In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-2008

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EDDIE R. CARTER,

Defendant-Appellant.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 01 CR 783—Charles R. Norgle, Sr., Judge.

____________

ARGUED APRIL 7, 2005—DECIDED JUNE 10, 2005

____________

Before MANION, ROVNER, and SYKES, Circuit Judges.

MANION, Circuit Judge. A jury convicted Eddie Carter on

two counts of bank robbery, 18 U.S.C. § 2113(a), and one

count of brandishing a firearm in the commission of a bank

robbery, 18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced Carter to 272 months of imprisonment. On appeal,

Carter challenges three trial-related rulings by the district

court as well as the sufficiency of the evidence against him

on one of the bank robbery counts. Carter also appeals his

sentence on each of the bank robbery counts. We affirm the

conviction in all respects. As to the sentence, we order a
2 No. 04-2008

limited remand in accordance with United States v. Paladino,

401 F.3d 471 (7th Cir. 2005).

I.

Two similar bank robberies are at the heart of this criminal case. The robber’s identity and whether the same individual perpetrated each robbery were the central factual

disputes at trial.

The first robbery occurred on September 1, 2001. A

man entered the Firstar Bank located at 3610 North

Kedzie Avenue in Chicago, Illinois. Seemingly upset about

the length of the teller line, the man loudly and profanely

complained about the wait. He then impatiently left the

bank without transacting any business. Minutes later, the

same man returned, pulling out a gun and ordering everyone to the floor. One astonished bank teller named Daniel

Hernandez did not comply. Hernandez stood staring at

the bank robber, who then pointed his gun directly at

Hernandez and walked toward Hernandez. The robber then

directly told Hernandez to get down. This time, Hernandez

complied. The robber then jumped on and over the teller

counter. Once over, the robber instructed Hernandez to

open his two teller drawers. The robber then stole $2,884

from the drawers, hurdled back over the counter, and bolted

out of the bank.

Outside the bank, Arsalan Syed witnessed a man dropping cash as the man raced out of the bank. Syed then

observed the man hurry into a nearby car and speed away.

Suspicious, Syed noted the car’s license plate number and

gave it to the police. Law enforcement officials did not immediately ascertain the identity of the bank robber.

The second robbery occurred on September 4, 2001. A

man entered the First American Bank located at 2001 North
No. 04-2008 3

Mannheim Road in Melrose Park, Illinois. He drew attention

to himself by loudly asking for directions. After a customer

gave him directions, he left the bank without transacting

any business. About an hour later, the same man returned,

attempting to disguise himself with a baseball cap and dark

sunglasses. Carrying a black bag, he waited in the teller line,

and, after reaching the front of the line, he approached a

bank teller named Jennifer Velazquez. He told her that he

wanted to make a withdrawal, pulled a gun out of his bag,

pointed it at her, and said, “This is an old-fashioned holdup.

Give me $10,000.”

Velazquez did as the bank robber instructed. As she began

withdrawing bundles of $20 bills, the robber turned toward

the bank’s customers and, while waving his gun, ordered

everyone down. The bundles were marked with the bank’s

name, a branch number, and Velazquez’s teller number.

After Velazquez had placed the money into his bag, the

robber demanded additional money from the adjacent

teller’s drawer. Unable to open the drawer herself,

Velazquez proceeded to locate the other teller, Rosa Martinez, who was hiding in the vault in the back of the bank.

Having climbed over the teller counter, the robber went into

the vault. He pointed his gun directly at Martinez and

forced her to move from the vault out into the teller area to

open her drawer. After Martinez opened her drawer and

gave the robber its contents, the robber leaped back over the

counter and left the bank with $13,634.

Outside, the robber entered a car near the bank. As

the robber fled the scene, the bank’s manager, Manal

Ramadan, reported the robbery to a police dispatcher.

Ramadan described the robber and the getaway car. Not far

from the bank, the police soon identified a car matching

Ramadan’s description of the getaway car. After the matching car had failed to stop at a red light, the police attempted
4 No. 04-2008

to pull the car over, but a chase ensued. The car eventually

smashed into a police barricade. The suspect attempted to

flee on foot, but the police apprehended him within feet of

the wreck.

