In the

United States Court of Appeals

for the Seventh Circuit

____________________ 

No. 21-2296 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

TYREE J. WHITE, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division. 

No. 1:17CR00182-001 — Jane Magnus-Stinson, Judge. 

____________________ 

ARGUED OCTOBER 25, 2022 — DECIDED SEPTEMBER 6, 2023 

____________________ 

Before SYKES, Chief Judge, and FLAUM and LEE, Circuit 

Judges. 

SYKES, Chief Judge. Tyree White and several accomplices

committed a string of armed robberies in Indianapolis in the 

late spring of 2017. White participated as an organizer and 

lookout, while his accomplices carried out the holdups. After 

successfully robbing a bank and two cellphone stores, the 

coconspirators were finally stopped when undercover 

detectives spotted them attempting to rob a Verizon store.
2 No. 21-2296 

White was charged with three counts of conspiracy to 

commit robbery and one count of conspiracy to commit 

armed bank robbery. He pleaded guilty to all four charges. 

The district court accepted the Sentencing Guidelines calculations in the presentence report, which produced an advisory sentencing range of 97 to 121 months. The judge

determined that a sentence in the middle of that range was 

appropriate and imposed four concurrent 108-month terms 

of imprisonment. 

White challenges the sentence on two grounds. First, he 

contends that the 108-month prison term for the bankrobbery conspiracy exceeds the applicable statutory maximum. Second, he disputes two applications of the Guidelines enhancement for physically restraining a victim “to 

facilitate commission” of a robbery. See U.S.S.G. 

§ 2B3.1(b)(4)(B). White concedes that all parties, including 

his own lawyer, overlooked both issues at sentencing. In 

other words, he acknowledges that he forfeited these challenges, so resentencing is warranted only if we find plain 

error. 

We vacate White’s sentence and remand for resentencing. The general federal conspiracy statute, 18 U.S.C. § 371, 

supplies the operative sentencing framework for the bankrobbery conspiracy charge, capping any term of imprisonment at 60 months. Needless to say, White’s 108-month 

sentence on this count far exceeds the applicable statutory 

maximum. While the government concedes this point, it 

nonetheless argues that the error is harmless. This argument 

rests on United States v. Gray, 332 F.3d 491 (7th Cir. 2003), a 

pre-Booker case that is out of sync with the advisory Guidelines regime. See United States v. Booker, 543 U.S. 220 (2005). 
No. 21-2296 3 

Because White’s 108-month sentence on the bank-robbery 

conspiracy conviction clearly exceeds the applicable statutory maximum, it is unlawful. The judge must impose a new 

sentence on that count. Though she has the discretion to 

restructure the entire sentence, she is not required to do so.

The physical-restraint enhancement was properly applied to one of the robbery-conspiracy counts. During the 

bank robbery, one of White’s accomplices wielded a handgun, grabbed a bank manager by his shirt, and led him to the 

lobby at gunpoint. This conduct counts as physical restraint

within the meaning of § 2B3.1(b)(4)(B). But the government 

admits that the conduct underlying the second application of 

the enhancement—during the robbery of one of the cellphone stores, an accomplice wielded a gun and ordered an 

employee to move to another area of the store—is not a form 

of physical restraint under our caselaw. See United States v. 

Herman, 930 F.3d 872, 875 (7th Cir. 2019) (ruling out the 

enhancement in the absence of physical contact or confinement). This error alone was harmless, however; it did not 

alter the applicable Guidelines range. So while the judge may

revisit and restructure the entirety of White’s sentence on 

remand, she must impose a new sentence only on the bankrobbery conspiracy count. 

