In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2397

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

REGINALD J. OWENS,

Defendant-Appellant.

____________

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 03 CR 800—Ruben Castillo, Judge.

____________

ARGUED FEBRUARY 23, 2006—DECIDED MARCH 17, 2006

____________

Before EASTERBROOK, RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge. On September 16, 2003, a grand jury

sitting in the Northern District of Illinois returned a threecount indictment, charging Reginald Owens with bank

robbery in violation of 18 U.S.C. § 2113(a). He pleaded

guilty to all three counts. The district court sentenced him to

three concurrent terms of 60 months’ imprisonment. It also

imposed a restitution obligation of $7,967. Mr. Owens now

appeals his sentence. For the reasons set forth in this

opinion, we affirm the judgment of the district court. 
2 No. 05-2397

1 Mr. Owens robbed Uptown National Bank on May 5, 2003;

North Community Bank on July 15, 2003; and Bank One on

August 18, 2003. He stole a total of $20,416—$13,725 of which

was recovered by the police after Mr. Owens was caught by

security officials in the course of the third robbery.

The parties dispute whether Mr. Owens used threatening notes

in the course of the robberies. The Government submitted that,

during each of the three robberies, Mr. Owens handed to the

bank teller a note which indicated that, if the teller did not turn

over the money requested, he would be killed. Mr. Owens rightly

notes that only the note from the third robbery was recovered,

and it contained no threat, implicit or explicit. Regardless, the

resolution of this issue does not affect the disposition of this

appeal. The district court thoroughly considered the matter at

sentencing and determined that it was moot. Neither party raises

the issue before us.

I

BACKGROUND

In 2003, Mr. Owens committed three bank robberies in

a four-month period at various locations in Chicago.1

During the third robbery, Mr. Owens was pursued by

security officials, apprehended and arrested.

On September 16, 2003, Mr. Owens was indicted on

three counts of bank robbery. See 18 U.S.C. § 2113(a).

Pursuant to an agreement with the Government, he pleaded

guilty to all three counts on December 9, 2003. During the

hearing on the guilty plea, Mr. Owens stipulated to an

advisory sentencing range of 57-71 months, based on the

following calculations: Beginning with a base offense level

of 20, two points were added because Mr. Owens stole

property from a financial institution, see U.S.S.G.

§ 2B3.1(b)(1); one point was added because the banks’
No. 05-2397 3

aggregate losses exceeded $10,000 but were less than

$50,000, see id. § 2B3.1(b)(7); two points were added because,

in the course of flight, persons assisting in Mr. Owens’

apprehension suffered bodily injury, see id. § 2B3.1(b)(3)(A);

and three points were added because Counts I, II and III

could not be grouped as “closely related” offenses, see id. §

3D1.4. The parties also agreed to deduct three points for

acceptance of responsibility, see id. § 3E1.1, resulting in a

total offense level of 25. Coupled with a criminal history of

I, the total offense level produced an advisory sentencing

range of 57-71 months.

Mr. Owens’ sentencing hearing was held on May 3, 2005.

Defense counsel first argued that there existed “theoretical

confusion over Blakely and Booker” and contended that

the retroactive application of the “remedial opinion in

Booker . . . creates an illogical result and raises ex post facto

problems.” R.67 at 15. The district court rejected these

arguments: 

I am obligated as a District Court Judge . . . to follow the

Booker remedial opinion and apply the guidelines on an

advisory basis, in the first instance by calculating the

relevant sentencing guideline range. So my calculation

of the relevant sentencing guideline range needs to take

into account the entire Booker decision.

Id. at 16.

Defense counsel also submitted that the court should

impose a sentence lower than the sentence computed under

the Guidelines, to account for: (1) Mr. Owens’ HIV-positive

status, the need for medical treatment and his shortened life

expectancy, id. at 20-21, (2) Mr. Owens’ personal problems,

including his financial desperation and clinical depression,

id. at 19, (3) Mr. Owens’ remorseful nature, including his

recognition that he has “made terrible choices,” id. at 18,
4 No. 05-2397

and (4) the fact that the crimes were merely Class C felonies,

which are “probationable,” id. at 22. Mr. Owens personally

spoke on his behalf as well, urging that he was remorseful

and not “an evil person.” Id. at 29. The district court ultimately imposed three concurrent terms of 60 months’

imprisonment, as well as a restitution obligation in the

amount of $7,967. Id. at 30-31.

II

DISCUSSION

A.

Mr. Owens contends that the district court’s application of

various sentencing enhancements violated the Ex Post Facto

Clause. He submits that, at the time of his criminal conduct,

a judge was not permitted to increase the maximum sentencing range on the basis of facts not charged in the

indictment or proven to a jury beyond a reasonable doubt;

therefore, he reasons, retroactive application of United States

v. Booker, 543 U.S. 220 (2005), permitting the judge to apply

enhancements premised on judge-found facts, violates his

Fifth Amendment rights.

