# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued April 27, 2011

Decided July 7, 2011

Before

RICHARD D. CUDAHY, Circuit Judge

TERENCE T. EVANS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

Nos. 10

‐ 2143 & 10

‐ 2537

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

RICHARD MOLINARO and

THOMAS A. SENGE,

Defendants

‐ Appellants

. Appeals from the United States District

Court for the Western District of Wisconsin.

Nos. 10

‐ CR

‐ 20

‐ C

‐ 01 & 10

‐ CR

‐ 47

‐ BBC

‐ 01

Barbara B. Crabb,

Judge

.

O R D E R

Richard Molinaro and Thomas Senge entered a bank in Union Center, Wisconsin,

wearing masks and hooded sweatshirts. Senge pressed a gun to the head of one employee

and ordered her to fill a bag with cash while Molinaro guarded a second employee. Senge

then forced the workers into a bathroom and wedged the door closed with a chair. The pair

fled with $45,202, but were caught and prosecuted in federal court. Both men now appeal

from prison terms they received after pleading guilty to armed bank robbery, 18 U.S.C.

§ 2113(a), (d), and, in Senge’s case, to using a gun during the robbery, id. § 924(c)(1)(A)(ii).

Molinaro contends that the district court erred by (1) characterizing his Wisconsin

conviction for vehicular fleeing as a crime of violence in applying the career

‐ offender

guideline, and (2) overlooking his argument that his cooperation warranted a below

‐ NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1Page 2 Nos. 10

‐ 2143 & 10

‐ 2537

guidelines sentence. We reject both arguments and uphold Molinaro’s sentence. Senge’s

newly appointed appellate lawyer has moved to withdraw under Anders v. California

, 386

U.S. 738 (1967). We grant that motion and dismiss Senge’s appeal.

We start with Molinaro, who avoided prosecution under § 924(c) by agreeing to

cooperate with the government. As part of the written plea agreement, the government also

agreed to recommend a 3

‐ level reduction for acceptance of responsibility. See U.S.S.G.

§ 3E1.1. A probation officer concluded that Molinaro is a career offender, see id. § 4B1.1, in

light of his Wisconsin convictions for burglary of a dwelling, W IS

. S TAT

. § 943.10(1m)(a), and

vehicular fleeing, id. § 346.04(3). That designation, after the reduction for acceptance of

responsibility, yielded a total offense level of 31, a Category VI criminal history, and a

guidelines imprisonment range of 188 to 235 months. Molinaro objected to the probation

officer’s conclusion that his conviction for vehicular fleeing is a crime of violence, and also

asserted that he should receive a downward adjustment for what he described as his

“minor” role in the offense, see U.S.S.G. § 3B1.2. At sentencing the district court overruled

both objections and adopted the probation officer’s calculations.

The government asked for a sentence at the high end of the guidelines range.

Although acknowledging that Molinaro’s cooperation influenced Senge to plead guilty, the

prosecutor asserted that Molinaro had cooperated as “part of an arms

‐ length negotiation”

and only because the government promised not to charge him under § 924(c). The

prosecutor insisted that Molinaro should not be sentenced below the guidelines range

because he already had received the “benefit for his cooperation in this matter.”

Molinaro in turn asked for a sentence of 10 years to run concurrently with an

undischarged state sentence. Counsel asserted that Molinaro was less culpable than Senge,

and argued that, although the district court had declined to find that Molinaro was a minor

participant, the court still should take into account that Senge had done “violent things” to

the bank employees while Molinaro “simply stood there and took orders.” Counsel also

argued that Molinaro had only two convictions for crimes of violence, both over a decade

old, and that he was a “changed man.” Counsel further asserted that Molinaro’s

cooperation with the government supported a below

‐ guidelines sentence. The government

had not filed a motion under U.S.S.G. § 5K1.1, but defense counsel insisted that Molinaro’s

cooperation warranted a reduction under that guideline because he had given a “complete

and truthful statement” to investigators and testified before a grand jury about Senge’s

involvement in the robbery.

After discussing the bank robbery as well as Molinaro’s personal history and prior

convictions, the district court imposed a term of 204 months to run consecutively to the

undischarged state imprisonment. This sentence, the court explained, was “no greater thanPage 3 Nos. 10

‐ 2143 & 10

‐ 2537

necessary” to hold Molinaro accountable, rehabilitate him, protect the community, and

achieve parity with the sentences of similarly situated offenders. The court did not mention

Molinaro’s cooperation.