I. Background

Over the course of several weeks in May and June 2017, 

Tyree White participated in several commercial armed 

robberies in Indianapolis. His primary role was that of a

lookout, but he also assisted with his coconspirators’ preparations by selecting and staking out the targeted premises 

and providing supplies, including (for at least one robbery)

the gun. His stint as a serial robbery conspirator came to an 
4 No. 21-2296 

end in mid-June when undercover officers observed White’s 

accomplices enter and suddenly flee a Verizon store. A chase 

ensued but the culprits escaped, tossing a gun from the 

getaway car as they fled. After three months of investigation, 

White was arrested. A grand jury issued a superseding 

indictment charging him with three counts of conspiracy to 

commit robbery, 18 U.S.C. § 1951(a), and one count of conspiracy to commit armed bank robbery, id. §§ 2113(a), (d), 

and 371. 

The specifics of two of these robberies are important to 

this appeal, so we describe them in some detail. White’s 

preparations for the first robbery began on May 8, 2017, 

when he entered a Fifth Third Bank in Indianapolis to

inquire about opening an account, a front for his surveillance 

of the bank. Two days later accomplices Charles Robinson 

and M.W., a juvenile, entered the bank while White was 

stationed outside in a vehicle as the lookout. M.W. was 

armed with a handgun that White had provided. After 

locating the bank manager in his office, M.W. brandished the 

firearm, ordered the manager to keep quiet, and pulled him 

by his shirt into the lobby—all while pointing the gun at 

him. At the same time, Robinson grabbed cash from the 

teller drawers and stuffed it into a bag. The robbers then 

escaped.

White acted as the lookout in a second Indianapolis robbery on May 26 (about two weeks later). This time the target 

was a T-Mobile store. Again, White stayed in his car and 

watched for signs of trouble while Robinson, Johnathan 

Washington, and Davon Herron entered the store. Herron 

wielded a handgun and demanded that an employee lead 

the three robbers to the back room where the cellphone
No. 21-2296 5 

inventory was kept. One or more T-Mobile employees 

remained in the back room as White’s accomplices stole cash 

from a safe and several cellphones. The robbers then fled the 

scene, escaping in White’s car and a second vehicle. 

The details of the remaining robbery and attempted robbery are mostly irrelevant for our purposes. Here are the 

basics: About two weeks after the T-Mobile robbery, White 

helped plan an armed robbery of an AT&T store in 

Indianapolis; he then acted as the lookout as his coconspirators entered the store on June 9 and escaped with 26 stolen 

cellphones. The following week White teamed up with an 

entirely new group of accomplices because the AT&T robbers had been arrested. This new group of coconspirators 

attempted to rob a Verizon store on June 16. White helped 

gather the tools—gloves, trash bags, and zip ties—and 

staked out the store. But the plan faltered in the middle of 

the robbery when the Verizon employees ran out the back of 

the store. The robbers abandoned the effort and left the store 

empty-handed, jumping into a waiting getaway car. Because 

of the recent robberies of local cellphone retailers, undercover officers were watching the Verizon store; they chased the 

robbers but did not catch them. They did, however, see them 

toss a gun from the car during the pursuit. 

The police continued to investigate over the summer and 

eventually arrested White in September. In November 2017 a 

grand jury returned a superseding indictment charging him

with four crimes: three counts of conspiracy to commit 

robbery in violation of § 1951(a) and one count of conspiracy 

to commit armed bank robbery in violation of §§ 2113(a), (d),

and 371. Two aspects of the statutory scheme underlying the 

bank-robbery conspiracy charge are important. First, the 
6 No. 21-2296 

Federal Bank Robbery Act, § 2113, does not provide for a 

conspiracy theory of liability; a defendant violates the Act

only if he “takes[] or attempts to take” the property of 

another. Proceeding on a conspiracy theory therefore requires charging a violation of § 371, the general federal 

conspiracy statute. Second, while a violation of the armedrobbery provision of the Bank Robbery Act, § 2113(d), carries

a possible sentence of 300 months, the general federal conspiracy statute, § 371, has a 60-month maximum. 

