In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-1916

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CRISS E. DUNCAN,

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.

____________

ARGUED FEBRUARY 25, 2005—DECIDED JULY 1, 2005

____________

Before BAUER, POSNER and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge. After a jury trial, Criss Duncan was

convicted of the following offenses: 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 following
2 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 jurisdiction, 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 Joe Ellis testified that, prior to

the robbery, he had worked for Berkey 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 fully automatic firearms in

the truck, and he converted them 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 readily restored to shoot, automatically more than one shot, without 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, or

semiautomatic 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 minimum 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 the
4 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 that

the testimony of Berkey and Ellis established, by a preponderance of the evidence, that the firearms used in the

National City Bank robbery qualified as machine guns. Under the law prevailing at the time of sentencing, this finding

required the district court to sentence 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 months. The district court

imposed a sentence of 457 months’ 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 robbery 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 court 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 minimum sentence, the Supreme
6 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 than a fact of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum . . . 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 discretion 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 mandatory 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 developments may appear to have

significantly undermined the rationale for our earlier

holding.” (emphasis in original, 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 this 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 direct 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 cases 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 application of the guidelines
8 No. 04-1916

itself, absent any Sixth Amendment 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 court

chose 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 total 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.

IT IS SO ORDERED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-1-05