United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued August 3, 2005

Decided December 22, 2005

Before

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 03-3886

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ADAM C. COLLINS,

Defendant-Appellant.

Appeal from the United States District

Court for the Southern District

of Indiana, Indianapolis Division.

No. 02 CR 123

David F. Hamilton, 

Judge.

O R D E R

Adam Collins was found guilty of armed bank robbery, 18 U.S.C. § 2113(a),

(d), and use of a firearm during the robbery, id. § 924(c), and was sentenced to

consecutive terms totaling 223 months’ incarceration—68 months above the high

end of the combined guidelines range for the two offenses. Collins argues in this

appeal that 223 months is unreasonably long. We conclude otherwise and,

accordingly, affirm the judgment.

I.

Collins and two other men robbed an Indiana branch of National City Bank,

waving guns at the employees and customers and threatening to kill anyone who

moved. On Count One—armed bank robbery—the probation officer recommended a

total offense level of 23 and a criminal history category of III; the resulting

guidelines imprisonment range was 57 to 71 months. The recommended guidelines

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 03-3886 Page 2

term for Count Two—brandishing a firearm during the holdup—was 84 months to

run consecutively, the same as the mandatory statutory minimum, see 18 U.S.C.

§ 924(c)(1)(A)(ii). But the district judge imposed a term of 105 months on Count

One and a consecutive term of 118 months on Count Two for a total of 223 months,

exceeding by 68 months the combined guidelines maximum of 155 months.

The judge moved above the high end of the guidelines range principally

because he concluded that Collins’s criminal history category underrepresents the

seriousness of his criminal history and the likelihood of recidivism. See U.S.S.G.

§ 4A1.3. That determination rests in part on the fact that Collins received no

criminal history points for a robbery and an unrelated auto theft he committed

approximately nine years before the bank robbery, when he was 15. Neither of

these juvenile offenses factored into Collins’s criminal history score because of his

age when he committed the crimes and the length of time between those offenses

and the crimes here. The court observed that had Collins been an adult when he

committed the uncounted juvenile robbery, he would have qualified as a career

offender because he also had accumulated a countable conviction for aggravated

battery. The court noted that since a career offender is automatically placed in

criminal history category VI, Collins would have faced at least 25 years under the

guidelines had his juvenile robbery offense counted towards his criminal history

score. The district judge also emphasized that Collins’s long-time gang affiliation,

his repeated instances of misconduct and violent behavior during previous periods

of confinement, and his overall pattern of criminal conduct since the age of 14

elevated his potential for recidivism beyond that reflected in his criminal history

category as calculated. Finally, the court reasoned that the guidelines did not

adequately take into account that Collins and his fellow bank robbers were violent

and extremely dangerous, and had so “terrorized” the bank employees and patrons

that they “will never forget that day.”

II.

Collins was sentenced before the Supreme Court decided United States v.

Booker, 125 S. Ct. 738 (2005). In this court he first argues that Booker compels

resentencing because his prison terms were increased, under a mandatory

guidelines system, based on facts neither admitted by him nor found by a jury

beyond a reasonable doubt. But Collins did not preserve this issue at sentencing, so

the relevant question is whether United States v. Paladino, 401 F.3d 471 (7th Cir.

2005), requires a limited remand. A remand under Paladino is necessary when we

cannot tell from the record whether the sentencing court would have imposed a

lower sentence had it known the guidelines were merely advisory. Id. at 483. But

because moving above the high end of the guidelines range is not mandated by the

guidelines and instead is the result of judicial discretion similar to that possessed

under an advisory scheme, United States v. Cunningham, 405 F.3d 497, 504

(7th Cir. 2005), the nature of the sentence in this case evidences that the district
No. 03-3886 Page 3

judge would have been unlikely to sentence lower under an advisory guidelines

scheme, see United States v. Johnson, 427 F.3d 423, 429 (7th Cir. 2005); United

States v. Stewart, 411 F.3d 825, 828-29 (7th Cir. 2005); Cunningham, 405 F.3d at

504; United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005). Although a sentence

above the guidelines range does not absolutely foreclose a Paladino remand, see

United States v. Long, 425 F.3d 482, 488-89 (7th Cir. 2005), here the judge carefully

considered the sentence increase, and we see nothing about this case that

distinguishes it from Johnson, Stewart, Cunningham, or Lee. A Paladino remand is

not necessary because we are not “left in a fog,” see Lee, 399 F.3d at 866, as to what

the district judge would have done with extra sentencing discretion.