On appeal Molinaro first argues that the district court erred in concluding that his

Wisconsin conviction for vehicular fleeing, see W IS

. S TAT

. § 346.04(3), is a crime of violence

for purposes of the career

‐ offender guideline. We have held that a conviction under

§ 346.04(3) does qualify, United States v. Dismuke

, 593 F.3d 582, 596 (7th Cir. 2010), petition for

cert. filed, 79 U.S.L.W. 3062 (U.S. July 19, 2010) (No. 10

‐ 109), but Molinaro contends that

Dismuke was wrongly decided. He raises the issue only to preserve it for review in the

Supreme Court, which recently upheld our conclusion that a conviction under a similar

Indiana statute punishing the use of a vehicle to flee from the police, see I ND

. C ODE

§ 35–44–3–3(b)(1)(A) (2004), is a crime of violence

. See United States v. Sykes

, 598 F.3d 334

(7th Cir. 2010)

, aff’d

, Sykes v. United States

, No. 09–11311, 2011 WL 2224437 (U.S. June 9,

2011).

Molinaro’s main contention, however, is that the district court erred by not

commenting on his argument that a sentence below the guidelines range was warranted by

his cooperation. A sentencing judge “must adequately explain the chosen sentence to allow

for meaningful appellate review,” Gall v. United States

, 552 U.S. 38, 50 (2007), and a judge

“who fails to mention a ground of recognized legal merit (provided it has a factual basis) is

likely to have committed an error or oversight,” United States v. Cunningham

, 429 F.3d 673,

679 (7th Cir. 2005). Yet in this instance the district judge was not required to discuss

Molinaro’s cooperation.

In reaching this conclusion, we reject the government’s contention that Molinaro’s

cooperation was not a “principal” argument in mitigation. A sentencing judge is not

obligated to address “every pithy argument that a defendant raises, just the ‘principal’

ones,” United States v. Villegas

‐ Miranda

, 579 F.3d 798, 801 (7th Cir. 2009), and, according to

the government, Molinaro’s cooperation was not principal because he made several

arguments in mitigation yet “failed to distinguish the cooperation argument as being of

primary importance.” As the government concedes, however, defense counsel spoke at

length about Molinaro’s cooperation relative to the § 5K1.1 factors and explained that,

under United States v. Knox

, 573 F.3d 441, 453 (7th Cir. 2009), a sentencing court may

consider a defendant’s cooperation as a basis for a reduced sentence without a government

motion. This degree of discussion made his cooperation a principal argument in mitigation.

Compare United States v. Arberry

, 612 F.3d 898, 900 (7th Cir. 2010) (explaining that argument

was “principal” since it was raised at sentencing and rested on solid legal support), with

United States v. Olmeda

‐ Garcia

, 613 F.3d 721, 723 (7th Cir. 2010) (noting that argument was

not “principal” because it was not adequately developed).Page 4 Nos. 10

‐ 2143 & 10

‐ 2537

That said, we still conclude that the district court was free to reject Molinaro’s

argument without comment. Stock arguments—even principal arguments—may be rejected

with little or no explanation, see United States v. Gary

, 613 F.3d 706, 709

‐ 11 (7th Cir. 2010);

United States v. Poetz

, 582 F.3d 835, 838

‐ 39 (7th Cir. 2009), and we have characterized as

“routine” claims that substantial assistance to the government warrants leniency, see United

States v. Gonzalez

, 462 F.3d 754, 755

‐ 56 (7th Cir. 2010). In this instance, moreover, the totality

of the record convinces us that the district court necessarily evaluated Molinaro’s

cooperation. See Poetz

, 582 F.3d at 839; United States v. Carrillo

‐ Esparza

, 590 F.3d 538, 540 (7th

Cir. 2010). The plea agreement makes explicit that in exchange for Molinaro’s cooperation

the government did not pursue a mandatory, consecutive term of imprisonment under

§ 924(c), and the district court expressly accepted that agreement at the sentencing hearing.

To require the district court to repeat what already had been vetted fully would serve no

purpose.

We now turn to Senge, who has not responded to counsel’s Anders submission. C IR

.

R. 51(b). The probation officer concluded that Senge, like Molinaro, is a career offender

because of a 1985 Pennsylvania conviction for robbery, P A

. C ONS

. S TAT

. § 3701, and a 1991

Wisconsin conviction for attempted armed robbery, W IS

. S TAT

. §§ 943.32(1)(b), (2), 939.32.

Accounting for acceptance of responsibility and the 25

‐ year statutory maximum prison

term, see 18 U.S.C. § 2113(d), the probation officer concluded that for the bank robbery

Senge’s total offense of 31 and Category VI criminal history yielded a guidelines

imprisonment range of 188 to 235 months. Because Senge’s conviction on the § 924(c) count

carried a mandatory consecutive term of at least 7 years, see id. § 924(c)(1)(A)(ii), the

probation officer added that penalty to the range for the bank robbery and determined that,

under § 4B1.1(c)(3), Senge’s overall range was 262 to 327 months, U.S.S.G. §§ 2K2.4(c),

4B1.1(c)(2). Senge objected to counting his 1985 Pennsylvania conviction, claiming that his

sentence for that conviction had been fully discharged more than 15 years before the crimes

at issue here. The district court overruled this objection and adopted the probation officer’s

calculations. After discussing the § 3553(a) factors, the court imposed a term of 264 months

to run consecutively to an undischarged state sentence.

