Williams’s convic

‐

tion.

Because all three Liljeberg factors suggest that the statuto

‐

ry violation was harmless error, we deny Williams’s request

for a new trial and affirm his conviction.

B. Sentencing

Despite telling the district court that he had no objections

to the PSR, Williams argues that the court improperly calcu

‐

lated his Guidelines range based on a career offender status

and a firearm enhancement. The government concedes that

Williams does not qualify as a career offender. It contends

that the district court’s sentence was not plain error because

the judge made clear that she would impose the same sen

‐

tence based on § 3553(a) factors even if he did not qualify as

a career offender. The government also argues that the fire

‐

arm enhancement was proper.18 No. 18

‐ 3318

When a defendant forfeits an objection to his sentence in

the district court, we review the sentence for plain error.

United States v. Lynn

, 851 F.3d 786, 794 (7th Cir. 2017). Under

the plain error standard, a defendant must prove a “(1) an

error or defect (2) that is clear and obvious (3) affecting the

defendant’s substantial rights (4) and seriously impugning

the fairness, integrity, or public reputation of judicial pro

‐ ceedings.” United States v. Jenkins

, 772 F.3d 1092, 1097 (7th

Cir. 2014). We have repeatedly stated that “a sentencing

based on an incorrect Guidelines range constitutes plain er

‐

ror and warrants a remand for resentencing, unless we have

reason to believe that the error in no way affected the district

court’s selection of a particular sentence.” Id. (quoting United

States v. Love

, 706 F.3d 832, 841 (7th Cir. 2013)).

1. Career Offender Status

A defendant is a career offender if he “has at least two

prior felony convictions of either a crime of violence or a

controlled substance offense.” U.S.S.G. § 4B1.1(a)(3). The

PSR stated that Williams has two prior convictions that trig

‐

ger the career offender provision: one for Illinois aggravated

criminal sexual abuse and another for unlawful delivery of a

controlled substance.

The government concedes that Williams’s aggravated

criminal sexual abuse conviction is not a crime of violence.

We agree. Whether a prior conviction qualifies as a crime of

violence is a legal question we review de novo. See United

States v. Edwards

, 836 F.3d 831, 834 (7th Cir. 2016).

Courts use a categorical approach to determine sentenc

‐ ing enhancements. See, e.g., United States v. Woods, 576 F.3d

400, 403–04 (7th Cir 2009). Under the categorical approach,No. 18

‐ 3318 19

sentencing courts compare the elements that form the basis

of defendant’s state conviction with the federal Guidelines. If

the state statute’s elements are the same as, or narrower

than, those of the generic offense, the crime qualifies. See,

e.g.

, Descamps v. United States

, 570 U.S. 254, 257, 261 (2013);

United States v. Campbell

, 865 F.3d 853, 855–56 (7th Cir. 2017).

When a state statute defines multiple crimes, i.e., is “divisi

‐

ble,” courts apply a modified categorical approach and may

consult a limited set of documents to determine which of

‐

fense defendant was convicted of committing. See Edwards

,

836 F.3d at 835.

The Guidelines define a crime of violence as any offense

punishable by imprisonment for more than a year that (1)

“has as an element the use, attempted use, or threatened use

of physical force against the person of another,” or (2) is, as

relevant here, “a forcible sex offense.” U.S.S.G. § 4B1.2(a); see

United States v. McDonald

, 592 F.3d 808, 812 n.1 (7th Cir.

2010) (noting that the “use of physical force” means the in

‐

tentional use of force).

Williams’s prior conviction did not involve the use of

force. He was convicted of aggravated criminal sexual abuse

under 720 ILCS 5/11

‐ 1.60. The Illinois statute criminalizes a

wide range of conduct and is divisible. See 720 ILCS 5/11

‐

1.60; see also United States v. Fifer

, 188 F. Supp. 3d 810, 834

(C.D. Ill. 2016). The PSR states that Williams, “who was 17

years of age or older, committed an act of sexual conduct

with S.W., who was under 13 years of age when [Williams]

committed the act, in that [Williams] placed his hand on the

vagina of S.W. for the purpose of sexual arousal of [him

‐ self].” Relevant here, a person violates that portion of the

statute if he is 17 years or older and “commits an act of sexu

‐20 No. 18

‐ 3318

al conduct with a victim who is under 13 years of age.” 720

ILCS 5/11

‐ 1.60(c)(1)(i). Sexual conduct means “any knowing

touching or fondling by the victim or the accused, either di

‐ rectly or through clothing, of the sex organs, anus, or breast

of the victim or the accused, or any part of the body of a

child under 13 years of age

... for the purpose of sexual grat

‐

ification ....” 720 ILCS 5/11

‐ 0.1. This statute does not require

“the use, attempted use, or threatened use of physical force.”