At the crash scene, the police found a black bag full of

money and two guns along with a cap and sunglasses

matching the ones worn by the robber in the bank. The

police took the suspect to a police station for questioning by

FBI agents. There, the suspect—determined to be Eddie

Carter—confessed to the robbery that had just occurred

(September 4). In addition, Velazquez later identified Carter

as the September 4 robber. Testing also revealed that shoe

prints left by the robber on the teller counter matched the

size, make, and model of the shoes that Carter was wearing

at the time of his arrest.

Carter quickly became the FBI’s prime suspect in the

September 1 robbery. As with the September 4 robbery, shoe

prints left by the robber jumping on and over the teller

counter during the September 1 robbery matched the size,

make, and model of the shoes that Carter was wearing at the

time of his arrest. The FBI also determined that the license

plate number on the September 1 getaway car matched a car

owned by Carter’s half-brother. Carter was in possession of

that car from August 30 to September 3, 2001. Upon locating

the car in question, the FBI discovered a crumpled piece of

paper with the handwritten words, “Relax. This is a

stick-up. Don’t do nothing.” Further, the police found a

“crack pipe” at the scene of the September 1 bank robbery.

Laboratory analysis determined that DNA from saliva on

the pipe matched Carter’s DNA.

Additionally, the FBI asked Hernandez, an eyewitness

to the September 1 robbery, to review a six-man photo array

to identify the robber. This review took place on September

6, 2001, just days after the robbery. Hernandez did not iden-
No. 04-2008 5

tify the robber for the FBI at that juncture. On December 5,

2001, the FBI asked Hernandez to review a different six-man

photo array. This time, Hernandez immediately identified

Carter as the robber. He also indicated that he had identified Carter at the first showing but, in the wake of the

traumatic robbery, he did not say so due to his fear of

Carter.

Carter was charged with both robberies, and he went

to trial on three counts. Count one charged Carter with bank

robbery under 18 U.S.C. § 2113(a) and pertained to the

September 1 robbery. Count two also charged Carter with

bank robbery under § 2113(a) and concerned the September

4 robbery. Finally, count three charged Carter, pursuant to

18 U.S.C. § 924(c)(1)(A)(ii), with brandishing a firearm

during the September 4 robbery.

With respect to count one, Hernandez’s identification

of Carter as the September 1 robber was a key piece of the

evidence supporting the government’s case, and Carter

attempted to nullify the identification in two ways. Carter

first moved to suppress the identification as unreliable.

Carter alternatively moved for the appointment of a memory expert to explain to the jury how Hernandez could have

misidentified Carter. The district court denied each motion.

At trial, Carter testified in his own defense. His direct

testimony was in narrative form, as opposed to questions

and answers. When his narrative strayed into religious

and philosophical observations, the government objected,

and the district court instructed Carter to stick to matters

relevant to the trial. After seven such warnings went unheeded, the district court limited Carter’s testimony. According to Carter, the district court cut him off before he

testified about the September 1 robbery.

The jury convicted Carter on each count. The district

court, under the mandatory sentencing guidelines, imposed
6 No. 04-2008

several enhancements based upon judge-found facts and

sentenced Carter to 188 months on counts one and two, to be

served concurrently. On count three, the district court

sentenced Carter to 84 months, to be served consecutive to

the other sentences. The result was a total imprisonment

term of 272 months.

Carter appeals the district court’s denial of his motion to

suppress Hernandez’s identification, the denial of his motion for an expert witness, and the limitation of his testimony. Further, with respect to count one, Carter challenges

the sufficiency of the evidence against him. He also appeals

his sentence on counts one and two; besides arguing that the

district court erred in applying certain enhancements, Carter

raises a Sixth Amendment challenge under United States v.

Booker, 125 S. Ct. 738 (2005). We will address each argument

in turn.

II.

A. Eyewitness Identification

Carter first argues that the district court should have

suppressed Hernandez’s identification of Carter as the

September 1 bank robber. There are two aspects to this argument. Carter first contends that the photo array shown to

Hernandez on September 6 was impermissibly suggestive

as it unfairly attracted attention to Carter’s photo. Carter

then maintains that the faulty September 6 array infected

the entire identification procedure and that, as a consequence, Hernandez’s identification of Carter from the array

of photos presented on December 5 was unreliable. Carter

therefore argues that the admission of Hernandez’s identification deprived him of a fair trial.