White soon filed a petition to enter guilty pleas on all 

four counts. But his plea petition listed 300 months in prison 

as the maximum sentence for the bank-robbery conspiracy 

count. In other words, White’s petition apparently—and 

erroneously—treated that count as a substantive armedrobbery offense under § 2113(d) rather than as a conspiracy 

offense under § 371. From that point on, all parties seemingly proceeded on a shared misunderstanding that the Bank 

Robbery Act (§ 2113(d)), not the general conspiracy statute 

(§ 371), supplied the statutory maximum sentence for the 

bank-robbery charge. For example, at White’s change-of-plea 

hearing, the prosecutor stated that the maximum punishment “would be 25 years [of] incarceration.” And White 

agreed later in the hearing that the applicable imprisonment 

range was 0 to 25 years. The probation office also assumed 

that § 2113(d) furnished the relevant statutory penalties: on 

the first page of the presentence report, and again later in the 

report, it described the bank-robbery conspiracy count as 

subject to “[n]ot more than 25 years [of] imprisonment.” 

The Guidelines calculations in the presentence report included two sentencing enhancements under § 2B3.1(b)(4)(B) 

for physically restraining a victim. The physical-restraint 
No. 21-2296 7 

enhancements, which reflected the conduct of White’s 

coconspirators during the Fifth Third Bank and T-Mobile 

robberies, added two levels to the base offense level for each

of those counts. These enhancements (and others not at issue

here) resulted in adjusted offense levels of 29 for the bank 

robbery and 27 for the T-Mobile robbery. Taking the higher 

level—as the Guidelines instruct—and adjusting for multiple 

counts yielded a single combined offense level of 31. After 

subtracting three levels for acceptance of responsibility, 

White’s final adjusted offense level was 28. Combining this 

level with his criminal history category of III, the probation 

office calculated an advisory Guidelines range of 97 to 

121 months in prison. 

At sentencing the judge adopted without objection the 

Guidelines calculations in the presentence report. After 

evaluating the gravity of White’s offenses and his troubled 

upbringing, she determined that a sentence in the middle of 

the advisory range was appropriate. She rejected the defense 

argument for a sentence at the low end of the range “because 

of the number of crimes and the use of the weapon[s] by 

[White’s] co-conspirators.” But she also determined that a 

sentence at the high end was unwarranted based on White’s 

background. In the end she imposed concurrent 108-month

sentences on each of the four counts. 

II. Discussion

White raises two claims of error, both relating to his sentence. He challenges his 108-month sentence on the bankrobbery conspiracy count, pointing out—for the first time on 

appeal—that the superseding indictment necessarily 

charged him with violating § 371, not § 2113(d), and the 

statutory maximum sentence for that crime is 60 months. He 
8 No. 21-2296 

also challenges the two physical-restraint enhancements, 

arguing that in neither the Fifth Third Bank robbery nor the 

T-Mobile robbery did his coconspirators’ conduct amount to

physical restraint under § 2B3.1(b)(4)(B). 

These arguments are new. As we’ve noted, White did not 

object to the presentence report, and everyone assumed 

throughout the proceedings below that the bank-robbery 

conspiracy carried a 300-month maximum. So our review is 

limited to correcting plain error, which requires White to

show that 

(1) there is an error that has not been intentionally relinquished or abandoned; (2) the error is 

clear or obvious; (3) the error affected [his] 

substantial rights, i.e., it affected the outcome 

of the [sentencing] proceedings ... ; and (4) the 

error seriously affects the fairness, integrity or 

public reputation of [the] judicial proceedings. 

United States v. Galvan, 44 F.4th 1008, 1011 (7th Cir. 2022) 

(cleaned up). 

A. Statutory Maximum

We first address White’s 108-month sentence for the conspiracy to rob the Fifth Third Bank. We need not dwell on 

the first three elements of plain-error review. The government agrees that the superseding indictment charged White 

under the general federal conspiracy statute, which carries a 

maximum sentence of 60 months in prison. White’s 108-

month term obviously exceeds that statutory maximum, so

an error occurred. The record also suggests—and the government does not dispute—that this error was simply overlooked by all parties, not intentionally relinquished or 
No. 21-2296 9 

abandoned. “And because this error is apparent from the 

language of 18 U.S.C. § 371,” it is both clear and obvious. 

