The Honorable Philip P. Simon, United States District Court 

Judge for the Northern District of Indiana, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1029

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHARLES O. EUBANKS, also known as

CHUCKIE, also known as TROUBLE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 3:07-cr-50058-1—Philip G. Reinhard, Judge.

ARGUED OCTOBER 26, 2009—DECIDED JANUARY 28, 2010

Before BAUER and SYKES, Circuit Judges, and SIMON,

District Judge.

SIMON, District Judge. Charles Eubanks pled guilty to

two counts of robbery, 18 U.S.C. § 1951(a), and one
2 No. 09-1029

count of using a firearm in furtherance of one of the

robberies, 18 U.S.C. § 924(c). The district court sentenced

Eubanks to 192 months for the two robberies and a consecutive 84 months’ sentence for the firearm charge.

Eubanks appeals his sentence on the robbery counts

claiming that the district court incorrectly calculated

his offense levels and criminal history in determining

his guideline sentence. We agree, in part, and vacate

Eubanks’ sentence and remand the case to the district

court for resentencing.

I. Background

Eubanks and four others committed a string of armed

robberies which led to a fifteen-count indictment in

which Eubanks was charged in nine of the counts. Pursuant to a plea agreement, Eubanks pled guilty to two

robberies (Counts 12 and 14), and using and carrying

a firearm during the commission of one of those

robberies (Count 13). As part of his plea agreement,

Eubanks also stipulated to committing the robberies

alleged in Counts 8 and 10 of the indictment.

Count 12 involved the armed robbery of a beauty

supply store, and Count 13 was the gun charge

associated with that robbery. Here’s what happened:

Eubanks, armed with a plastic B.B. gun, entered the store

with two co-defendants, both packing semi-automatic

handguns. The three men pulled out their guns, pointed

them at store employees, and demanded money from the

cash register. Eubanks and a co-defendant then began

beating the store owner with Eubanks clobbering him in
No. 09-1029 3

the head with the B.B. gun causing bruising and lacerations. The injuries required medical attention, including

four staples to the store owner’s head. One of the codefendants then forced a store employee at gunpoint to

a back room to retrieve the store’s surveillance video.

Eubanks knew the co-defendants used and carried real

firearms during commission of the robbery.

In Count 14, Eubanks and two co-defendants were

charged with robbing a small jewelry store. Upon entering

the store, Eubanks hopped over the front counter and

forced a store employee to the ground at gunpoint.

Eubanks then dragged a second store employee about

six feet, from the back room of the store to the front

room, causing minor injuries consisting of scratches and

bruising.

At the sentencing hearing, the court sentenced Eubanks

to 84 months for Count 13, as the parties agreed in the plea

deal, because both co-defendants used and carried a

firearm during commission of the robbery, and Eubanks

was held responsible for their actions. Regarding the

robberies alleged in Counts 12 and 14, however, the

district court disagreed at times with the agreement the

parties had reached and with the recommendations in

the Presentence Report (PSR).

The robbery of the beauty supply shop in Count 12

started with a base offense level of 20. The court then

added four levels for otherwise using a dangerous

weapon under U.S.S.G. § 2B3.1(b)(2)(D). The court also

added three levels because a victim sustained injuries

that were somewhere between a “bodily injury” and a
4 No. 09-1029

“serious bodily injury” and four levels for abducting the

victim. See U.S.S.G. § 2B3.1(b)(3) and (4). That left a

total offense level of 31 for Count 12, according to the

district court.

The jewelry store robbery in Count 14 also started

with a base offense level of 20. The district court then

added six levels for otherwise using a firearm (recall that

there was no § 924(c) charge associated with Count 14),

two levels for causing bodily injury, and, again, four

levels for abducting the victim. See U.S.S.G. § 2B3.1(b)(2)-

(4). The total offense level for Count 14 was 32. The

court also found that stipulated Count 8 carried an

offense level of 26 and stipulated Count 10 carried an

offense level of 25.

