# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 27, 2019

Decided March 29, 2019

Before

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 18

‐ 1439

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

DARRYL SARGENT,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 16 CR 10

‐ 2

Amy J. St. Eve,

J udge

.

O R D E R

Darryl Sargent pleaded guilty to two counts of bank robbery and one count of

attempted bank robbery, see 18 U.S.C. § 2113(a), and was sentenced to 70 months in

prison. Based on notes that Sargent and a coconspirator presented to tellers during the

robberies, the judge imposed a two

‐ level, threat

‐ of

‐ death enhancement for each of the

bank

‐ robbery convictions. See U.S.S.G. § 2B3.1(b)(2)(F). Sargent appealed, but his

appointed counsel, believing all potential appellate arguments to be frivolous, seeks to

withdraw and asks us to dismiss the appeal. See Anders v. California

, 386 U.S. 738 (1967).

Sargent has not responded to counsel’s motion. See 7 TH C IR

. R. 51(b). We limit our

review to the subjects that counsel has discussed, see United States v. Bey

, 748 F.3d 774, NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 18

‐ 1439 Page 2

776 (7th Cir. 2014), and agree that an appeal would be frivolous. We therefore grant the

motion to withdraw and dismiss the appeal.

Counsel assures us that Sargent instructed him that he does not wish to

challenge the voluntariness of his guilty plea or the adequacy of the plea colloquy, and

therefore appropriately does not discuss either of these issues. See F ED

. R. C RIM

. P. 11(b);

United States v. Konczak

, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox

, 287 F.3d

667, 670–71 (7th Cir. 2002).

Counsel considers whether Sargent could challenge the applications of

§ 2B3.1(b)(2)(F) and concludes that Sargent has waived any such challenge. True,

counsel neither presented the argument in his sentencing memorandum nor objected at

the sentencing hearing to the judge’s guidelines calculation, but at most the argument

would be forfeited rather than waived. See United States v. Pankow

, 884 F.3d 785, 790–91

(7th Cir. 2018). Assuming then that Sargent merely forfeited an objection and that

review would be for plain error, id. at 790, we nevertheless agree that a challenge to the

applications of § 2B3.1(b)(2)(F) would be frivolous. That guideline provision requires a

two

‐ level increase in offense level “if a threat of death was made” in furtherance of a

robbery. The judge adopted the probation officer’s recommendation that Sargent and

his coconspirator made death threats in each of the demand notes used in the two

robberies.

As Sargent admitted in his plea agreement, in the first robbery, he waited in a

getaway car while his coconspirator entered the bank and handed the teller a note

stating: “THIS IS A ROBBERY. GIVE ME ALL BIG BILLS FIRST. I HAVE A BOMB IN

THE BAG AND A GUN. HURRY AND NOBODY GETS HURT.” It would be frivolous

to argue that the judge plainly erred in concluding that this statement was a threat of

death in furtherance of a robbery. See U.S.S.G. § 2B3.1 cmt. n.6. Even if the coconspirator

made the threat and not Sargent, the judge could reasonably conclude based on

Sargent’s admissions in his plea agreement that a threat of death was foreseeable. See id.

§ 1B1.3(a)(B)(iii); United States v. Smith

, 697 F.3d 625, 636 (7th Cir. 2012).

Sargent also admitted in his plea agreement to the threatening circumstances of

the second bank robbery. This time the coconspirator waited in the car while Sargent

entered the bank and handed the teller a note stating: “I have a gun. This is a robbery.

Give me all the big bills.” As counsel properly observes, it would be frivolous to

challenge this enhancement based on plain error given the absence of any circumstances

that would strip the words “I have a gun” of their “ordinary and expected meaning.”

United States v. Carbaugh

, 141 F.3d 791, 794–95 (7th Cir. 1998). Indeed, the judgeNo. 18

‐ 1439 Page 3

observed that she was “troubled” by “the fear [Sargent] instilled in the bank teller.” See

U.S.S.G. § 2B3.1 cmt. n.6 (stating that the enhancement applies when the defendant’s

conduct “would instill in a reasonable person, who is a victim of the offense, a fear of

death”).

Next, counsel considers whether Sargent could argue that he should have

received an additional reduction in the offense level for acceptance of responsibility

(three rather than two) because he pleaded guilty before trial. See U.S.S.G. § 3E1.1(b).

Because “the plea [was] on the eve of trial,” the judge did not apply the additional

reduction. That reduction is appropriate only if sought by the government, and here it

was not. See United States v. Deberry

, 576 F.3d 708, 709 (7th Cir. 2009). Any such

challenge would therefore be frivolous.

Counsel also correctly concludes that challenging the substantive reasonableness

of Sargent’s sentence would be frivolous. His 70

‐ month sentence was at the bottom of

his guidelines range of 70 to 87 months (based on a total offense level of 25 and

criminal

‐ history category of III). A sentence within a properly calculated guidelines

range is presumptively reasonable, United States v. Cunningham

, 883 F.3d 690, 701

(7th Cir. 2018), and we see nothing to rebut that presumption. The court sufficiently

considered the relevant sentencing factors under 18 U.S.C. § 3553(a), noting repeatedly

that she was “troubled” by his “very serious” offense and by the “escalating” nature of

his conduct from being “just a lookout” to becoming a robber.

Last, to the extent counsel suggests that Sargent might challenge his effectiveness

in the district court, that claim is best pursued in a collateral proceeding in which the

record can be more fully developed. Massaro v. United States

, 538 U.S. 500, 504–05 (2003);

Crutchfield v. Dennison

, 910 F.3d 968, 975 (7th Cir. 2018).

We GRANT counsel’s motion to withdraw and DISMISS the appeal.