United States v. Gibson, 356 F.3d 761, 766 (7th Cir. 2004). The 

error also affected White’s substantial rights; it increased his 

sentence for the bank-robbery conspiracy by at least 

48 months. See United States v. Dooley, 688 F.3d 318, 321 

(7th Cir. 2012) (“[A]n extra 48 months in prison is ‘substantial’ by any measure.”). 

Indeed, the government admits that the statutory sentencing error is “plain enough.” Yet it contends that we need 

not correct the error because it did not “seriously affect[] the 

fairness, integrity or public reputation of [the] judicial 

proceedings.” Galvan, 44 F.4th at 1011. The government’s 

argument rests on our reasoning in Gray, which became 

obsolete after the Supreme Court’s decision in Booker made 

the Guidelines advisory. Gray involved a defendant who 

pleaded guilty to three crimes, each stemming from a drug 

deal that culminated in a high-speed chase. 332 F.3d at 491–

92. At sentencing neither party “mentioned the relevant 

statutory maximums,” and like in this case, the judge selected a sentence in the middle of the applicable Guidelines 

range, imposing three concurrent 87-month prison terms. Id. 

at 492. But the 87-month sentences exceeded the statutory 

maximum sentence for all three crimes. Id. at 493. 

The defendant did not object in the district court, so our 

review in Gray was limited to correcting plain error. Though 

we acknowledged the obvious error, we agreed with the 

government that a remand for resentencing was unnecessary

because the sentences “d[id] not exceed the combined 

statutory maximum achievable by running the sentences 

consecutively.” Id. For the defendant’s three crimes, that 
10 No. 21-2296 

consecutive statutory maximum was 156 months. Id.1 Because he had been sentenced to 87-month terms, “well below 

the total, consecutive maximum,” id., we declined to remand 

for resentencing. The errors “did not affect the fairness, 

integrity, or public reputation of the proceedings.” Id. 

Crucially, our reasoning in Gray was keyed to § 5G1.2(d) 

of the Guidelines, which states in part: “If the sentence 

imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence 

imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment.” (Emphasis 

added.) Simplified, § 5G1.2(d) instructed judges to impose 

consecutive sentences in the circumstances presented in 

Gray, and because Gray predated Booker, 543 U.S. 220, the 

Guidelines were mandatory. The fact that § 5G1.2(d) would 

require the same outcome on remand was central to our 

decision: “[E]ven if we were to remand for resentencing, 

§ 5G1.2(d) would instruct the district court to impose the 

sentences consecutively to the extent necessary to achieve 

the total punishment; thus, Gray would receive the same 

sentence as before.” Gray, 332 F.3d at 493. 

The government treats Gray as dispositive here. Not so. 

Our decision in Gray necessarily rested on the Guidelines’ 

then-mandatory effect. After Booker, the Guidelines are no 

longer mandatory, and the premise of Gray is fundamentally 

at odds with the modern advisory Guidelines regime. Today 

1 Gray was convicted of two drug crimes, each carrying a 60-month 

maximum, and assault of an officer, which was subject to a 36-month 

maximum.
No. 21-2296 11 

when we remand for correction of an unlawful sentence in a 

multicount case, the judge may—but certainly is not required to—restructure the overall sentencing package to 

achieve the same total prison term. Gray’s holding on this 

point is no longer relevant to the kind of sentencing error

presented here—that is, when one of several concurrent 

prison terms exceeds the applicable statutory maximum.

Because its reasoning is outdated, Gray should no longer be 

cited for this point.2

With Gray out of the picture, we see no reason to depart

from an otherwise obvious rule that flows directly from the 

Constitution’s separation of powers: A term of imprisonment “must comply with the maximum (and minimum, if 

there is one) provided by the statute of conviction.” United 

States v. Cieslowski, 410 F.3d 353, 363 (7th Cir. 2005). Put 

differently, when a sentence exceeds a congressionally 

mandated limit, it is unlawful, and we “cannot give [it] 

effect.” Gibson, 356 F.3d at 766 (quotation marks omitted). 