Based on these findings, the district court conducted a

unit analysis under U.S.S.G. § 3D1.4 and then subtracted

three levels because Eubanks accepted responsibility,

thus finding that Eubanks’ total offense level was 32.

The district court also determined that Eubanks had

eleven criminal history points, putting him in criminal

history category V. This yielded a recommended range

under the guidelines of 188-235 months. The court sentenced Eubanks to 192 months for Counts 12 and 14, to

be consecutive to the 84-month sentence in Count 13.

II. Discussion

On appeal, Eubanks raises a host of arguments concerning how the district court calculated the offense

levels for the two robbery counts. He contends the district
No. 09-1029 5

court incorrectly applied the weapons, injury, and abduction enhancements for both robberies, and also that the

district court incorrectly calculated his criminal history

points. We review the district court’s factual findings

for clear error and its interpretation and application of

the Sentencing Guidelines de novo. United States v.

Severson, 569 F.3d 683, 689 (7th Cir. 2009). First we will

address each of Eubanks’ arguments, and then we will

determine if any of the errors were harmless.

A. Weapons Enhancements

The district court tagged Eubanks with a weapons

enhancements for both Counts 12 and 14, and he claims

this was an error. For Count 12, Eubanks argues that the

district court improperly added four levels to his base

offense level under U.S.S.G. § 2B3.1(b)(2)(D) for a dangerous weapon “otherwise used” because he hit the store

owner in the head with a plastic B.B. gun during commission of the robbery. This was impermissible double

counting according to Eubanks because he received an

84-month sentence for using and carrying a firearm in

Count 13 pursuant to 18 U.S.C. § 924(c)—the same

conduct at issue in the enhancement. Thus, given that

he was already punished for using a firearm, the

district court could not enhance his sentence for use of

the B.B. gun in the same underlying offense. The government agrees with Eubanks. Because Eubanks challenges

the legal interpretation of the Sentencing Guidelines

and relevant statutes, we review de novo. United States v.

White, 222 F.3d 363, 372 (7th Cir. 2000).
6 No. 09-1029

If a defendant is sentenced for using a firearm in furtherance of a violent crime under § 924(c), the sentencing

court may not enhance the defendant’s sentence under

the guidelines for the same weapon and conduct that

underlie the § 924(c) conviction. White, 222 F.3d at 373;

U.S.S.G. § 2K2.4, comment (n.4). And the sentence

under § 924(c) accounts for all guns used in relation to

the underlying offense. See White, 222 F.3d at 374 (“[B]ecause a § 924(c) penalty accounts for all of the guns possessed, carried, or used by the defendant in relation to

an underlying offense, a guidelines enhancement cannot

also be imposed for use of more than one gun in the

same underlying offense.”); U.S.S.G. § 2K2.4, comment

(n.4) (instructing sentencing courts not to “apply any

weapon enhancement in the guideline for the underlying offense” if “a co-defendant, as part of the jointly

undertaken criminal activity, possessed a firearm

different from the one for which the defendant was

convicted under” § 924(c)). But “a defendant may

receive both the § 924(c) statutory sentence and a guidelines enhancement if the enhancement and the statutory

sentence are imposed for different underlying conduct.”

White, 222 F.3d 373.

Here, the district court held that the firearms that

gave rise to the § 924(c) conviction were different than

the weapon responsible for the enhancement. The district

court reasoned that Eubanks’ sentence under § 924(c) was

for the semi-automatic handguns possessed by the codefendants, while the enhancement under U.S.S.G.

§ 2B3.1(b)(2)(D) was for Eubanks’ use of the plastic

B.B. gun. The district court believed this to be permissible
No. 09-1029 7

because § 924(c) requires use of a firearm, and, according

to 18 U.S.C. § 921, a B.B. gun is not a firearm. The

district court concluded that because Eubanks could not

have been sentenced under § 924(c) for using the B.B.

gun, his use of the weapon was not subsumed by the

§ 924(c) sentence, and the four-level enhancement was

proper.