Review is de novo “with due deference to the [district]

court’s findings of historical fact.” United States v. Harris, 281
No. 04-2008 7

1 In the September 6 array, each subject’s chest and head are

visible. In the December 5 array, each subject’s neck and head are

visible.

F.3d 667, 670 (7th Cir. 2002). The test for determining the

admissibility of such identifications has two steps. First, the

defendant must establish that the photo array was “unduly

suggestive.” Id. Second, if the first step is met, then the

government must establish that the identification was

nonetheless “reliable.” Id.

Carter concedes that the December 5 photo array, standing alone, is not unduly suggestive. Rather, as indicated

above, he argues that the unduly suggestive September 6

array contaminated the December 5 array. Each array contained six photos arranged in two equal rows. Six is a sufficient number of photos for such a line-up. See United States

v. Galati, 230 F.3d 254, 260 (7th Cir. 2000); United States v.

Moore, 115 F.3d 1348, 1360 (7th Cir. 1997); United States v.

Sleet, 54 F.3d 303, 309 (7th Cir. 1995). Further, in each array,

the photos were similar shots1

 of young, black men with

similar facial hair and other similar features. See Moore, 115

F.3d at 1360; Sleet, 54 F.3d at 309.

While admitting these similarities exist, Carter nevertheless contends that the September 6 array unfairly attracts

attention to his photo because his photo appears in the

bottom-center position of the six photos and because Carter

is wearing a white shirt in his photo. However, beyond his

personal opinion and the array itself, Carter has not offered

any support for his conclusions. Contrary to his belief, the

array does not intrinsically prove his assertions. We thus

have no reason to believe that any one of the six photo

positions is more prominent than the other five or that a

white shirt unfairly draws attention. Carter, furthermore, is
8 No. 04-2008

not the only subject wearing a white shirt. Moreover, if the

bottom-center position is an inherently pronounced position

as Carter argues, then every photo array with a suspect

pictured in the bottom-center position could be held unduly

suggestive. We see no basis for such a rule. All that said,

Carter does point to an imperfection in the September 6

array. The background of two photos is dark gray while the

background of the other four photos, including Carter’s

photo, is light gray. However, this difference does not make

the array unduly suggestive in this case. The two dark-gray

photos are not so dark as to make subjects unrecognizable,

and, even if they were, four light-gray photos still remained.

See Harris, 281 F.3d at 669-70 (finding a four-man photo

array “reasonable”). Additionally, an argument can be

made, contrary to Carter’s contention, that the darker, but

still-clear photos draw the viewer’s eye away from Carter

and to the subjects with the darker backgrounds. At bottom,

Carter has not given us a concrete reason to believe that the

light-gray shade of his photo’s background—in isolation or

in combination with his bottom-center and white-shirt

arguments—unfairly drew attention to his photo. He has

not met his burden. The September 6 array was not unduly

suggestive.

Further, the September 6 array did not taint the December

5 array. Carter complains that, in the December 5 array, he

was again placed in the bottom-center position and that he

was the only individual shown in both arrays. Again, Carter

makes these assertions without citation to any authority or

any evidence beyond the array itself. Thus, as before, his

placement in the bottom-center position does not tarnish the

array. Moreover, just because Carter appeared in the same

position twice does not change that fact when, as in this

case, there is a substantial passage of time between showings, i.e., three months. Furthermore, as we have previously
No. 04-2008 9

concluded, “there is nothing per se impermissible about

placing the same suspect in two different identification

procedures” especially when there is a “substantial passage

of time” between the two showings. Id. at 670-71 (“[A]fter

such a substantial passage of time, it is unlikely that [the

eyewitnesses] was influenced by the earlier photograph, let

alone that it led to misidentification.”) (six months). Carter

has failed to show that the photo identification procedure in

this case was unduly suggestive. The district court correctly

admitted the identification at trial.

Although we need not address the second step, we briefly

observe that the record demonstrates that the identification

was reliable. Hernandez saw Carter twice at the bank. He

first saw Carter when Carter made a scene about waiting in

line (apparently casing the bank). He also saw Carter during

the robbery, at which time Hernandez stared directly at

Carter as Carter approached and spoke to him. Hernandez

had more than a sufficient opportunity to view Carter and,

for a period, had his attention squarely fixed on Carter.