Contrary to the government’s contention, we cannot leave

the error uncorrected simply because the judge has also

ordered White to serve concurrent, within-range sentences

that equal or exceed the unlawful sentence. Doing so “would 

impugn the fairness, integrity, and public reputation of the 

judicial proceedings that have taken place in th[e] case” and 

2 We acknowledge that even post-Booker we have sporadically cited Gray 

with approval. See, e.g., United States v. Radick, 261 F. App’x 891, 897 

(7th Cir. 2008); United States v. Ross, 510 F.3d 702, 713 n.3 (7th Cir. 2007); 

United States v. Shurn, 163 F. App’x 409, 412 (7th Cir. 2006); United States v. 

Angulo-Hernandez, 175 F. App’x 79, 82–83 (7th Cir. 2006); United States v. 

West, 207 F. App’x 719, 722–23 (7th Cir. 2006); cf. United States v. Ghuman, 

966 F.3d 567, 578 (7th Cir. 2020).
12 No. 21-2296 

would threaten respect for the judicial system as a whole. Id. 

at 767. 

We are particularly inclined to vacate White’s sentence 

because, as we’ve explained, the judge made her sentencing 

decision based in part on the mistaken assumption that the 

bank-robbery conspiracy count was subject to a statutory 

maximum of 25 years, while the other three counts were 

subject to a 20-year maximum. It’s possible—though the 

record is silent on the matter—that this assumption had an 

“anchoring effect on [her] determination of a reasonable 

sentence” on all four counts of conviction. United States v. 

Currie, 739 F.3d 960, 966 (7th Cir. 2014). Had she known that 

the maximum sentence for the bank-robbery conspiracy

count was in fact only five years, she might have chosen a 

lesser sentence overall. 

B. Physical-Restraint Enhancements

We turn next to the physical-restraint enhancements that

were applied to White’s convictions for the Fifth Third Bank

and T-Mobile robberies. Removing both enhancements 

would drop the advisory Guidelines range from 97 to 

121 months to 87 to 108 months, so White argues that he is 

entitled to a new sentence on all four counts of conviction, 

not just the bank-robbery conspiracy count. 

Section 2B3.1(b)(4)(B) of the Sentencing Guidelines provides for a two-level increase to the base offense level “if any 

person was physically restrained to facilitate commission of 

the offense or to facilitate escape.” For a definition of “physically restrained,” the Application Notes direct us to the 

Commentary for § 1B1.1, which defines “physically restrained” as “the forcible restraint of the victim such as by 
No. 21-2296 13 

being tied, bound, or locked up.” U.S.S.G. § 1B1.1 cmt. 

n.1(L). Although White himself did not physically restrain 

anyone, the Guidelines hold him accountable for the foreseeable conduct of his coconspirators. Id. § 1B1.3(a)(1)(B).

White does not raise a challenge sounding in foreseeability, 

so our focus here is on the meaning of “physically restrained” within the context of § 2B3.1(b)(4)(B).

We recently reconsidered the meaning of that phrase in

United States v. Herman, 930 F.3d 872 (7th Cir. 2019). Focusing 

on the guideline’s use of the word “physical,” we drew a 

line between true “physical restraint” and mere “psychological coercion.” Id. at 875. That is, the guideline “specifies 

physical restraints,” and “[t]hat limitation rules out psychological coercion, even though such coercion has the potential 

to cause someone to freeze in place.” Id. at 875–76. Extending 

our previous discussion in United States v. Taylor, 620 F.3d 

812 (7th Cir. 2010), we held that the conduct underlying the 

enhancement must “depriv[e] a person of his freedom of 

physical movement.” Herman, 930 F.3d at 875 (quoting 

Taylor, 620 F.3d at 814). This conduct often will be a “physical act that prevents movement.” Id. But at the very least, the 

victim must actually be restrained by something—even if 

only the four walls of a room and some sort of mechanism 

“used to bar the door.” Id. at 876. 