The problem with this analysis is that for enhancement purposes, real guns are treated as indistinguishable

from fake guns. White, 222 F.3d at 375 n.7. To hold otherwise

would lead to the perverse result that a defendant

who uses a real gun and a fake gun in the commission

of the same offense is eligible to receive a higher

sentence than a defendant who used two real guns to

commit the same crime. This is because the former

defendant could receive both a statutory sentence

under § 924(c) for the real gun and a Guidelines

enhancement for the fake gun, while the latter defendant, whose conduct presents a greater risk of harm,

could only receive either the statutory sentence or

the Guidelines enhancement, but not both. We do not

interpret the Guidelines to produce this result which

is clearly contrary to their policy and purpose.

Id. If we were to adopt the district court’s reasoning,

Eubanks would be subject to an enhancement under

U.S.S.G. § 2B3.1(b)(2)(D) for otherwise using a plastic B.B.

gun, but would have been precluded from such an enhancement if he had beat the store owner with a real

firearm. Such a ruling would not only be contrary to

the policy and purpose of the guidelines, but would lead
8 No. 09-1029

to the odd result we cautioned against in White. See also

United States v. Katalinic, 510 F.3d 744, 747-48 (7th Cir.

2007). Thus, the sentence under § 924(c) “account[ed] for

all of the guns possessed, carried, or used” by Eubanks

and the co-defendants in relation to the robbery, including the plastic B.B. gun. White, 222 F.3d at 374. So

the district court’s four-level enhancement under U.S.S.G.

§ 2B3.1(b)(2)(D) was impermissible double counting.

Regarding Count 14, Eubanks argues that the district

court’s six-level weapons enhancement for “otherwise

using” a firearm under U.S.S.G. § 2B3.1(b)(2)(B) was

also improper. Recall that in the jewelry store robbery,

Eubanks hopped over the front counter and pointed his

weapon at a store employee, forcing the employee to the

ground. Eubanks contends that this conduct only warranted a five-level enhancement for brandishing a

firearm, and indeed this is what the parties stipulated to

in the plea agreement. The district court disagreed

holding that because Eubanks pointed the weapon at a

specific victim and put that victim to the ground, he

personalized the threat. The district court felt that this

conduct was “otherwise using” the firearm (a six-level

enhancement), rather than brandishing the firearm (a fivelevel enhancement). See U.S.S.G. § 2B3.1(b)(2)(B) and (C).

The definitions of “brandishing” and “otherwise use” in

the guidelines are largely unhelpful. United States v.

Hernandez, 106 F.3d 737, 741 (7th Cir. 1997). The term

“brandished” means that “all or part of the weapon

was displayed, or the presence of the weapon was otherwise made known to another person, in order to intimidate
No. 09-1029 9

that person.” U.S.S.G. § 1B1.1, comment (n.1(C)). By

contrast, the guidelines define “otherwise use” as

“conduct [that] did not amount to the discharge of a

firearm but was more than brandishing, displaying, or

possessing a firearm or other dangerous weapon.” U.S.S.G.

§ 1B1.1, comment (n.1(I)). We have previously held

that “pointing a weapon at a specific victim created a

personalized threat of harm,” warranting an “otherwise

use” adjustment. United States v. Warren, 279 F.3d 561,

563 (7th Cir. 2002); United States v. Taylor, 135 F.3d 478, 483

(7th Cir. 1998). Conversely, brandishing typically occurs

where a defendant generally displays a weapon or

points the weapon at a group of people rather than a

specific individual. See Hernandez, 106 F.3d at 741 (noting

the difference between “pointing or waving about a

firearm and leveling the weapon at the head of a victim”). Because we have no reason to doubt that Eubanks

pointed his weapon at a specific employee and forced

the employee to the ground, the district court’s factual

finding was not clearly erroneous, and the six-level enhancement for “otherwise using” the firearm in Count 14

was appropriate. See U.S.S.G. § 2B3.1(b)(2)(B).