See, e.g.

, People v. Calusinski

, 733 N.E.2d 420, 423–24 (Ill. App.

Ct. 2000) (affirming conviction of kissing a child).

Nor is it a forcible sex offense. The Guidelines commen

‐

tary defines forcible sex offense as including “offenses of

sexual abuse of a minor and statutory rape” if the conduct is

either an offense under 18 U.S.C. § 2241(c) or an offense un

‐

der state law that would have been an offense under

§ 2241(c). U.S.S.G. § 4B1.2, cmt. n.1. The latter requires proof

that the defendant engaged in a “sexual act,” which includes

“the intentional touching, not through the clothing, of the

genitalia of another person who has not attained the age of

16 years with an intent to abuse, humiliate, harass, degrade,

or arouse or gratify the sexual desire of any person.” 18

U.S.C. § 2246(2). The Illinois statute is broader than the fed

‐

eral statute for two reasons. First, the Illinois statute includes

abuse for touching a person through clothing while the fed

‐

eral statute does not. And second, it also encompasses touch

‐ ing of “any part of the body” while the federal statute re

‐ quires touching “of the genitalia of another person.”

Because Williams’s prior conviction for aggravated crim

‐

inal sexual abuse is not a crime of violence, it is not a quali

‐ fying predicate offense. Williams thus does not qualify as a

career offender. We do not need to decide whether his priorNo. 18

‐ 3318 21

drug conviction is a controlled substance offense under the

career offender provision because one prior conviction is in

‐

sufficient to trigger it. See U.S.S.G. § 4B1.1(a)(3).

Williams next argues that the district court committed

plain error by basing his sentence in part on a career offend

‐

er status. The district court calculated his Guidelines range

of 210 to 240 months’ imprisonment with the career offender

enhancement. This satisfies the first two elements of the

plain error standard; it was a clear error to do so. The parties

dispute whether the district court’s incorrect calculation af

‐

fected Williams’s substantial rights or seriously impugned

on the fairness, integrity, or public reputation of the judicial

proceeding. Williams argues that the third and fourth ele

‐

ments are satisfied because the error resulted in a higher ad

‐ visory Guidelines range than the applicable one.

“When a defendant is sentenced under an incorrect

Guidelines range—whether or not the defendant’s ultimate

sentence falls within the correct range—the error itself can,

and most often will, be sufficient to show a reasonable prob

‐ ability of a different outcome absent the error.” Molina

‐

Martinez

, 136 S. Ct. at 1345; see also United States v. Paz

‐ Giron

,

833 F.3d 836, 840 (7th Cir. 2016). Such errors also usually af

‐

fect the fairness, integrity, or public reputation of judicial

proceedings. Rosales

‐ Mireles

, 138 S. Ct. at 1908.

Where the district court clearly would have imposed the

same sentence regardless of the erroneous calculation under

the Guidelines, however, a reasonable probability of preju

‐

dice does not exist. As the Supreme Court has explained:

The record in a case may show, for example, that the

district court thought the sentence it chose was ap

‐22 No. 18

‐ 3318

propriate irrespective of the Guidelines range. Judges

may fi nd that some cases merit a detailed explanation

of the reasons the selected sentence is appropriate.

And that explanation could make it clear that the

judge based the sentence he or she selected on factors

independent of the Guidelines.

Molina

‐ Martinez

, 136 S. Ct. at 1346–47. In United States v.

Thomas

, 897 F.3d 807 (7th Cir. 2018), for example, we held

that the district court made clear that the imposed sentence

was based on § 3553(a) factors.

[The judge] considered Thomas’s personal character

‐

istics, noting that Thomas engaged in illegal activity

“all his life and admits that. He has no other employ

‐

ment history.” The judge noted in particular the terri

‐

ble nature of the crime, saying, “These young chil

‐

dren, I’m sure, were terri fi ed. They had to be

... taken

in the middle of the night by strangers, armed, threat

‐ ening, to a place where they didn’t have any idea

where they were going or whether they would remain

alive.” He also noted the importance of protecting the

public from Thomas’s future crimes, stating that if he

were released, “these young victims will still be alive.

And will they have to be constantly looking over their

shoulder if the defendant is released?”

Id. at 817–18; see also United States v. Tyson

, 863 F.3d 597, 600

(7th Cir. 2017) (noting that the district court stated the calcu

‐

lated range “was not serving as the basis for the sentence he

imposed”).