We previously have rejected this contention. In United

States v. Jamison, 416 F.3d 538 (7th Cir. 2005), for example,

we recognized that a defendant has a right to fair notice

of criminal penalties; nevertheless, the retroactive application of the remedial portion of Booker, we held, does not

violate either due process or ex post facto guarantees: 

Jamison essentially seeks a sentence that comports

with the Sixth Amendment requirements of Booker,

but wants to avoid the possibility of a higher sentence under the remedial holding of Booker. Unfortunately for Jamison, the Supreme Court clearly instructed
No. 05-2397 5

that both holdings should be applied to all cases on

direct review . . . . [Moreover,] Jamison knew that he

was committing a crime at the time he distributed

cocaine base. The new judicial interpretation of the law

brought about by Booker affects his punishment, not

whether his conduct was innocent. Distributing cocaine

base was not made a crime by the Court’s decision in

Booker. Jamison also had fair warning that distributing

cocaine base was punishable by a prison term of up to

twenty years, as spelled out in the United States Code.

Jamison had sufficient warning of the possible consequences of his actions, and his sentence does not run

afoul of any of the core concepts discussed in Rogers [v.

Tennessee, 532 U.S. 451 (2001)]. 

Id. at 539. We reiterated this holding and rejected a

claim similar to the claim made by Mr. Owens in United

States v. Cross, 430 F.3d 406, 409-10 (7th Cir. 2005) (holding

that the retroactive application of Booker to a crime that

was committed before 2005 does not violate the Ex Post

Facto Clause, given that the defendant had fair warning

of statutory maximums).

Mr. Owens does not attempt to distinguish Jamison or

Cross, nor could he. He was sentenced to 60 months’

imprisonment, a term well within the statutory maximum for three counts of bank robbery. See 18 U.S.C.

§ 2113(a) (imposing a statutory maximum of twenty

years’ imprisonment for each violation). Indeed, he was

warned at his change-of-plea hearing that the maximum

term of imprisonment for which he was eligible was 20

years’ imprisonment on each count, totaling 60 years’

imprisonment. Therefore, we must conclude that Mr. Owens

had “fair warning” of the “possible consequences of his

actions,” as “spelled out in the United States Code.” Jamison,
6 No. 05-2397

2 Contrary to Mr. Owens’ contention, at the time that Mr. Owens

committed his crimes, Blakely v. Washington, 542 U.S. 296 (2004),

had not yet been decided. Therefore, Mr. Owens cannot claim a

legitimate expectation, premised on Blakely’s holding, that facts

forming the basis of the sentencing enhancements imposed

would be found beyond a reasonable doubt by a jury, rather than

by a judge.

416 F.3d at 539.

B.

Mr. Owens also submits that the district court erred in

applying sentencing enhancements premised on judgefound facts. In his view, the “statutory maximum” for his

crimes should be defined as the high end of the guidelines sentencing range as computed “without any additional

findings” by the judge. Appellant’s Br. at 29-30. He continues that, because the district court found additional facts

and then used these facts to increase the advisory sentencing range from 33-41 months to 57-71 months, the resulting

60-month term violates his Sixth Amendment rights, as

recognized in Blakely. See Blakely v. Washington, 542 U.S. 296

(2004).

Mr. Owens’ position is without merit.2 Booker clearly

permits a district court to grant a sentencing enhancement based on facts not charged in the indictment, not

proven to a jury beyond a reasonable doubt or not admitted

by the defendant. 543 U.S. at 226-27; see also United States v.

Robinson, 435 F.3d 699, 701-02 (7th Cir. 2006) (“True, Booker

holds that judges may not find facts that increase the

maximum punishment and that a mandatory sentencing

guidelines scheme violates that rule. But Booker resolved the
No. 05-2397 7

3 Mr. Owens did not object to those calculations or to the

application of enhancements at either the change-of-plea hearing or the sentencing hearing, nor does he raise such an objection

on appeal.

problem by making the guidelines advisory; judicial factfinding in sentencing is acceptable because the guidelines

are now nonbinding.”). Our post-Booker cases have explained the two steps in reviewing sentences now that the

Sentencing Guidelines are advisory: First, we examine

whether the district court calculated the appropriate

advisory sentencing range; and second, we review whether

the sentence imposed was reasonable, by reference to the

sentencing factors specified in 18 U.S.C. § 3553(a). See id. at

700-01.

Here, the district court properly calculated the advisory guidelines range,3

 as well as appropriately recognized the Sentencing Guidelines as advisory. Therefore,

the district court correctly applied the sentencing enhancements, and we review the sentence only for reasonableness.