B. Injury Enhancements

Eubanks contests the district court’s application of

injury enhancements for both Counts 12 and 14. He

argues the district court erred by assessing a three-level

enhancement in Count 12 (the beauty supply store robbery) based on a finding that the victim sustained an

injury between bodily injury and serious bodily injury. See
10 No. 09-1029

U.S.S.G. § 2B3.1(b)(3). Eubanks contends that the victim’s

injuries in Count 12, which included bruises and lacerations to the victim’s head, were more akin to bodily

injury, warranting a two-level enhancement. Id. He also

argues that the district court erred by increasing two

levels for bodily injury in Count 14 (the jewelry

store robbery). In that robbery, Eubanks dragged a store

employee by her hair causing head pain, scraped and

bloodied knees, bruises on her arms, and damaged fingernails and hands. The injuries did not require medical

attention. According to Eubanks, the record shows these

injuries were minor, rather than significant, and thus a

two-level increase was excessive.

The guidelines define “bodily injury” as “any significant

injury; e.g., an injury that is painful and obvious, or is of a

type for which medical attention ordinarily would be

sought.” U.S.S.G. § 1B1.1, comment (n.1(B)). “Serious

bodily injury” is defined as an injury involving “extreme

physical pain” or “requiring medical intervention such

as surgery, hospitalization, or physical rehabilitation.”

U.S.S.G. § 1B1.1, comment (n.1(L)). As noted, a bodily

injury enhancement requires a two-level increase, while

a serious bodily injury enhancement carries a four-level

increase. U.S.S.G. § 2B3.1(b)(3).

In Count 12, the district court considered the victim’s

affidavit and a photograph of the victim’s injuries in

determining the extent of the injuries. The court held

that because the bruises and lacerations required

medical attention, including four staples to close the

head wound, and because the victim almost lost con-
No. 09-1029 11

sciousness, the injury fell somewhere in the continuum

between “bodily injury” and “serious bodily injury,” and

so the court assessed a three-level increase. The district

court was well within its discretion in finding that the

injuries were greater than a “significant” but not quite

“serious.” See e.g., United States v. Ledford, 218 F.3d 684, 691

(7th Cir. 2000) (bodily injury where victim suffered

“bruising on her side and arm”); United States v. Bogan,

267 F.3d 614, 624 (7th Cir. 2001) (serious bodily injury

where victim suffered lacerations requiring sutures, a

fractured eye-socket, emotional distress, migraine headaches, and the potential loss of teeth). The district court

is in the best position to make this factual determination

after viewing the relevant evidence. See United States v.

Hamm, 13 F.3d 1126, 1128 (7th Cir. 1994) (“Because the

district court hears this evidence, it is by far best-suited

to assess these myriad factors and determine whether a

‘significant injury’ has occurred.”) (quoting United States

v. Lancaster, 6 F.3d 208, 210 (4th Cir. 1993)). The district

court’s three-level enhancement in Count 12 was

entirely appropriate.

Similarly, in Count 14, the district court examined an

affidavit and photographs of the victim’s injuries in

determining that a bodily injury enhancement was warranted. The court found that the victim’s scrapes and

bruises amounted to significant injuries that were “painful

and obvious.” Our case law supports this finding. See

Ledford, 218 F.3d at 691; Hamm, 13 F.3d at 1127-28 (finding

bodily injury where victim “suffered bumps and bruises

and had the wind knocked out of him as a result of being

hit and knocked down” and “sustained a back injury
12 No. 09-1029

requiring chiropractic treatment”). And, once again,

because we largely defer to the district court on this factspecific inquiry, absent clear evidence to the contrary,

the finding should not be disturbed on appeal. See Hamm,

13 F.3d at 1128. The two-level bodily injury enhancement in Count 14 was thus proper.

C. Abduction Enhancements

In a robbery case, the guidelines sensibly punish an

abduction of a victim (a four-point enhancement) more

harshly than a restraint of a victim (a two-point enhancement). See U.S.S.G. § 2B3.1(b)(4). But the line between a

restraint and an abduction is a bit hazy. Eubanks says

that the conduct in Count 12, in which one of the codefendants forced an employee to the back of the beauty

supply store to retrieve a surveillance video, was a “restraint” not an “abduction.” He also contends that in

the jewelry store robbery in Count 14, where the

victim was dragged less than six feet, the conduct should

likewise have been deemed a restraint instead of

an abduction.