Here, the record is clear that the district court would

have imposed the same 180

‐ month sentence regardless ofNo. 18

‐ 3318 23

whether Williams qualified as a career offender. After calcu

‐ lating the Guidelines, the district court started her sentenc

‐ ing analysis by considering each of the § 3553(a) factors.

The district court first addressed the seriousness of the

offense. She determined that the crime was “as serious as it

gets.”

[I]t’s because this is everybody’s worst nightmare:

waking up, going about their everyday business, go

‐ ing into a store to get a phone, or maybe working

...

at the store, and then being terrorized by a group of

individuals and being held at gunpoint, fearing that

they would not go home to their loved ones that day.

Ever. Pushed to the ground, physically manhandled,

hogtied

... with zip ties

... and victimized, all for the

theft of phones. The quick and easy buck.

She specifically noted that “the impact that this left on every

single person who was in that store that day far exceeds any

‐ thing that [Williams] and [the] other participants had to

gain.”

The district court also focused on Williams’s role in the

offense. She noted that Williams was a full participant in this

premediated crime. Williams and at least four other individ

‐

uals planned this crime in advance, “[a]nd everybody had a

role, and [Williams’s] role was to drive the getaway car. But

[Williams] knew full well what the other participants would

be doing inside that store ....” While Williams was not as

culpable as the person who held the gun, he was more cul

‐ pable than the person who just loaned them the car. “[Wil

‐

liams is] somewhere in the middle.”24 No. 18

‐ 3318

Lastly, the district court addressed Williams’s personal

history and characteristics. She explained that “career of

‐

fender” is designed to “capture the most serious offenders

who have a track record of committing violent crimes.” She

then noted that the advisory Guidelines range may overstate

Williams’s recidivism risk because he has a shorter criminal

history than others who qualify as career offenders. At the

time of sentencing, he was only 29. The district court con

‐

cluded, however, that Williams still represents a strong re

‐

cidivism concern given his role in the offense and the nature

of his prior criminal history, which includes convictions for

retail theft, delivery of a controlled substance, domestic bat

‐

tery, and aggravated criminal sexual abuse. She further not

‐

ed the escalation in the seriousness of his criminal conduct

over time, and this crime is the “most serious.” The district

court also expressed concern for his recidivism risk because

Williams had violated every term of court

‐ imposed supervi

‐

sion, except the last one. “So not only were the sentences of

probation and jail and Department of Corrections not ade

‐

quate enough to deter [Williams] from committing this of

‐

fense, but also previous court orders were not enough to en

‐

sure [Williams’s] compliance because [he]

... committed new

law offenses.”

The district court acknowledged that she had the discre

‐

tion to sentence below the Guidelines range and “not just

blanket

‐ apply it in every case.” Nonetheless, Williams “rep

‐

resent[s] a very strong recidivism concern. So I think it’s

somewhere in the middle. If the career offender is not ap

‐ plied, [Williams] would be [in the] 121 to 151 [sentencing

range]. I think that’s way too low. It’s too low because it

doesn’t fully take into account the recidivism concern that

[Williams] pose[s].”No. 18

‐ 3318 25

After a thorough review of the § 3553(a) factors, the dis

‐

trict court explained:

The bo tt om line is: My duty is to protect the public

from [Williams], and I do think that a signi fi cant sen

‐

tence in this case is necessary to do that to, hopefully,

fi nally speci fi cally deter [Williams] when [he] get[s]

out from commi tt ing future crimes. [He will] age out,

essentially, hopefully; and hopefully

... tire out. It ʹ s

not worth the risk. There ʹ s too much at stake. And I

also think that the sentence that I ʹ m imposing is—

re fl ects the seriousness of the o ff ense and [his] role in

the o ff ense and avoids unwarranted

... sentencing

disparities.

The district court then concluded by expressly stating that

although “[c]areer offender applies in this case legally; but

even if it didn’t, this is still the sentence that I would impose,

based on all the 3553(a) factors.” She imposed a 180

‐ month

sentence, which is between the advisory career offender

Guidelines range of 210 to 240 months and the advisory non

‐

career offender Guidelines range of 121 to 151 months.

We find no plain error here. It is clear from her thorough

assessment that the district court would have imposed the

same sentence irrespective of the career offender provision.

See Thomas

, 897 F.3d at 817 (stating that there is no plain er

‐

ror where “the sentencing judge makes clear that the de

‐

fendant’s sentence simply does not depend on the resolution

of a guideline issue”). The district court’s detailed analysis of

the § 3553(a) factors supports this statement and rebuts any

suggestion that it was a conclusory comment. As a result, we

conclude that the district court’s error neither affected Wil

‐

liams’s substantial rights nor seriously impugned the fair

‐26 No. 18

‐ 3318

ness, integrity, or public reputation of the judicial proceed

‐ ing.