Collins next argues that his prison sentences should be vacated because the

district judge, in fashioning the terms, relied on the probation officer’s factual

descriptions of his juvenile offenses rather than limiting his review to the statutory

elements of those prior adjudications. The judge found that Collins would have

qualified as a career offender if his juvenile adjudications had counted toward his

criminal history, but Collins argues that the district judge could not have made this

determination without looking at the factual descriptions of those juvenile crimes. 

To qualify as a career offender, a defendant must have at least two prior felony

convictions for either a crime of violence or controlled substance offense. U.S.S.G.

§ 4B1.1. In determining whether the defendant’s prior convictions qualify, courts

are limited to examining “‘the statutory definition, charging document, written plea

agreement, transcript of plea colloquy, and any explicit factual finding by the trial

judge to which the defendant assented.’” See United States v. McGee, 408 F.3d 966,

988 (7th Cir. 2005) (quoting Shepard v. United States, 125 S. Ct. 1254, 1257 (2005)). 

We have approved the use of a categorical approach in identifying crimes of

violence. United States v. Lewis, 405 F.3d 511, 513-14 (7th Cir. 2005). Here,

Collins committed “robbery” when he was 15 and “aggravated battery” when he was

17, and both of these offenses are categorically “crimes of violence.” U.S.S.G. §

4B1.2, cmt. n.1; see, e.g., United States v. Alvarenga-Silva, 324 F.3d 884, 886 (7th

Cir. 2001).

What remains is the reasonableness of the total term of imprisonment. Our

pre-Booker methods of analyzing a “departure” above the guidelines range are no

longer controlling. Johnson, 427 F.3d at 426. And though we have suggested that

one useful gauge of the overall reasonableness of a sentence is whether it would

have been sustained under our pre-Booker methodology, see United States v. CastroJuarez, 425 F.3d 430, 434 (7th Cir. 2005), we are not persuaded by Collins’s

argument that the prison terms as fashioned by the district court in this case could

not have been upheld as would upward departures before Booker. See United States

v. Croom, 50 F.3d 433, 435 (7th Cir. 1995) (though defendant was not career

criminal, juvenile offenses could be considered as pattern of recidivism to depart in

direction of career offender status).
No. 03-3886 Page 4

The district court recounted details of Collins’s bank robbery and concluded

that the incident was violent and terrifying for the customers and bank employees

who witnessed it. See 18 U.S.C. § 3553(a)(1), (a)(2)(a). The court reasoned that the

violent nature of the episode justified increasing Collins’s sentence beyond the

guidelines range because while the recommended sentence is premised on a bank

robbery in which no victim was physically injured, the calculated range did not

account for Collins’s dangerous behavior during the offense or the extent of the

psychological impact on the victims. The judge also considered Collins’s background

and justified the increase based on his prior gang affiliation, see 18 U.S.C.

§ 3553(a)(1); United States v. Melgar-Galvez, 161 F.3d 1122, 1124 (7th Cir. 1998),

his prior history of violence while in custody, and his overall pattern of criminal

behavior, see 18 U.S.C. § 3553(a)(2)(b)-(d); United States v. Peterson, 256 F.3d 612,

615 (7th Cir. 2001). The district judge recognized that Collins’s behavior pattern

increased the likelihood that he would continue to “commit further crimes in the

future,” and concluded that increasing the overall length of his imprisonment was

necessary to protect the public. See 18 U.S.C. § 3553(a)(2)(c). Accordingly, the

court adequately related its reasons for imposing a total term of imprisonment

above the guidelines range to factors specified in § 3553(a), see United States v.

Dean, 414 F.3d 725, 729 (7th Cir. 2005); Johnson, 427 F.3d at 426, and we are

convinced that the overall sentence is reasonable.

AFFIRMED.