Under the guidelines, an abduction occurs when “a

victim was forced to accompany an offender to a

different location.” U.S.S.G. § 1B1.1, comment (n.1(A)).

Restraint is “the forcible restraint of the victim such as

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

comment (n.1(K)). Here, the issue turns on whether the

store employees were forced to accompany the defendants

to “a different location.” If the answer to that question

is yes, then an abduction occurred. Because this depends
No. 09-1029 13

on an interpretation of the Sentencing Guidelines, our

review is de novo. White, 222 F.3d at 372.

Eubanks argues that forcing an employee to another

room in the same small building warrants only a twolevel enhancement for restraint. Both the PSR and the

government (at least in its briefing in the district court)

agreed that the conduct in both robberies was better

characterized as a restraint rather than an abduction.

Nonetheless, the district court sua sponte held that transporting the victims from one room to another in the

same building—even if they are small retail stores—

satisfied the movement “to a different location” requirement, thus warranting a four-level abduction enhancement for both robberies. Recall that in Count 12 (the

beauty supply store robbery) the victim was taken to

the back room to retrieve the surveillance tape while in

Count 14 (the jewelry store robbery) the victim was

dragged about six feet, again from the back room to the

front of the store. The court found that moving an employee to another room was more serious than keeping

all of the employees in the same room because it

isolated the employee, increasing the likelihood that the

employee would resist and thus increasing the chance

of injury.

An abduction enhancement is not supported by this

Circuit’s case law. In United States v. Carter, 410 F.3d 942,

954 (7th Cir. 2005), we held that forcing a bank teller at

gunpoint from the back vault to her drawer against her

will constitutes a restraint. And in a similar case, we

held that a restraint enhancement was appropriate
14 No. 09-1029

where the defendant directed three bank tellers to a small

room in the back of the bank at gunpoint. United States v.

Doubet, 969 F.2d 341, 346 (7th Cir. 1992); see also United

States v. Nelson, 137 F.3d 1094, 1112 (9th Cir. 1998)

(“[O]rder[ing] a jewelry store employee and customer to

the back room at gunpoint . . . constitutes physical restraint.”). By contrast, forcing a bank employee at gunpoint from a parking lot into the bank warranted a fourlevel enhancement for abduction. United States v. Taylor,

128 F.3d 1105, 1110-11 (7th Cir. 1997); see also United

States v. Gall, 116 F.3d 228, 230 (7th Cir. 1997) (abduction

enhancement proper where victims were forced at gunpoint into trucks and drove around “a significant distance”); United States v. Davis, 48 F.3d 277, 279 (7th Cir.

1995) (forcing victim at gunpoint from parking lot to

inside the credit union satisfied abduction requirement).

The district court relied on a recently decided Fourth

Circuit case, United States v. Osborne, 514 F.3d 377 (4th Cir.

2008), in finding the abduction enhancements applicable. In Osborne, the Fourth Circuit began by finding the

“absence of movement across a building threshold or

property line does not bar the conclusion that movement

‘to a different location’ occurred.” Id. at 389. Instead, it

adopted a more flexible, case by case approach that did not

mechanically rely “on the presence or absence of doorways, lot lines, thresholds, and the like.” Id. at 389-90

(internal quotations omitted). From there, the Osborne

court held that the defendant’s forced movement of

Walgreens employees from the pharmacy section through

the store area to the front door of the Walgreens building

amounted to abduction under the guidelines. Id. at 391. In
No. 09-1029 15

so finding, the court relied heavily on the fact that the

defendant forced the victims to accompany him so he

could “keep[ ] [the] victims close by as readily

accessible hostages.” Id. at 390.

