### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 15

‐ 2407, 15

‐ 2408

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

I FEANYICHUKWU I KEGWUONU

and C HUKWUEMEKA I KEGWUONU

, Defendants

‐ Appellants

.

____________________

Appeals from the United States District Court for the

Western District of Wisconsin.

No. 3:15

‐ CR

‐ 00021

— William M. Conley

, Chief Judge

.

____________________

A RGUED A PRIL 27, 2016

— D ECIDED J UNE 13, 2016

____________________

Before F LAUM

, M ANION

, and W ILLIAMS

, Circuit Judges

.

F LAUM

, Circuit Judge

. Twin brothers Ifeanyichukwu “Jack”

and Chukwuemeka “William” Ikegwuonu appeal their sen

‐

tences for Hobbs Act robbery, 18 U.S.C. § 1951(a), and bran

‐ dishing a firearm during a crime of violence, § 924(c)(1). For

the robberies, Jack and William received below

‐ guidelines2 Nos. 15

‐ 2407, 15

‐ 2408

sentences of thirty months and twenty

‐ four months, respec

‐ tively. For brandishing a firearm, both men received a consec

‐

utive, statutory minimum sentence of seven years’ imprison

‐

ment. Defendants now argue for the first time on appeal that

the district court, in determining appropriate sentences for

the robberies, should have been free to take into account fully

the mandatory, consecutive nature of the § 924(c)(1) sentence,

a position we rejected in United States v. Roberson

, 474 F.3d 432

(7th Cir. 2007). Roberson holds that a district judge must deter

‐

mine the appropriate sentence for the underlying crime “en

‐ tirely independently of the section 924(c)(1) add

‐ on ....” Id.

at 437. Because defendants have not presented compelling

reasons to overturn Roberson

, we affirm their sentences.

I. Background

Defendants robbed five businesses at gunpoint in Madi

‐

son, Wisconsin. On four of the five occasions, Jack entered

alone to carry out the robbery while William waited in the

getaway car; only once were the roles reversed. During each

robbery, Jack or William demanded money while displaying

a nonfunctional, unloaded handgun. They took a total of

$1,643. After each robbery—except the last one, when police

caught them—the men immediately used the money to pur

‐

chase heroin.

Both Jack and William pled guilty to five counts of Hobbs

Act robbery and one count of brandishing a firearm during a

crime of violence. A probation officer calculated the same im

‐ prisonment range for each defendant: 63 to 78 months for the

robberies, plus a consecutive, statutory minimum term of

seven years for the firearm count. Both brothers argued for

sentences substantially below the guidelines range for the

robbery convictions. Jack requested no prison time, whileNos. 15

‐ 2407, 15

‐ 2408 3

William asked for six months with credit for time served,

which amounted to no additional prison time. These pro

‐ posed sentences, the brothers insisted, were sufficient to serve

the purposes of sentencing in light of the mandatory seven

‐

year sentences they faced under § 924(c)(1). Furthermore, the

brothers contended that Roberson simply prohibits a sentenc

‐ ing court from giving too much, rather than any, weight to the

§ 924(c)(1) sentence.

The district court rejected the brothers’ requested sen

‐

tences but did impose terms that are less than half of the rec

‐

ommended minimum under the sentencing guidelines for the

robberies. The court justified the sentences by noting that, alt

‐ hough the brothers had robbed five businesses at gunpoint

and “caused numerous victims to fear for their lives,” the

crimes were driven by addiction, were “out of character,” and

defendants had quickly accepted responsibility and ex

‐ pressed remorse.

Although the district court acknowledged that, under our

precedent, it had to determine independently an appropriate

sentence for the robbery counts, several statements by the

court show that it in fact considered the additional § 924(c)(1)

sentence in deciding on a prison term for the robberies. For

example, at the sentencing hearing the court said that it would

consider the robbery counts “in the context of the overall

case” and noted that “it would be impossible as a human be

‐ ing not to be thinking about the overall impact of the sen

‐

tence.” The court also stated that the sentence for the

§ 924(c)(1) violation “weighs somewhere

... in the overall con

‐

sideration.” And the court appeared to agree with defense

counsel’s argument that Roberson allowed the court to give the

sentence for the gun count some weight. In its written reasons4 Nos. 15

‐ 2407, 15

‐ 2408

entered after sentencing, the court added that it “would be

remiss not to mention the impact of § 924 on the overall sen

‐

tence” and concluded that “[a]ll of these factors” justify the

below

‐ guidelines sentences for the robberies.