These important factors show that, under the totality of the

circumstances, the identification was reliable. See Moore, 115

F.3d at 1360-61.

B. Expert Witness

Carter further contends that the district court abused its

discretion in denying his motion for the appointment of an

expert regarding the reliability of Hernandez’s eyewitness

identification. Although Carter was financially eligible for

such an appointment under 18 U.S.C. § 3006A(e)(1), the

district court determined that the appointment was unnecessary because the expert testimony would be inadmissible

under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579

(1993), and Federal Rule of Evidence 702. Specifically,
10 No. 04-2008

the district court held that the proposed testimony from

Carter’s requested expert, psychologist Geoffrey Loftus,

would not aid the jury in its determination and, further, that

any such testimony might actually confuse, mislead, or

unduly influence the jury. Carter does not argue that the

district court improperly applied the Daubert framework,

and the government does not and did not challenge Loftus’s

qualifications; therefore, our review is only for abuse of

discretion, and our focus is only on the usefulness of

the testimony, i.e., whether it would actually assist the jury

in understanding or determining a fact in issue. See

United States v. Hall, 165 F.3d 1095, 1101-03 (7th Cir. 1999);

Fed. R. Evid. 702; see also United States v. Welch, 368 F.3d 970,

973 (7th Cir. 2004); United States v. Daniels, 64 F.3d 311, 315

(7th Cir. 1995); Fed. R. Evid. 403.

Carter wanted Loftus to inform the jury that an eyewitness’s memory can sometimes be inaccurate. Loftus

planned to opine about factors that could affect memory,

including the circumstances surrounding the event in question, the amount of stress on the eyewitness, the amount of

attention paid by the witness, and the law enforcement

procedures used to elicit the witness’s memory. In general,

however, jurors understand that memory can be less than

perfect. See Hall, 165 F.3d at 1105 (“the hazards of eyewitness identification are ‘well within the ken of most lay

jurors’ ”) (quoting United States v. Larkin, 978 F.2d 964, 971

(7th Cir. 1992)). Such awareness is even greater when potential problems in eyewitness identifications are brought to

the jury’s attention through cautionary instructions. See

United States v. Crotteau, 218 F.3d 826, 832-33 (7th Cir. 2000).

Furthermore, “the credibility of eyewitness testimony is

generally not an appropriate subject matter for expert testimony because it influences a critical function of the jury—

determining the credibility of witnesses.” Hall, 165 F.3d at
No. 04-2008 11

1107. Consequently, there is a “long line of Seventh Circuit

cases holding that district courts did not commit abuses of

discretion by excluding expert testimony regarding the

reliability of eyewitness identifications.” Welch, 368 F.3d at

973 (citing Crotteau, 218 F.3d at 833; Hall, 165 F.3d at 1105;

Daniels, 64 F.3d at 315; Larkin, 978 F.2d at 971; United States

v. Curry, 977 F.2d 1042, 1052 (7th Cir. 1992)). While recognizing this line of cases, the district court correctly realized

that “expert testimony regarding eyewitness identification,

memory, and perception is not per se unhelpful.” Welch, 368

F.3d at 975; see also Hall, 165 F.3d at 1104-05 (citing Curry,

977 F.2d at 1051-52). Here, the district court exercised

discretion by evaluating the facts and circumstances of this

particular case in light of our case law and, further, did not

abuse its discretion in concluding that this case did not

present “an unusual or compelling situation in which the

aid of an expert witness is required.”

In addition, the district court’s decision was bolstered

by three “additional considerations.” Hall, 165 F.3d at 1107.

First, Hernandez was cross-examined on his ability to perceive, remember, and identify Carter as the bank robber. See

Welch, 368 F.3d at 974-75. Second, the government had

significant additional evidence (e.g., getaway car, shoe

print, crack pipe DNA) to corroborate Hernandez’s identification. See Hall, 165 F.3d at 1107-08 (“[T]he existence of

corroborating evidence undercuts the need, except in the

most compelling cases, for expert testimony on eyewitness

identifications.”). Third, the district court twice cautioned

the jurors, through instructions, about assessing witnesses

and the risks associated with eyewitness identifications. See

Crotteau, 218 F.3d at 832-33. These developments—es-
12 No. 04-2008

2 The district court’s two instructions followed the exact language of our pattern instructions 1.03 and 3.08. See Crotteau, 218

F.3d at 832-33. Instruction 3.08 bears repeating here: “You have

heard testimony of an identification of a person. Identification

testimony is an expression of belief or impression by the witness.