The facts here are significantly different from Osborne. In

Osborne, the defendant forced store employees from an

independent section of the store, which was separated

by a secured door and only accessible by authorized

persons via keypad, through the entire building and out

to the front door. More importantly, the victims in

Osborne were essentially taken hostage to facilitate the

defendant’s escape—which is the type of conduct

“plainly targeted by the abduction enhancement.” Osborne,

514 F.3d at 390. But in Count 12, a co-defendant forced

a store employee to the back room of a retail beauty

supply store to retrieve a surveillance video. And in

Count 14, the victim was moved no more than six feet.

Thus, the distance and nature of the confinements in

this case were materially different than in Osborne.

We think that this case is indistinguishable from cases

such as Carter and Doubet. Under these facts, and

taking into account the physical dimensions of the structures at issue, transporting the victims from one room to

another is simply not enough for abduction. To find

otherwise would virtually ensure that any movement

of a victim from one room to another within the same

building, without any other aggravating circumstances,

would result in an abduction enhancement. While there

may well be situations in which an abduction enhancement is proper even though the victim remained within
16 No. 09-1029

a single building, those facts are not present here. Thus,

the district court erred by enhancing Eubanks’ offense

levels four points for Counts 12 and 14. Instead, these

counts should be enhanced two levels each for restraint.

D. Criminal History

Finally, Eubanks challenges the district court’s determination that his criminal history points totaled eleven,

putting him in criminal history category V. At issue is

whether the district court correctly assessed four points

for two juvenile offenses. The first offense occurred in

July 2001, when Eubanks was charged with theft of a

firearm and placed on probation. Then in May 2002, he

was charged with two counts of armed robbery and one

count of aggravated robbery. For these offenses, his

probation for the theft of a firearm offense was revoked,

and Eubanks was sentenced to the Illinois Department of

Corrections on October 24, 2003. He was paroled on

June 29, 2004. All offenses were adjudicated under the

same case number. The district court assessed two points

for the theft of the firearm and two points for the armed

robbery offenses because the incidents were separate

offenses under the guidelines.

Eubanks argues that the district court double counted

by giving him four points—two for the theft of firearms

offense and two more for the armed robbery. He

believes that he should have only been given a total of

two points because the armed robbery is what led to his

probation being revoked for the theft of firearms offense.

Not so. The underlying conviction is the theft of the
No. 09-1029 17

In fact, Eubanks’ docket sheet states that the sentence for 1

the armed robbery offenses was to run “concurrent” meaning

that the sentence for the armed robbery offenses was a different offense from the revocation of probation/theft of the

firearm sentence.

firearm in 2001. This is the offense that landed Eubanks

on probation. The theft of the firearm and the revocation

of probation are thus a single conviction—indeed, they

are listed as such on Eubanks’ juvenile docket sheet.

See U.S.S.G. § 4A1.2(k), comment (n.11); United States v.

Palmer, 946 F.2d 97, 99 (9th Cir. 1991) (holding the “sentence on the underlying conviction and on the

revocation of probation is considered a ‘single conviction’ ”). Because Eubanks received a sentence of more

than sixty days on the revocation, he was properly

assessed a two-level enhancement in his criminal history

score.

The armed robbery—the offense that led to the revocation of his probation—was a separate, unrelated offense.

The district court correctly computed this offense

separate from the revocation offense for the purpose of

criminal history points, despite the fact the offenses

were all adjudicated under the same juvenile case number.1

Indeed, “[p]rior sentences always are counted separately

if the sentences were imposed for offenses that were

separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2).