Senge wants his guilty pleas set aside, so appellate counsel begins by discussing

potential arguments about the adequacy of the plea colloquy and the voluntariness of the

pleas. See F ED

. R. C RIM

. P. 11; United States v. Knox

, 287 F.3d 667, 671

‐ 72 (7th Cir. 2008). We

would review these arguments for plain error because Senge did not move to withdraw his

guilty pleas in the district court. See F ED

. R. C RIM

. P. 52(b); Puckett v. United States

, 129 S. Ct.

1423, 1429 (2009); United States v. Anderson

, 604 F.3d 997, 1001 (7th Cir. 2010). Counsel

considers arguing that the district court violated Rule 11 by not telling Senge that he could

be prosecuted for perjury if he lied under oath during the plea colloquy, or that he had a

right to maintain his pleas of not guilty. F ED

. R. C RIM

. P. 11(b)(1)(A), (B). But we agree withPage 5 Nos. 10

‐ 2143 & 10

‐ 2537

counsel that it would be frivolous to rest an appellate claim on either omission, since there is

no current or prospective prosecution against Senge for perjury, see United States v. Blalock

,

321 F.3d 686, 689 (7th Cir. 2003); United States v. Graves

, 98 F.3d 258, 259 (7th Cir. 1996), and

he knew from his written plea agreement that he did not have to change his pleas to guilty,

see United States v. Driver

, 242 F.3d 767, 771 (7th Cir. 2001). In addition, counsel notes that

the district court did not tell Senge that the prison sentence for the gun count was required

to run consecutively to his sentence for the bank robbery, see 18 U.S.C. § 924(c)(1)(D)(ii), but

Rule 11 “does not require a district court to inform the defendant of mandatory consecutive

sentencing,” United States v. General

, 278 F.3d 389, 395 (4th Cir. 2002); see United States v.

Burney

, 75 F.3d 442, 445 (8th Cir. 1996); United States v. Ospina

, 18 F.3d 1332, 1334 (6th Cir.

1994); Paradiso v. United States

, 482 F.2d 409, 415 (3d Cir. 1973).

Counsel advises that Senge would like to contend on appeal that his guilty pleas

were induced by a lack of the insulin he needs for his diabetes, and that his lawyer in the

district court failed to appreciate his medical condition and pressured him to plead guilty.

These attacks on his guilty pleas would be premature because the evidence necessary to

sustain them is not in the record. Indeed, as the record now stands, Senge’s premise is

contradicted by his statements during the plea colloquy. The use of medication (or its absence

when needed) can affect a defendant’s mental state to the point of vitiating a guilty plea, see

Burt v. Uchtman

, 422 F.3d 557, 564, 566 (7th Cir. 2005); United States v. Savinon

‐ Acosta

, 232

F.3d 265, 268 (1st Cir. 2000); United States v. Damon

, 191 F.3d 561, 564

‐ 66 (4th Cir. 1999);

Miles v. Stainer

, 108 F.3d 1109, 1112

‐ 13 (9th Cir. 1997), but here the district court asked Senge

whether “being on medication” might interfere with his ability to understand the

proceedings, and he answered no. The court properly relied on Senge’s own assurance of

mental clarity, Savinon

‐ Acosta

, 232 F.3d at 269; Miranda

‐ Gonzalez v. United States

, 181 F.3d

164, 166 (1st Cir. 1999); United States v. Vaughan, 13 F.3d 1186, 1187 (8th Cir. 1994), and

Senge’s performance during the colloquy confirmed his lucidity, see United States v. Walker

,

447 F.3d 999, 1004

‐ 05 (7th Cir. 2006); Chichakly v. United States

, 926 F.2d 624, 634

‐ 35 (7th Cir.

1991); Savinon

‐ Acosta

, 232 F.3d at 269; United States v. Lessner

, 498 F.3d 185, 196 (3d Cir.

2007). Moreover, the representations Senge made to the district court under oath are

presumed truthful, United States v. Chavers

, 515 F.3d 722, 724 (7th Cir. 2008); United States v.

Weathington

, 507 F.3d 1068, 1072 (7th Cir. 2007), and if he later asserts that he lied during the

colloquy, the district court will be free to reject out of hand the claim of perjury, see United

States v. Standiford

, 148 F.3d 864, 868

‐ 69 (7th Cir. 1998); United States v. Messino

, 55 F.3d 1241,

1248 (7th Cir. 1995).

