## In the 

# United States Court of Appeals
For the Seventh Circuit

____________
No. 04-1916
U NITED STATES OF A MERICA , Plaintiff-Appellee

, v. C RISS E. D UNCAN , Defendant-Appellant

.

____________ Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 03 CR 57— Allen Sharp

, Judge

.

____________ A RGUED F EBRUARY 25, 2005—D ECIDED J ULY 1, 2005

____________

Before B AUER , P OSNER and R IPPLE , Circuit Judges

. R IPPLE , Circuit Judge . After a jury trial, Criss Duncan was convicted of the following o ffenses: armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); use of a firearm during and in relation to that bank robbery, in violation of 18 U.S.C. § 924(c); aiding and abetting the malicious damage by fire to a vehicle, in violation of 18 U.S.C. §§ 844(i) and 2; and possessing a firearm despite being a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Duncan appeals his sentence. For the reasons set forth in the following2 No. 04-1916

1 “Machine gun” is defined under 18 U.S.C. § 921(23), by reference to 26 U.S.C. § 5845(b), as “any weapon that shoots, is (continued...) opinion, while retaining juri sdiction, we order a limited remand of this case to the district court as required by United States v. Paladino , 401 F.3d 471 (7th Cir. 2005).

I
BACKGROUND
A. Facts We shall set forth only those facts germane to Mr. Duncan’s present challenge to his sentence. On May 27, 2003, he and his co-defendant Ralph Berkey, each armed with an assault-type rifle, robbed the National City Bank located in Leesburg, Indiana. At Mr. Duncan’s trial, Berkey testified that the firearms that they had used during the robbery had been modified to be fully automatic. R.126 at 25, 41-42. In addition, Larry Jo e Ellis testified that, prior to the robbery, he had worked for Be rkey to make several firearms fully automatic. Id . at 22-24. According to Ellis, after the robbery, Mr. Duncan and Berkey left Mr. Duncan’s Mazda truck on Ellis’ property, and Berkey told him to “[w]ipe the fingerprints off the guns. Take care of them for me.” Id . at 22. Ellis found two fu lly automatic firearms in the truck, and he converted th em back to semi-automatic.

The presentence report prepared in Mr. Duncan’s case recommended, with respect to the charge of using a firearm during and in relation to the bank robbery, that the firearms used by Mr. Duncan and Berkey be categorized as machine guns. 1 This classification had important conse-No. 04-1916 3

1 (...continued) designed to shoot, or can be rea dily restored to shoot, automatically more than one shot, withou t manual reloading, by a single function of the trigger.”

2 Title 18 section 924(c)(1) provides in part: (A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possess a firearm, shall, in addition to the punishment provided for such crime of violence . . . — (i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. (B) If the firearm possessed by a person convicted of a violation of this subsection— (i) is a short-barreled rifle, short-barreled shotgun, orsemiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or (ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years. 18 U.S.C. § 924(c)(1)(A)-(B). quences for Mr. Duncan: For violations of 18 U.S.C. § 924(c)(1)(A), the statutory mi nimum sentence for a semiautomatic firearm is ten years, id. § 924(c)(1)(B)(i); the minimum for a machine gun is thirty years, id . § 924(c)(1)(B)(ii). 2 Moreover, this minimum prison term is “in addition to the4 No. 04-1916
punishment provided for” the underlying crime of violence, here the armed bank robbery. Id . § 924(c)(1)(A). Mr. Duncan maintained that no actual proof was established at trial that the firearms were in fact fully automatic.

B. District Court Proceedings

Over Mr. Duncan’s objection, the district court found thatthe testimony of Berkey and Ellis established, by a preponderance of the evidence, that the firearms used in theNational City Bank robbery qualified as machine guns. Under the law prevailing at the time of sentencing, this finding required the district court to se ntence Mr. Duncan to at least thirty years in prison on the firearms count. See id

. § 924(c)(1)(B)(ii); see also U.S.S.G. § 2K2.4 (the federal guidelines sentence for violations of § 924(c)(1) is the statutory minimum).

The guidelines sentencing range for Mr. Duncan’s remaining convictions was 97 to 121 months. The final guidelines range was 457 to 481 mo nths. The district court imposed a sentence of 457 mo nths’ imprisonment, stating: In my thirty plus years as a federal judge, because of the mandatory thirty years for using a machinegun, this is without a doubt the longest sentence this Court has given for a bank robbery. A sentence at the low end of the range still places him in federal custody for almost forty years, and seems more than adequate.
R.133 at 14.No. 04-1916 5

II
DISCUSSION
A. Standard of Review
Mr. Duncan contends that his sentence violates his Sixth Amendment rights as interpreted by the Supreme Court in United States v. Booker , 125 S. Ct. 738 (2005), and in Blakely v. Washington, 124 S. Ct. 2531 (2004). Specifically, he claims that he is entitled to resentencing because his sentence relies in part upon the district court’s finding as to what type of firearm he used during the ro bbery of National City Bank, a fact that was not proven to a jury beyond a reasonable doubt nor admitted by him. Because Mr. Duncan did not challenge the constitutionality of his sentence before the district court, our review is for plain error. Paladino , 401 F.3d at 481.

The plain error standard allows an appellate court to “correct an error that the defendant failed to raise below only when there was (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Henningsen , 402 F.3d 748, 751 (7th Cir. 2005) (citing United States v. Olano , 507 U.S. 725, 732 (1993)); see also Fed. R. Crim. P. 52(b). “If these conditions are met, an appellate co urt may exercise its discretion to notice a forfeited error if (4 ) the error seriously affects the fairness, integrity, or public reputation of the proceedings.” Id . (citing Olano , 507 U.S. at 732).