2. Firearm Enhancement

Lastly, Williams argues that the district court improperly

applied a six

‐ level firearm enhancement at sentencing for

two reasons. First, he argues that a BB gun, rather than a real

firearm, was used in the crime. Second, he contends that the

district court did not make its finding by a preponderance of

the evidence. The government disagrees with both argu

‐

ments: there was sufficient evidence for the district court to

find that a firearm was used during the robbery and to apply

a firearm enhancement.

The Sentencing Guidelines permit a six

‐ level sentencing

enhancement if a firearm was used during a robbery.

U.S.S.G. § 2B3.1(b)(2)(B). The commentary to the Sentencing

Guidelines defines a firearm as

(i) any weapon (including a starter gun) which will or

is designed to or may readily be converted to expel a

projectile by the action of an explosive; (ii) the frame

or receiver of any such weapon; (iii) any fi rearm

mu ffl er or silencer; or (iv) any destructive device. A

weapon, commonly known as a “BB” or pellet gun,

that uses air or carbon dioxide pressure to expel a

projectile is a dangerous weapon but not a fi rearm.

U.S.S.G. § 1B1.1, cmt. 1(H).

Although Williams himself did not use a firearm during

the crime, “in the case of a jointly undertaken criminal activi

‐

ty

... all acts and omissions of others that were—(i) within

the scope of the jointly undertaken criminal activity, (ii) in

furtherance of that criminal activity, and (iii) reasonablyNo. 18

‐ 3318 27

foreseeable in connection with that criminal activity” are of

‐

fense conduct that is attributable to the defendant. See

U.S.S.G. § 1B1.3(a)(1)(B); see also United States v. Ramirez

, 783

F.3d 687, 690 (7th Cir. 2015).

Here, the district court did not err in applying the firearm

enhancement to Williams. Under Federal Rule of Criminal

Procedure 32(i)(3)(A), a district court is entitled to “accept

any undisputed portion of the presentence report as a find

‐ ing of fact.” Williams did not raise any objections to the

presentence investigation report. The presentence investiga

‐

tion report and trial testimony support the district court’s

finding that another participant in the crime, Thomas James,

used a firearm during the crime. Three witnesses testified

that a black gun was used during the robbery. First, Ryan, a

Sprint store employee, “described the gun as a black colored

handgun that was not a revolver. When the gun was pointed

at Ryan, he could see there was a silver colored ring around

the tip of the barrel.” Ryan said that James waved the gun

and said “Good thing you told me [where the cell phones

were] or I would have had to start shooting.” Second, Nata

‐

sha, a store customer, testified that James was “holding a

black handgun.” Third, Kasey, another store customer, testi

‐

fied that a man was holding “a little black gun or some

‐ thing” pointed at his stomach.

The only evidence to the contrary is James’s testimony at

William’s trial. James testified that he later “learned that it

was a BB gun,” but “[i]t looked like a real gun.” But he also

stated that he thought it was a real gun when he committed

the crime. Nor did he independently determine that it was a

BB gun rather than a firearm; instead, the guy who gave him

the gun later “told [James] it was a BB gun.” In his interview28 No. 18

‐ 3318

with the probation officer, James contradicted his trial testi

‐

mony when he “claimed the gun he held in the robbery was

a real firearm, and believed it was a .40 or .45 caliber.” Wil

‐

liams did not dispute this fact in the presentence investiga

‐

tion report. And it was not plain error for the district court to

rely on undisputed facts in this report. See, e.g.

, United States

v. Guajardo

‐ Martinez

, 635 F.3d 1056, 1060 (7th Cir. 2011);

United States v. Aviles

‐ Solarzano

, 623 F.3d 470, 475 (7th Cir.

2010). It is defendant’s burden to prove that an error “ actual

‐ ly occurred, not merely that an error might have occurred.”

United States v. Williams

, 931 F.3d 570, 573 (7th Cir. 2019).

Williams has not met that burden.

James’s use of a firearm was also reasonably foreseeable.

The presentence investigation report states that law en

‐

forcement had information that a group of individuals were

robbing cellular telephone stores in the same manner. More

specifically, two men would enter the store with firearms,

escort all personnel in the back, make explicit threats, physi

‐ cally restrain the victims, steal merchandise, and make a get

‐

away in two vehicles. That group included Thomas James

and Randy Williams. At sentencing, the district court found

that Williams was a full participant in the crime and knew

what the other participants were doing inside the store. We

find no reason to second

‐ guess that determination.

A FFIRMED