II. Discussion

On appeal, defendants contend that their prison terms for

the robberies are too severe, and that the district court should

have—but did not—take into account the § 924(c)(1) sentence

when deciding on an appropriate term for the robberies.

Framed this way, defendants’ argument strains credulity be

‐

cause the district court all but pronounced (as the court’s be

‐

low

‐ range robbery sentences would seem to corroborate) that

it took into account the § 924(c)(1) sentence notwithstanding

Roberson

. 1 Thus, defendants’ essential claim must be that the

district court should not have been subject to any limitation

whatsoever in taking into account the mandatory consecutive

§ 924(c)(1) sentence.

Defendants acknowledge that Roberson precludes their

claim. In Roberson

, we held that sentencing judges may not re

‐

duce a prison term for an underlying crime to offset the con

‐

secutive term that is statutorily mandated for violating

§ 924(c)(1). 474 F.3d at 436–37. We explained that using a

§ 924(c)(1) sentence to offset the prison term for the underly

‐ ing crime, even by as little as one month, “would be incon

‐

sistent with Congress’s determination to fix a minimum sen

‐

tence for using a firearm in a crime of violence.” Id. at 436.

Defendants therefore ask us to overturn Roberson

.

1 Because the government did not file a cross

‐ appeal, the question of

whether defendants received an unauthorized benefit is one that we need

not address. See Greenlaw v. United States

, 554 U.S. 237, 244–45 (2008).Nos. 15

‐ 2407, 15

‐ 2408 5

As an initial matter, defendants never argued before the

district court that Roberson was wrongly decided. Instead,

they asserted that Roberson allows a district court to give some

weight to the statutory minimum sentence under § 924(c)(1).

Now they rightly concede that Roberson wholly prevents a dis

‐

trict court from considering the § 924(c)(1) sentence, and thus

argue that Roberson should be overruled. Because defendants

raise this argument for the first time on appeal, we review for

plain error. See United States v. Kirklin

, 727 F.3d 711, 717 n.2

(7th Cir. 2013) (“[A] claim must be advanced, if it is to be pre

‐

served, even when all precedent is contrary, otherwise we can

only review for plain error.” (citation and internal quotation

marks omitted)).

Regardless of whether or not defendants’ argument about

Roberson was fairly presented to the district court, we will not

overturn Circuit precedent absent compelling reasons. We

give “considerable weight to prior decisions of this court un

‐

less and until they have been overruled or undermined by the

decisions of a higher court, or other supervening develop

‐

ments, such as a statutory overruling.” Santos v. United States

,

461 F.3d 886, 891 (7th Cir. 2006) (citation and internal quota

‐

tion marks omitted), aff’d

, 553 U.S. 507 (2008); see also

United States v. Zuniga

‐ Galeana

, 799 F.3d 801, 806 (7th Cir.

2015). None of defendants’ reasons for overturning Roberson

are compelling.

Rather, their arguments were addressed in Roberson itself.

Defendants emphasize that § 924(c) says nothing about the

underlying crime, other than that the sentences must run con

‐ secutively. They also argue that treating § 924(c) as providing

a sentencing procedure conflicts not only with 18 U.S.C.

§ 3551, which directs sentencing courts to apply § 3553(a)6 Nos. 15

‐ 2407, 15

‐ 2408

“[e]xcept as otherwise specifically provided,” but also with

§ 3553(a), which, defendants insist, mandates an overarching

parsimony principle. But in Roberson we acknowledged the

“tension with section 3553(a),” yet concluded that this “very

general statute” could not be “understood to authorize courts

to sentence below minimums specifically prescribed by Con

‐ gress.” 474 F.3d at 436. Defendants also contend that Rob

‐

erson ’s interpretation of § 924(c) ignores United States v. Booker

,

543 U.S. 220 (2005), by limiting a district court’s sentencing

discretion. But we rejected this very argument in Roberson

, ex

‐ plaining that Booker does not authorize sentencing courts to

disregard statutory minimums. 474 F.3d at 436–37.