B. Sentence
1.

With respect to Mr. Duncan’s contention that Booker and Blakely require the vacation of his sentence because it is based on a mandatory mini mum sentence, the Supreme6 No. 04-1916

3 The other courts of appeals to have addressed this issue have concluded that Booker does not apply to statutory mandatory minimum sentences. See

, e.g. , United States v. Bermudez , 407 F.3d 536, 545 (1st Cir. 2005); United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005); United States v. Childs, 403 F.3d 970, 972 (8th Cir. 2005); United States v. Moore , 401 F.3d 1220, 1222 n.1 (10th Cir. 2005); United States v. Rojas-Coria , 401 F.3d 871, 874 n.4 (8th Cir. 2005); United States v. Groce , 398 F.3d 679, 682 n.2 (4th Cir. 2005); United States v. Shelton , 400 F.3d 1325, 1333 n.10 (11th Cir. 2005); United States v. Sanchez , No. 03-4760, 2005 WL 419464, at *2 n.2 (3d Cir. Feb. 23, 2005) (unpublished); United States v. Sharpley, 399 F.3d 123, 127 (2d Cir. 2005); United States v. Joiner , No. 03-5397, 2005 WL 351152, at *1 (6th Cir. Feb. 14, 2005) (unpublished). Court’s decision in Harris v. United States, 536 U.S. 545 (2002), controls. In Harris, the Court stated that McMillan v. Pennsylvania , 477 U.S. 79 (1986), in which it upheld a state statute that mandated minimum sentences based upon judicial fact-finding, could co-exist with the logical implications of the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), that “ ‘[o]ther th an a fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximu m . . . must be submitted to a jury, and proved beyond a reasonable doubt.’ ” Harris, 536 U.S. at 550, 566-67 (quoting Apprendi , 530 U.S. at 490).

Contrary to Mr. Duncan’s submission, nothing in Booker

or Blakely suggests that the Court reconsidered, much less overruled, its holding in Harris

. See United States v. Lee , 399 F.3d 864, 866 (7th Cir. 2005) (noting that Booker does not give sentencing courts any discreti on to disregard a statutory mandatory minimum). 3 Put simply, Booker and Blakely do not affect the imposition of statutory minimum sentences.No. 04-1916 7
Moreover, even if the logic and spirit of those decisions could be interpreted to have eroded the Court’s previous rationale for permitting ma ndatory minimum sentences based on judicial fact-finding, it certainly is not our role as an intermediate appellate court to overrule a decision of the Supreme Court or even to anticipate such an overruling by the Court. See Roper v. Simmons , 125 S. Ct. 1183, 1209 (2005) (“[I]t remains this Court’s prerogative alone to overrule one of its precedents . . . . That is so even where subsequent decisions or factual develo pments may appear to have significantly undermined th e rationale for our earlier holding.” (emphasis in origin al, internal quotation marks and citations omitted)); State Oil Co. v. Khan , 522 U.S. 3, 20 (1997) (“The Court of Appeals was correct in applying that principle despite disagreement with Albrecht [ v. Herald Co.

, 390 U.S. 145 (1968)], for it is th is Court’s prerogative alone to overrule one of its precedents.” (citing Khan v. State Oil Co. , 93 F.3d 1358 (7th Cir. 1996))); Rodriguez de Quijas v. Shearson/American Express, Inc. , 490 U.S. 477, 484 (1989) (“[I]f a precedent of this Court has di rect application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”).

2.Mr. Duncan’s sentence nevertheless requires our intervention. The district court imposed his sentence prior to Booker and, understandably, believed itself bound by the federal sentencing guidelines. Our ca ses hold that, in light of Booker

, such a misapprehension can amount to plain error. See

, e.g. , United States v. Castillo , 406 F.3d 806, 823 (7th Cir. 2005) (concluding that mandatory a pplication of the guidelines8 No. 04-1916
itself, absent any Sixth Amen dment violation, constitutes error (citing United States v. White , 406 F.3d 827, 835 (7th Cir. 2005))); Paladino , 401 F.3d at 480; see also Booker , 125 S. Ct. at 767 (rendering the guidelines effectively advisory, and not mandatory). If Mr. Duncan were to be resentenced, the district court still would have no discretion to sentence him on the firearm offense to less than the statutory thirty-year minimum. However, this sentence runs consecutively to the sentence imposed because of Mr. Duncan’s other offenses. See 18 U.S.C. § 924(c)(1)(B). This latter component of his sentence is not tied to a statutory minimum. Thus, Booker would afford the district court some additional discretion with respect to Mr. Duncan’s total punishment. The district courtchose a sentence at the lowest end of the applicable guidelines range and expressed the concern that, [i]n my thirty plus years as a federal judge, because of the mandatory thirty years for using a machinegun, this is without a doubt the longest sentence this Court has given for a bank robbery. A sentence at the low end of the range still places him in federal custody for almost forty years, and seems more than adequate. R.133 at 14. This statement suggests that the district court, even though still bound by the statutory minimum, may well have imposed a lighter tota l sentence if it had not believed that it was bound by the sentencing guidelines to impose the sentence that it did impose. We cannot know this, however. To enable us to complete our plain error analysis, a limited remand to the district court, in accordance with the procedure outlined in this court’s decision in Paladino , 401 F.3d at 483-84, is appropriate.No. 04-1916 9

Conclusion Accordingly, while retaining jurisdiction, we remand this case to the district court for proceedings consistent with this opinion.

I T I S S O O RDERED
A true Copy:
Teste:

_____________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-1-05