Applying Herman’s reasoning to the conduct of White’s 

coconspirators, we conclude that the judge correctly applied 

one physical-restraint enhancement. During the commission 

of the Fifth Third Bank robbery, M.W. physically restrained 

the bank manager. But no such physical restraint occurred 

during the T-Mobile robbery; in fact, the government concedes as much. 
14 No. 21-2296 

Starting with the application of the physical-restraint enhancement to the bank robbery, White does not dispute that 

M.W. grabbed the manager of the Fifth Third Bank by his 

shirt and led him into the lobby while pointing a gun at him. 

But he argues that M.W.’s conduct did not constitute physical restraint because the manager was still able to move to a 

different location within the bank. He also emphasizes that 

the physical contact was neither lengthy nor confining, 

relying on factors cited by the Third Circuit in United States 

v. Bell, 947 F.3d 49, 59–60 (3d Cir. 2020). 

Of course, the law of the Third Circuit is not binding on 

us. And White advances no reason why we should abandon 

our recent analysis in Herman in favor of the Third Circuit’s 

multi-factor approach. Under Herman there was no error—

and certainly no plain error—in the judge’s application of 

the physical-restraint enhancement to White’s conviction for 

the Fifth Third Bank robbery. By pulling the bank manager 

by his shirt into the lobby at gunpoint, M.W. engaged in a 

physical act that “depriv[ed the manager] of his freedom of 

physical movement.” Herman, 930 F.3d at 875. That’s enough 

to justify application of the physical-restraint enhancement.

We turn then to the T-Mobile robbery, during which 

Herron flashed a handgun and ordered a T-Mobile employee to lead the way to a back inventory room. The employee

did so, and then stayed with the robbers while they stole 

cellphones and cash. Nothing in the record, however, suggests that the robbers made physical contact with this (or 

any other) employee, nor did they confine anyone in the 

back room. At most, an uncertain number of employees 

remained in the back room while the ransacking occurred. 

But the physical-restraint enhancement is not so capacious 
No. 21-2296 15 

as to cover any instance where a bystander stands in the 

vicinity of an offense. Even if those employees felt too 

frightened to leave (and we don’t doubt that they did), 

under Herman this is the sort of purely psychological coercion that the text of § 2B3.1(b)(4)(B) rules out. We therefore 

conclude that the physical-restraint enhancement was 

improperly applied to the T-Mobile robbery count. 

Indeed, the government concedes this point, acknowledging that Herron’s conduct “consisted of ... psychological 

coercion.” Yet it argues that because the erroneous application of § 2B3.1(b)(4)(B) to the T-Mobile count did not ultimately influence the advisory Guidelines range, the error

had no effect on White’s substantial rights and does not 

warrant correction on plain-error review.

We agree. Even if we remove the physical-restraint enhancement from the T-Mobile count, the resulting Sentencing Guidelines range would not change. True, the adjusted 

offense level for that count would be 25 instead of 27. But the 

Guidelines multiple-count adjustment calculation operates 

on the count with the highest adjusted offense level. See 

U.S.S.G. § 3D1.4. In this case that’s the bank-robbery conspiracy count with an adjusted offense level of 29. As we’ve 

explained, it was not error to apply the physical-restraint 

enhancement to that count, and White raises no other argument why the adjusted offense level of 29 should otherwise 

be reduced. 

Without a change to that offense level, White’s Guidelines calculation remains the same, as does the resulting 

advisory sentencing range applicable to all four counts. 

Therefore, White cannot show that the single enhancement 

error prejudiced him, and there is no need to remand for 
16 No. 21-2296 

resentencing because of this error. See United States v. 

Thomas, 897 F.3d 807, 817 (7th Cir. 2018) (declining to remand for resentencing on plain-error review where “a twolevel error in the offense level would not have changed the 

final recommended guideline range”). 

Although the enhancement error does not entitle White to 

a new sentence on all four counts of conviction, the judge 

may, in her discretion, reevaluate and restructure White’s 

overall sentence when she corrects the sentencing error on 

the § 371 bank-robbery conspiracy count. Accordingly, we

VACATE White’s sentence and REMAND for resentencing.