You should consider whether, or to what extent, the witness had

the ability and the opportunity to observe the person at the time

of the offense and to make a reliable identification later. You

should also consider the circumstances under which the witness

later made the identification. The government has the burden of

proving beyond a reasonable doubt that the defendant was the

person who committed the crime charged.” Seventh Circuit

Pattern Criminal Jury Instructions 3.08 (1999).

pecially the jury instructions,2 which effectively gave the

jury the same key points on eyewitness identifications that

the expert would have presented to them—provide further

support for the district court’s conclusion that the proposed

expert testimony would not assist the jury. The district court

did not abuse its discretion.

C. Defendant’s Testimony

Carter next protests the district court’s decision to limit his

testimony at trial. Carter testified in his own defense

by reading, over the government’s objection, self-styled

“affidavits” into the record. At first, Carter directed this

narrative testimony toward undermining his confession

to the September 4 robbery, asserting that his extreme intoxication at the time resulted in a false confession. When he

reached his fourth “affidavit,” his narrative turned to his

religious and philosophical beliefs. The government raised

a relevancy objection, which the district court sustained. The

district court then directed Carter to stick to matters relevant to the trial. Carter ignored the order and returned to
No. 04-2008 13

3 Fed. R. Evid. 611(a): “The court shall exercise reasonable control over the mode and order of interrogating witnesses and

presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid

needless consumption of time, and (3) protect witnesses from

harassment or undue embarrassment.”

4 Carter also testified on cross-examination, but he continually

avoided the government’s questions by repeating the response,

“I stand on my affidavit.” Cf. United States v. Bartelho, 129 F.3d

663, 672-74 (1st Cir. 1997) (defendant’s entire testimony stricken

based on his refusal to answer government’s questions on crossexamination).

his commentary. Once seven such warnings were disregarded, the district court, over Carter’s protestations,

imposed a time limit on the remainder of Carter’s testimony

pursuant to Federal Rule of Evidence 611(a).3

 The length of

the time limit is not discernable from the trial transcript, but

Carter’s entire direct testimony lasted approximately ninety

minutes.4

Supposedly, Carter was eventually going to say something about the September 1 robbery. Carter therefore complains that the district court violated his constitutional right

to testify in his own defense. See United States v. Manjarrez,

258 F.3d 618, 623 (7th Cir. 2001). When an evidentiary ruling

“directly implicate[s]” a defendant’s constitutional right,

United States v. Hernandez, 84 F.3d 931, 933 (7th Cir. 1996),

we review de novo the question of whether the “evidentiary

ruling . . . had the effect of infringing” that right while still

“taking into account the permissible scope of the [district]

court’s discretion” in evidentiary matters, United States v.

Wilson, 307 F.3d 596, 599 (7th Cir. 2002).

Simply stated, a criminal defendant does not have an

absolute, unrestrainable right to spew irrelevant—and thus
14 No. 04-2008

inadmissible—testimony from the witness stand. See

United States v. Lea, 249 F.3d 632, 642 (7th Cir. 2001)

(“The accused does not have an unfettered right to offer

testimony that is incompetent, privileged, or otherwise

inadmissible under standard rules of evidence.”) (quoting

Taylor v. Illinois, 484 U.S. 400, 410 (1988)); Fed. R. Evid. 402

(“Evidence which is not relevant is not admissible.”); see also

United States v. Moreno, 102 F.3d 994, 999 (9th Cir. 1996); cf.

United States v. Pless, 982 F.2d 1118, 1123 (7th Cir. 1992)

(testimony may be “in a narrative form as long as it stays

within the bounds of pertinency and materiality”) (quoting

United States v. Garcia, 625 F.2d 162, 169 (7th Cir. 1980)).

Furthermore, district courts have the authority to take

appropriate measures to control a “stubbornly defiant”

defendant. United States v. Brock, 159 F.3d 1077, 1079 (7th

Cir. 1998) (quoting Illinois v. Allen, 397 U.S. 337, 343 (1970)).