Defendants’ remaining arguments similarly invoke the

traditional discretion of sentencing courts. Specifically, de

‐

fendants contend that Roberson is at odds with a sentencing

court’s customary practice of fashioning an overall sentence,

or “sentencing package.” Additionally, they argue that Rob

‐

erson conflicts with 18 U.S.C. § 3661, which provides that

“[n]o limitation shall be placed on the information concerning

the background, character, and conduct of a person convicted

of an offense ....” But these arguments fail to point to any su

‐ pervening developments—from either a higher court or Con

‐ gress—that undermine Roberson

. We have already explicitly

rebuffed a request to overturn that decision, see United States

v. Calabrese

, 572 F.3d 362, 369–70 (7th Cir. 2009), and have con

‐

tinued to endorse Roberson ’s analysis, see United States v.

Dooley

, 688 F.3d 318, 320 (7th Cir. 2012) (relying on Roberson

for proposition that “any mandatory term comes on top of a

sentence computed independently for the other offenses”).

Five of six circuits to address the issue after Roberson have

agreed with this Court’s reasoning. See United States v. Ed

‐Nos. 15

‐ 2407, 15

‐ 2408 7

mond

, 815 F.3d 1032, 1048 (6th Cir. 2016); United States v. Pow

‐

ell

, 444 F. App’x 517, 522 (3d Cir. 2011) (nonprecedential deci

‐

sion); United States v. McCullers

, 395 F. App’x 975, 978 (4th Cir.

2010) (nonprecedential decision); United States v. Williams

,

599 F.3d 831, 834 (8th Cir. 2010); United States v. Chavez

,

549 F.3d 119, 134–35 (2d Cir. 2008). But see United States v.

Smith

, 756 F.3d 1179 (10th Cir. 2014) (disagreeing with Rob

‐

erson in a split decision).

At oral argument, defendants asserted for the first time

that the Supreme Court’s decision in Pepper v. United States

,

562 U.S. 476 (2011), compels us to overturn Roberson

. This ar

‐

gument is not properly before us, which is reason enough to

reject it. See United States v. Conley

, 291 F.3d 464, 468 n.3

(7th Cir. 2002) (declining to consider an argument raised for

the first time at oral argument). But waiver aside, the conten

‐

tion lacks merit. In Pepper

, the Supreme Court pointed to the

“wide discretion” of sentencing judges to consider under

§ 3661 “the fullest information possible concerning the de

‐

fendant’s life and characteristics,” 562 U.S. at 488 (quoting

Williams v. New York

, 337 U.S. 241, 247 (1949)), and held that

evidence of the defendant’s post

‐ sentencing rehabilitation

could be considered at resentencing, id. at 493. But Pepper

does not say that a sentencing court’s discretion is unlimited.

See id. at 489 n.8 (noting that “sentencing courts’ discretion

under § 3661 is subject to constitutional constraints”). Certain

characteristics of a defendant—race, sex, and religion, for ex

‐ ample—are well understood as inappropriate factors to con

‐

sider at sentencing. See U.S.S.G. § 5H1.10; United States v. Tru

‐ jillo

‐ Castillon

, 692 F.3d 575, 579 (7th Cir. 2012). Moreover, a

consecutive sentence under § 924(c) is irrelevant to § 3661,

which concerns factual information about a defendant’s

“background, character, and conduct ....” § 3661;8 Nos. 15

‐ 2407, 15

‐ 2408

cf. United States v. LaFleur

, 971 F.2d 200, 212 n.14 (9th Cir. 1991)

(noting that a statute mandating a life sentence was not a

“‘limitation’ on the type of information” allowed by § 3661).

And even if there were tension between the statutes, we al

‐ ready concluded in Roberson that general sentencing provi

‐

sions, such as § 3661, do not undermine the specific statutory

minimum prescribed in § 924(c). See 474 F.3d at 436.

III. Conclusion

Accordingly, the judgments in both appeals are A FFIRMED

.