Merely because Eubanks was sentenced for these

offenses on the same day does make them one charge for

criminal history purposes. See e.g., United States v. Statham,

581 F.3d 548, 554-55 (7th Cir. 2009) (district court properly
18 No. 09-1029

assigned separate criminal history points for multiple

offenses sentenced on the same day, with two of the

sentences running concurrent, “because each offense was

separated by an intervening arrest and the events and

victims involved in the three cases were completely

different.”). So Eubanks was correctly given an additional

two-point increase in his criminal history score for the

armed robbery.

Eubanks contends, however, that the five-year statute

of limitations under U.S.S.G. § 4A1.2(d)(2)(B) precludes

an enhancement for the theft of a firearm charge. But

U.S.S.G. § 4A1.2(d)(2)(A) is the applicable section here

because Eubanks’ juvenile sentence exceeded sixty

days, and under that provision the clock starts when a

defendant is released from confinement. See U.S.S.G.

§ 4A1.2(d)(2)(A). Because Eubanks was released from

confinement in June 2004 for the theft of firearm and

armed robbery charges, and the instant offenses occurred

in July 2007, the offenses fall within the five-year statute

of limitations. Consequently, the district court correctly

calculated Eubanks’ criminal history.

E. The Errors Were Not Harmless

As detailed above, the district court improperly

applied the guidelines in calculating Eubanks’ sentence.

But the government contends that any errors were harmless. “To prove harmless error, the government must be

able to show that the guidelines error did not affect the

district court’s selection of the sentence imposed.” United
No. 09-1029 19

States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009) (internal

quotations omitted).

In determining whether the above errors were

harmless, we must first establish whether the district

court’s guideline sentence fell within the properly calculated guideline range. Counts 12 and 14 both start with

a base offense level of 20. Count 12 should be enhanced

three levels for the victim’s injuries and two levels for

restraint, for a total offense level of 25. Count 14 should

be increased six levels for otherwise using a firearm,

two levels for bodily injury, and two levels for restraint.

This leaves a total offense level of 30 for Count 14.

Because there are multiple counts we must determine

the combined offense level under U.S.S.G. § 3D1.4. The

combined offense levels for each group are 30 (Count 14),

25 (Count 12), 26 (Count 8), and 25 (Count 10). See U.S.S.G.

§ 1B1.2(c), comment (n.3) (counting stipulated offenses

in plea agreements in computing the combined offense

level). Pursuant to the unit analysis in U.S.S.G. § 3D1.4,

Count 14 is assigned one unit as the group with the

highest offense; Count 8 is given one unit because it is

within four levels of the group with the highest offense

level (i.e., Count 14); one-half units are given for both

Counts 12 and 10 because they are more than four levels

below the highest offense level. See U.S.S.G. § 3D1.4(a) and

(b). Since there is a total of three units, three offense

levels are added to the group with the highest score

(again, Count 14). So after conducting the appropriate

unit analysis, the offense level for all conduct is 33.

After subtracting three levels for acceptance of responsibil-
20 No. 09-1029

ity, see U.S.S.G. § 3E1.1, Eubanks’ combined offense level

is 30.

Offense level 30 and criminal history category V yields

a guideline range of 151-188 months. The district court’s

192-month guideline sentence is thus outside the applicable range—albeit only by four months. And while the

district court specifically stated that it would have given

the same sentence even if it found restraint rather than

abduction in Counts 12 and 14, this did not account for

the erroneous four-level enhancement for otherwise

using a dangerous weapon under U.S.S.G. § 2B3.1(b)(2)(D)

in Count 12. Moreover, the district court did not

provide any reason for giving a non-guideline sentence.

See United States v. Carter, 538 F.3d 784, 789 (7th Cir.

2008) (“If the sentence imposed is outside the guidelines range, the district court must provide a justification

that explains and supports the magnitude of the variance.”) Therefore, because the district court’s errors in

calculating the guideline range may have affected the

sentence imposed, the above errors are not harmless.

III. CONCLUSION

For the reasons discussed above, we VACATE the sentence and REMAND for resentencing consistent with this

opinion.

1-28-10