Counsel has also evaluated whether Senge could argue that the district court erred in

counting his 1985 robbery conviction (for which he received an indeterminate sentence of 5

to 10 years) as a predicate offense for purposes of § 4B1.1. We agree that this argument

would be frivolous. Despite Senge’s objection that he finished serving that sentence more

than 15 years before committing the crimes at issue here, the probation officer confirmedPage 6 Nos. 10

‐ 2143 & 10

‐ 2537

that Senge had been returned to prison in 2006 and did not fully discharge his robbery

sentence until 2008, within the countable 15

‐ year period. See U.S.S.G. § 4A1.2(e)(1), (k)(2);

United States v. Moreno

‐ Padilla

, 602 F.3d 802, 807

‐ 08 (7th Cir. 2010). Senge introduced no

evidence at sentencing to support his contention that the Pennsylvania records relied upon

by the probation officer are inaccurate. Counsel tells us that Senge now asserts that his

reimprisonment in 2006 was prompted by a probation violation arising from a 1974

conviction for burglary, not due to the 1985 conviction, but nothing in the record supports

that contention.

Counsel further alerts us that the district court miscalculated Senge’s imprisonment

range. The court noted that under § 4B1.1(c) Senge’s range was the “greater” of (1) the

career

‐ offender range of 188 to 235 months for the bank robbery plus 7 years (272 to 319

months) or (2) the range determined under § 4B1.1(c)(3) (262 to 327 months). The court

concluded that the latter was the “greater” range because it carried the highest advisory

prison term, but in fact the court should have selected the range with the highest minimum

prison term—272 to 319 months. See U.S.S.G. § 4B1.1 cmt. n.3(B). The sentencing court thus

committed error, but counsel correctly reasons that an appellate argument would be

frivolous because the error favored Senge. We also agree with counsel’s assessment that

Senge would have no argument about the reasonableness of his prison sentence. The term of

264 months is below the correctly calculated range of 272 to 319 months, and, like a sentence

within the guidelines range, a term below the range is presumed reasonable. Poetz

, 582 F.3d

at 837. We are given no reason to disregard that presumption.

That leaves one final matter. As counsel recognizes, the district court erroneously

sentenced Senge to a single 264

‐ month prison term instead of specifying that he was

sentenced to 180 months for the bank robbery plus a consecutive term of 84 months (the

statutory minimum) for the § 924(c) count. See U.S.S.G. § 5G1.2(e) & cmt. n3(B); United States

v. Ward

, 626 F.3d 179, 184 (3d Cir. 2010); United States v. Thompson

, 454 F.3d 459, 468 (5th Cir.

2006); United States v. Moriarty

, 429 F.3d 1012, 1025 (11th Cir. 2005); United States v.

Cummings

, 395 F.3d 392, 400 (7th Cir. 2005); United States v. Woodard

, 938 F.2d 1255, 1257

(11th Cir. 1991). Counsel has assessed whether to seek correction of this error on appeal but

reasons that an appellate claim would be frivolous because the aggregate sentence of 264

months does not exceed the statutory maximum for either count of conviction, and counsel

cannot discern any way that Senge has been prejudiced.

Nor do we. Our review would be for harmless error because Senge did not have an

opportunity to object to the error at sentencing. See F ED

. R. C RIM

. P. 51(b); United States v.

Snyder, 635 F.3d 956, 962 (7th Cir. 2011); United States v. Martinez

‐ Barragan

, 545 F.3d 894, 899

(10th Cir. 2008). An error is harmless only if the government can prove that it did not affect

the defendant’s substantial rights. United States v. Zahursky

, 580 F.3d 515, 527 (7th Cir. 2009).Page 7 Nos. 10

‐ 2143 & 10

‐ 2537

Having reviewed an array of Program Statements governing a wide range of postconviction

procedures and conditions administered by the Bureau of Prisons, we have seen no

indication that the district court’s erroneous assignment of an aggregate sentence will have

any practical consequence that would affect Senge’s substantial rights while incarcerated.

See generally U.S. Dept. of Justice, Federal Bureau of Prisons, Program Statements Series

1000— General Administration and Management ; Series 4000— Support Services and Logistics ;

Series 5000— Inmate and Custody Management ; Series 6000— Medical, Dental, and Health

, available at http://www.bop.gov/DataSource/execute/dsPolicyLoc (last visited June 8, 2011).

We thus agree with counsel that an appellate claim would be frivolous.

The judgment in Molinaro’s appeal is AFFIRMED

. The motion to withdraw filed by

counsel for Senge is GRANTED

, and his appeal is DISMISSED

.