Unquestionably, Carter’s venting of his religious and philosophical views to the jury was irrelevant. Further, Carter

provided no reasonable indication that he would end his

rant and resume testifying about relevant matters such as

the September 1 robbery. The generously patient district

court gave Carter seven warnings to stay on point, yet

Carter doggedly refused. Had Carter wished to discuss the

September 1 robbery, he had ample opportunity. Consequently, Carter can assign fault to no one but himself. In

sum, the district court did not err in limiting Carter’s trial

testimony because Carter flagrantly and incessantly ignored

the district court’s repeated orders to avoid irrelevant matters.

D. Sufficient Evidence

Carter also challenges the sufficiency of the evidence presented by the government for his conviction on count one,
No. 04-2008 15

the September 1 robbery. The essential question in such a

challenge is whether, in viewing the evidence in the light

most favorable to the government, “any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.” United States v. Arocho, 305 F.3d 627,

639 (7th Cir. 2002). “We neither reweigh the evidence nor

assess the credibility of the witnesses.” Id. In short, we will

overturn a conviction only when “the record contains no

evidence, regardless of how it is weighed, from which a jury

could find guilt beyond a reasonable doubt.” Id. (internal

quotation omitted).

To have convicted Carter of bank robbery under 18 U.S.C.

§ 2113(a) for the bank robbery alleged in count one, the jury

was required to find beyond a reasonable doubt that (1)

Carter took from the person or presence of another money

belonging to Firstar Bank, (2) the bank was federally

insured, and (3) Carter acted to take such money by force

and violence or by intimidation. See Seventh Circuit Pattern

Criminal Jury Instructions 18 U.S.C. § 2113 (1999). The

second element concerning federal jurisdiction is not in

dispute. Carter attacks the first and third elements only by

arguing that the government’s evidence failed to show that

he was the bank robber.

The government linked Carter to the September 1 robbery

in five ways. First, Hernandez, an eyewitness, identified

Carter as the robber. Second, the license plate number on

the September 1 getaway car matched a car lent to Carter by

a family member from August 30 to September 3. Third, in

the car, a crumpled note was present that stated: “Relax, this

is a stick-up. Don’t do nothing.” Fourth, DNA from saliva

on a crack pipe found at the bank matched Carter’s DNA.

Fifth, shoe prints left by the robber jumping on the teller

counter matched the size, make, and model of the shoes that

Carter was wearing at the time of his arrest. In response,
16 No. 04-2008

Carter contends that Hernandez misidentified him; that the

getaway car was tied to family members who were initially

suspects in the robbery but who lied to the authorities about

Carter; that none of the (testable) fingerprints recovered

from the bank and the car matched Carter’s prints; that the

robber did not wear gloves; that, besides Carter’s DNA, at

least one other person’s DNA was found on the pipe; and

that, as the shoes in question were mass produced, other

individuals also possessed the same make, model, and size

of the shoes that left the prints at the bank. Carter presented

these contentions of innocence to the jury, and the jury

rejected them. Carter’s approach on appeal invites us to

reweigh the evidence. That is not our role. Rather, we must

take the evidence in a light most favorable to the government and then determine if there is evidence to convict. In

that light, there is more than enough evidence of guilt in this

case to find, beyond a reasonable doubt, that Carter was the

September 1 robber. Carter’s conviction for the bank

robbery charged in count one is accordingly affirmed.

III.

As for sentencing, Carter contests his sentence on counts

one and two. He does not appeal count three in any respect.

Under the mandatory guidelines, the district court formulated Carter’s sentence on count one by starting with the

base offense level for robbery, twenty levels, and adding

two levels for taking property from a financial institution,

four levels for using a dangerous weapon, and two levels

for obstructing justice. See U.S.S.G. §§ 2B3.1(a), (b)(1),

(b)(2)(D), 3C1.1 (2003). Thus, the September 1 robbery

carried an adjusted offense level of 28. For count two, the

district court again began with the twenty-level base and

added two levels for the financial institution, two levels for

physically restraining a person, one level for stealing more
No. 04-2008 17

than $10,000, two levels for obstructing justice, and two

levels for recklessly endangering others in the course of

fleeing from a law enforcement officer. See U.S.S.G.

