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# United States Court of Appeals For the Seventh Circuit

No. 14-2053

U NI T E D S TAT E SOF A M E RI C A , Plaintiff-Appellee ,

v.

D UR Y E A R O G E RS

, Defen dant-Appellant.
Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the So uthern Distri ct o f Indi ana , Indi ana pol i s Divisi on. No. 13 -CR-0 01 59 — Sara h Evan s Ba rker , Judg e.

A RGU E D J ANUAR

Y 8, 2015

— D E C I D E D F E B R UAR Y 4, 2015

Before B AU E R

, M AN I O N

, and R OVN E R

, Circ uit Judges.
M AN I O N , Cir cui t Judge. Dury ea Rog ers pleaded gui lty to conspi racy to commi t armed ba nk ro bbery , armed bank

ro bbery , and brandi shing a fi rear m duri ng a cri me of violence (in thi s case, a bank ro bbery). He challen ges the di stric t court’s i mposi tion of a tw o-lev el enhanc ement for carj acking under U.S.S .G. § 2B3.1(b )(5) . W e affi rm.2 No. 14-2053 I. Background
On the mornin g of June 26, 2013, Duryea Rog ers and Xavier Hardy (as well as three other co-cons pi rat or s) s et o ut to ro b a bank. To that end, they dr o v e to the Communi ty Bank in Fis hers, Indi ana, parked in a lot across the street, and wai ted. When the first bank employee arr i ved at just before 8 a.m., they drew their guns on her a nd fo r ce d her into the bank. Under the di rection of Rog ers, the employee di d ever ything that she would normally do: she turned on li ghts, deacti vat ed the alarm, placed her purse on the counter, and unlocked the front door

. But she did not give the all-c lear si gnal indi cating to o ther e mployees that it was s afe to ent er the bank. Rog ers escorted the employee to the vault and or dered her to open i t but she could not. (To deter ro bberi es, bank vaults often cannot be opened by a single employee—but advance deter rence relies on cri minals knowi ng thi s and thi s gr oup di d

no t.) The ro bbery was a fai lure: Rog ers and Hardy never obtained any cash fro m the bank.
But they did no t leave empty-handed. Whi le Rog ers and t he employee strugg led wi th the vault, Hardy rum ma g e d thro ugh the employee’s purse, and too k her car key s and i denti fi cati on. The pai r then di rect e d t he employee into the break ro om, or de r e d he r t o li e on the floor , and zi p-ti ed her hands and feet tog ether

. Rog ers and Hardy fled in the employee’s Chevy Equinox , wh ich was parke d next to the bank.The other co-cons pi rat or s fled in a mini van as well as the Chevy Tahoe that Rog ers and Hardy had driven to the bank that mor ning. What t he p ai r di d not realize was that FBI agents wereNo. 14-2053 3

outsi de the bank waiting for them; indeed, they had been watching the m the entire mornin g as another co-cons pi rat or, Deandre Armour , had been under surveill ance for months for

sus pi ci on of ro bbing other banks in Indi ana. Various car chas es ensued. Ul tim ately, Rog ers and Hardy deserted the Equinox in
a hotel parking lot and fled on foot

. Hardy was arr ested nearby in possess i on of a .45 cali ber pi stol. Rog ers was found by poli ce hi ding in the hotel in a closet and underneath a laundry chu te. Offi cers also located sever a l items di scarded by Rog ers, inclu ding a .40 calib er handgun, two-way radio, and i tems o f clothi ng worn by hi m during the bank ro bbery. F ina l l y , the other three co-cons pi rat or s, inclu ding Armour , were also

arr ested wi thout inc i dent.
On April 28, 2014, Rog ers pleaded g uilt y to conspi racy to commi t bank ro bber y (18 U.S.C. § 371), armed bank ro bbery (18 U.S

. C

. §§ 2113(a) and 2113(d)) , and knowi ngly using, carry ing, and br andi shing a fi rear m during and in r elation t o
a cri me of violence (18 U.S.C. § 924(c)(1)( A)(i i )). The court sentenced Rog ers to 60 months’ i mpri so nm e nt on each of Counts On e and Two (to be served concu rr ently), and 84 months on Count Three (to be served consec uti vely ), followed by 5 year s of su perv i sed release. Rog ers’s plea agr eement left open the is sue of whether he should receive the two-level enhanc ement for carjackin g. The probat i on offi cer recommended appli catio n o f the enhanc eme nt, whi le Rog ers arg ued that the behavi or was alr e a d y factored into hi s sentence wi th the a p p li cati on of a two-level enhanc eme nt for restr aining the vic tim

. Ov er Rog ers’s objection, the di stric t court conclu ded that the two-level e nh a ncement should app ly. Ro ger s appeals