C.

Mr. Owens next challenges his sentence as unreasonable. He contends that the district court failed to consider applicable § 3553(a) factors. He urges specifically

that his crimes were nonviolent, that he cooperated fully

with the investigation and that probation would have

been a viable alternative to imprisonment.

In United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.

2005), we recognized that sentences that fall within the

advisory guidelines range—like Mr. Owens’—are entitled to
8 No. 05-2397

a rebuttable presumption of reasonableness. To rebut that

presumption, Mr. Owens must establish that, when viewed

in light of the factors specified in § 3553(a), his sentence is

unreasonable. Id.

Mr. Owens is correct that the district court did not discuss

at-length each and every sentencing factor specified in §

3553(a). However, a fair reading of the sentencing transcript

makes clear that the court did consider all of the information presented by the parties. Indeed, the court noted

specifically that it had received letters on behalf of the

defendant and that it would consider them and give them

the weight that the court deemed appropriate. The court

also considered the defendant’s background and the nature

of the offenses and remarked: 

You strike me as an intelligent person . . . . [Y]ou

have no criminal history. But then we look at the

offenses here, I have to take into consideration that you

committed three robberies within four months. And

I understand that you came forward. You [sic] motivated to come clean. That is to your credit. And I

will certainly take that into consideration.

But I also see that you worked at two different banks.

And there is no such thing as a nonviolent robbery

because there are just too many wild cards when you go

up to a teller, with whatever type of note, and start

demanding money. You don’t know what’s going to

happen. That teller drops dead of a heart attack; you are

on the line for a felony murder offense. If some group of

security guards or other involved citizens decide to take

certain action to stop the robbery and someone gets hurt

in the robbery, it quickly gets out of control. 

In other words, what I am telling you is, the minute

you decide to take money from an institution like
No. 05-2397 9

this, things just quickly get out of control. The fact

that you did that three times within four months

leads me to calculate when I consider all the factors

under federal law, under [§] 3553, that it would not be

appropriate to sentence you to anything less than a

sentencing guidelines sentence. 

R.67 at 29-30.

We believe that this explanation is sufficient to meet

the standards set forth in our post-Booker decisions.

We previously have held that a judge need not apply

§ 3553(a) in a checklist fashion or rehearse on the record

all considerations listed therein; rather, an “adequate

statement” of the judge’s justifications for the sentence

imposed is sufficient, so long as this justification is “consistent with section 3553(a).” United States v. Dean, 414

F.3d 725, 729 (7th Cir. 2005).

The record reflects that the district court met this standard. It first discussed the nature of Mr. Owens’ offenses,

noting that all three robberies were committed within a

short, four-month time frame. It emphasized that, although not overtly violent, the robberies were nevertheless dangerous and unpredictable. R.67 at 30 (noting that

a bank teller could have a heart attack, or security personnel

could be harmed in the course of attempting to stop the

robbery). These observations were directed to considerations included in § 3553(a). See 18 U.S.C. § 3553(a)(1)

(specifying that the court must consider “the nature and

circumstances of the offense”). The court also weighed “the

history and characteristics of the defendant,” as required by

§ 3553(a)(2). It recognized that Mr. Owens had no criminal

history and that he immediately assumed responsibility for

his crimes. But, according to the district court, these facts

were made less relevant by the nature and seriousness of the
10 No. 05-2397

offense, and by the fact that Mr. Owens’ prior experience

working at a bank placed him on notice of the possible

implications of his conduct, including that “things [could]

just quickly get out of control.” R.67 at 30. The fact-specific

balancing of these factors is entitled to great deference by

this court. United States v. Newsom, 428 F.3d 685, 688 (7th

Cir. 2005).

Additionally, the court noted that Mr. Owens had accepted responsibility for his actions and exhibited remorse.

It also assured him that the court considered his medical

condition. Nevertheless, it found that, when one weighs

these facts against the serious nature of the offenses and the

short time frame in which they were committed, a lengthy

term of imprisonment was desirable. See R.67 at 30.

The district court’s sentence—five years’ imprisonment for

the commission of three separate bank robberies in a fourmonth period—quite clearly assures us that the court took

into consideration all matters in extenuation and mitigation.

For each of these dangerous acts, the district court imposed

a sentence near the low end of the advisory range of 57-71

months; the court then directed that the three 60-month

term sentences run concurrently. A fair reading of the entire

sentencing proceeding makes clear that the court thoughtfully considered all the pertinent circumstances.

Conclusion

The district court committed no reversible error in the

imposition of the sentence and the sentence is certainly

reasonable. Accordingly, we affirm the judgment of the

district court.

AFFIRMED
No. 05-2397 11

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-17-06