§§ 2B3.1(a), 2B3.1(b)(1), (b)(4)(B), (b)(7)(B), 3C1.1, 3C1.2

(2003). The September 4 robbery thus resulted in an adjusted offense level of 29. Then, pursuant to the grouping

procedures for multiple counts, the district court applied

U.S.S.G. § 3D1.4 and arrived at a combined adjusted offense

level of 31 for count one and count two, which would be

served concurrently. Level 31, with Carter’s category VI

criminal history, translated into a sentencing range of 188-

235 months, and the district court sentenced at the bottom

of that range.

On appeal, in addition to attacking two enhancements,

physical restraint in count two and obstruction of justice in

each count, Carter raises what is now a Booker challenge to

his sentence under the Sixth Amendment. United States v.

Booker, 125 S. Ct. 738 (2005). Under Booker, the formerly

mandatory federal sentencing guidelines have become

advisory. See id. at 767. We will address Carter’s Booker argument first.

A. Booker

According to Booker, a sentence violates the Sixth

Amendment when it exceeds the maximum sentence authorized through the facts established by a jury verdict or a

guilty plea or by facts otherwise admitted to by the defendant. 125 S. Ct. at 756. Here, the jury’s bank robbery verdicts

authorized the base offense level and also permitted the

inclusion of the financial institution enhancement in the

calculation. Additionally, at sentencing, Carter conceded the

applicability of the dangerous weapon enhancement in

count one. As to the rest, they were imposed as the result of
18 No. 04-2008

judge-found facts. Carter’s sentence thus runs afoul of the

Sixth Amendment, as interpreted by Booker, because, under

the mandatory guidelines, the sentence exceeded the

maximum sentence authorized by the facts admitted by

Carter or established by the jury’s verdicts. 125 S. Ct. at 756.

Carter, however, did not raise this Sixth Amendment

argument before the district court. The matter is therefore

governed by the plain-error standard of review and our

recent decision in United States v. Paladino, 401 F.3d 471

(7th Cir. 2005). Pursuant to Paladino, a limited remand is

required in this case to ascertain whether the Sixth

Amendment error was prejudicial. See id. at 483-85. Specifically, under the Paladino procedure, we will retain

jurisdiction over the appeal while ordering “a limited remand to permit the sentencing judge to determine whether

he would (if required to resentence) reimpose his original

sentence.” Id. at 484.

To assist the district court in its deliberations on limited

remand, we next turn to Carter’s contentions that the district

court misapplied the guidelines, which, although no longer

mandatory, must still be consulted. See Booker, 125 S. Ct. at

767; United States v. Parra, 402 F.3d 752, 766-67 (7th Cir.

2005). Again, Carter contests the physical restraint enhancement in count two and the obstruction of justice

enhancements in each count.

B. Physical Restraint

The district court included the physical restraint enhancement in its sentencing decision because Carter, to facilitate

the September 4 robbery, forced teller Rosa Martinez from

the bank’s vault to her teller drawer at the point of a gun.

Section 2B3.1(b)(4) permits a two-level increase when “any

person was physically restrained to facilitate commission of
No. 04-2008 19

the offense.” Application Note 1(K) of § 1B1.1 further

provides that “ ‘[p]hysical restraint’ means the forcible

restraint of the victim such as by being tied, bound, or

locked up.” In United States v. Doubet, we stated that the

qualifying phrase “such as” in this definition indicates that

the words “tied, bound, or locked up” “are listed by way of

example rather than limitation.” 969 F.2d 341, 346 (7th Cir.

1992) (quoting United States v. Stokley, 881 F.2d 114, 116 (4th

Cir. 1989)).

Carter opposes the enhancement on account of the lack of

bodily contact with or confinement of Martinez. The issue,

however, is physical or forcible restraint. Such restraint is

not present, as Carter contends and as we observed in

Doubet, when an armed robber simply orders his victims not

to move during an armed robbery. 969 F.2d at 346. For if it

were, the enhancement would be rendered meaningless as

it would apply in virtually every armed robbery—“a threat

not to move is implicit in the very nature of armed robbery.” Id. Accordingly, for the enhancement to apply,

something more is required, and, here, we have something

more. Carter, in the immediate presence of Martinez,

focused his gun on her and then, sustaining that focus,

moved her out of the bank’s vault to her drawer against her

will. The sustained focus of the weapon on the victim

coupled with the compelled movement of the victim to

another area constitutes sufficient forcible restraint to

warrant the enhancement. As we held in Doubet, “[f]orce

is not limited to physical force, but may also encompass

the operation of circumstances that permit no alternative

to compliance.” Id. at 347 (quotation omitted). Here, with

Carter’s gun pointed at her from only inches away,

Martinez had no alternative but to comply with his instructions to move. Carter’s conduct was thus more culpable

than a robber who does not forcibly restrain a victim to
20 No. 04-2008

facilitate his offense, see id.; therefore, the district court

correctly took Carter’s restraint of Martinez into account in

sentencing Carter.