.4 No. 14-2053

II. Analysis
We employ the usual dual standard, rev i ewing for clear

err or the di stric t cour t ’ s factual findings and de novo i ts appli cat io n of those facts to the Gui delines. United States v. Medina , 695 F.3d 702, 704 (7th Ci r. 2012). When interpr eting the Gui delines, we be g in wi th the tex t of the prov i si on and the plain meaning of the words in the tex t. United States v. Hill , 645 F.3d 900, 907 (7th Ci r. 2011). In addi tion to the actual language of the Gui delines, we mus t also consi der the Appli cati on Notes

as they are consi dered part of t he Gui delines and not mere commentary on them. United States v. Arn ao u t, 431 F.3d 994, 1001 (7th Ci r. 2005). Section 2B3.1(b) (5) of the Gui delines prov i des for a twolevel enhanc ement fo r ro bberi es involv ing carjacking, whi ch the Appli cati on Notes define as “the taking or a t t e mpted taking of a mo t o r v e hi cle from the person or presence of another by force and violence or by inti mi dation.” § 2B3.1, cmt. n. 1. Although Hardy, rat her t ha n Rog ers, too k the

e m p l o y e e ’ s k e y s , c o
- c o n s p i r a t o r l i a b i l i t y u n d e r § 1.B.1.3(a)( 1)(B) i s not at i ssu e here; Ro ger s has not contested i t and the facts indi cate that the theft was a reasonably foreseeable part o f the ov erall bank ro bbery.
At sentencing, Rog ers fo cu se d on the “person and presence” requirement to arg ue that the Gui deline di d not apply to “key jacking” inci dents where the key s, rat her than the car, are ta ken from the presence of the vic tim

. On appeal, Rog ers refin es hi s arg ument, contending that the facts do not supp or t

a finding of carjacking becau se the key s were obtained merely by rummagin g through the employee’s purse, and not thro ughNo. 14-2053 5
“force and violence or inti mi dation” as i s required under the Gui deline. Notably, he arg ues thi s even as he concedes that the bank ro bb e ry involv ed force or inti mi dation. The cruci al di stincti on, according to Rog ers, i s not whether the r o bb e ry inv olve d a measu re of violence or inti mi dation, but whether the key s were obtained thro ugh the “coerced relinqu i shm ent” (hi s term) by the v i cti m. Th e “ p e rs on and presence” arg ument ha s n ot b e e n a c c e p te d by any ci rcui t that has exami ned i t and i s easi ly di spatched. In holding that t he re i s no di stincti on—ot her factors notwi thstanding—between taking a vic tim ’s car outr i ght and taking a vic tim ’s key s as merely the fi rst acti on in the sei zure of her car,
we jo in our si ster ci rcui ts who have exami ned thi s questi on in the context of 18 U.S.C. § 2119. They are uni form in construing the ter m “presence ” br oadly to inclu de the abi li ty to ret ain contro l of the vehic le thro ugh possess i on of the key s. See, e.g., United States v. Savarese, 385 F

. 3 d 15, 20 (1st Cir. 2004); United States v. Soler

, 759 F.3d 2 2 6, 235 (2d Cir. 2014); United States v. Lake, 150 F.3d 269, 272–73 (3d Ci r. 1998); United States v. Davis , 233 F e d

. App’x. 292, 295 (4th Ci r. 2007) (per curi am unpubl ish e d); United States v. Edwards , 231 F.3d 933, 937 (5th C ir

. 2000); United States v. Casteel , 663 F.3d 1013, 1020–21 (8th Ci r. 2011); United States v. Burns , 7 0 1 F .2d 840, 843 (9th Ci r. 1983) (per curi am); United States v. Brown , 200 F.3d 700, 705 (10th Ci r. 1999). Only t he Sixth Ci rcui t has consi dered di rectly the app li cation of a sentencing enhanc ement under § 2B3.1(b) (5) to si mi lar facts. In United States v. Boucha , 236 F.3d 768 (6th Ci r. 2001), the defendant forced an employee to surrender to hi m the key s to6 No. 14-2053
her car duri ng a ro bbery, whi ch he used as hi s escape vehic le. The defendant was convic ted of bank ro bbery and the sentencing judge appli ed the two-le vel enhanc ement for carjacking. The Sixth Ci rcui t read the federal carjacking statute in li ght of

c om m on l a w robbery prin ci ples appli cable to the enhanc ement and found the b ro ader interpr etat i on of “person or p resence” from the statute to conform wi th the language and purpose of the Sente ncing Gui delines. Id. at 775–76. We agr ee a nd ho l d that, for the purpose of § 2B3.1(b) (5), a defendant who take s a vic tim ’s key s by force or threat of force, and who later take s the

car (wh i ch i s suffi ci ently prox i mate for the owner to acces s i t), may be sentenced as i f he too k the vic tim ’s car in the presence of the v i cti m by force or threat of force. Rog ers’s second arg ument—that the key s were not obtain ed by “force and v i olence or by i nti mi dation”—i s equally unavai ling. To accept thi s arg ument, we would have to i gnor e the basi c fact of thi s case, namely that the bank employee was,
a t a l l relev ant tim es, acting under the or ders of armed men. The inci dent began wi th Rog ers and Hard y a cc ostin g the employee at the back door and drawing their weapons on her. It ended wi th them leading her to the break ro om and or dering her to li e on the floor , where they zip-ti ed her. In the interim, she was in the presence of at least one of the ro bbers—and hi s weapon—at all relev ant tim es. These facts more than suffi ce to establi sh that the key s were obtained t hr ough “force and violence or by in tim i dation.”No. 14-2053 7

III. Conclus ion The di stric t court’s i mposi tion of a two-level enhanc ement to Rog e r s’s base offense level for bank ro bbery under the carjacking enhanc ement of § 2B3.1(b)( 5) i s AFFI RMED.