C. Obstructing Justice

Carter obstructed justice, according to the district court,

by committing perjury during his trial testimony, specifically, by lying about his confession and its surrounding

circumstances. For purposes of the two-level enhancement

in § 3C1.1, a defendant obstructs justice by committing

perjury if the defendant willingly intends to provide false

testimony under oath on a material issue. See United States

v. Saunders, 359 F.3d 874, 878-79 (7th Cir. 2004).

Carter’s confession was a material piece of evidence

that went to his guilt on the bank robbery charge in count

two, and Carter used his trial testimony to undermine that

evidence. As mentioned above, Carter began his narrative

testimony by asserting that his inebriated state at the time

of his questioning resulted in a bogus confession. According

to Carter, he was “so totally blown away” by a “three-day”

“illegal drugs and alcohol” “binge” that nothing he told his

interrogators could have been truthful. Carter testified that

he said what he said “only to put a stop to all

the questioning” because he “was totally wasted” and

wanted to get “away long enough . . . to reach a safe haven

and calm down.” Carter’s account is contradicted by FBI

agent Bruce Harford’s testimony. While Carter declared that

he was “hallucinating,” “stoned out of [his] mind,” “thoroughly confused,” and unable to “understand anything of

the line of questioning that was going on,” Harford testified

that Carter was coherent, responsive, and aware of what

was being asked. Carter further averred that the agents

directed and manufactured his confession. Harford, how-
No. 04-2008 21

ever, testified that, after about a forty-five minute questionand-answer session in which Carter admitted many aspects

of the September 4 robbery, he asked Carter if Carter was

willing to prepare a signed statement, and, when Carter

agreed, he gave Carter a blank piece of paper and pen,

which Carter used to author his confession. Also, Carter

denied signing his handwritten confession, but Harford

testified that he witnessed Carter’s signature on the confession. The district court found Harford to be truthful and

Carter untruthful, and, on this record, the district court did

not err in including an obstruction enhancement on count

two. See United States v. Hall, 101 F.3d 1174, 1178-79 (7th Cir.

1996).

The obstruction enhancement is more problematic on

count one, the September 1 robbery, because Carter’s confession only related to the September 4 robbery. The government attempts to stretch Carter’s claims about his three-day

binge to the September 1 robbery, but the record does not

indicate that he somehow lied on the witness stand about

the September 1 robbery. He simply did not discuss it.

Nonetheless, applying the obstruction enhancement in

count one was a harmless error. See Fed. R. Crim. P. 52(a).

As indicated above, counts one and two were grouped for

guideline purposes under § 3D1.4. Recall that the adjusted

offense levels for counts one and two were 28 and 29,

respectively. Under the intricacies of § 3D1.4, count one’s

offense level would have had to be 24 or lower to make a

difference in the combined offense level and the applicable

guideline range. Since the obstruction error was only a twolevel error (i.e., the offense level would have been 26), it was

harmless because it had no effect on Carter’s sentencing

range and sentence at the bottom of that range. See United

States v. Woods, 233 F.3d 482, 485-86 n.5 (7th Cir. 2000).
22 No. 04-2008

IV.

We AFFIRM Carter’s conviction in all respects. The district

court correctly refrained from suppressing the contested

eyewitness identification. The district court did not abuse its

discretion in rejecting Carter’s memory expert. The district

court did not err in limiting Carter’s trial testimony, and the

government presented sufficient evidence to convict Carter

on the bank robbery charged in count one. As to sentencing,

the district court correctly included the physical restraint

and obstruction of justice enhancements in count two, and

the inclusion of the obstruction enhancement in count one

was harmless. Nonetheless, given Booker, we order a

LIMITED REMAND to the district court for further proceedings

consistent with Paladino and this opinion. Pending the

outcome of the limited remand, we retain jurisdiction over

this appeal.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-10-05