NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued August 9, 2017

Decided August 24, 2017

Before

DANIEL A. MANION, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 17-1441

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHARLES HARPER,

Defendant-Appellant.

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division. 

No. 1:13-CR-00600-3

Samuel Der-Yeghiayan,

Judge.

O R D E R

Charles Harper pleaded guilty to attempted armed robbery. At sentencing he 

argued that he should serve his prison sentence for this conviction concurrently with a 

state prison sentence for a different armed robbery, but the district judge ordered that 

these sentences run consecutively. On appeal Harper contends that the judge did not 

adequately justify his sentence which, he says, effectively exceeded the range 

recommended by the Sentencing Guidelines. Because the district judge imposed a 

within-range sentence and sufficiently explained his reasons, we affirm. 
No. 17-1441 Page 2

Charles Harper made a career out of robbing jewelry stores. In 2011 he attempted 

to rob one such store in Chicago. After entering the store, he offered to sell jewelry to 

the store owner. When the owner began to walk toward the back to examine it, Harper 

leaped over the counter and drew his gun on the owner. Harper ripped off and 

pocketed the store owner’s necklace and then dragged him to the back of the store. 

Harper then rushed to the front of the store and, upon finding the front door locked, 

shot out a window and escaped. 

Harper had larger hauls from robbing other jewelry stores. In 2010 and 2011, he 

and his associates knocked off jewelry stores in Homer Glen, Illinois; Toledo, Ohio; and 

Orland Park, Illinois. One day after the Orland Park robbery, Harper was arrested. 

About 16 months later, in 2013, he pleaded guilty in the Circuit Court of Cook County 

to armed robbery for the hit on the Orland Park jewelry store and was sentenced to 

22 years’ imprisonment (though he was expected to be eligible for parole in 2022). 

In 2015 Harper was indicted by a federal grand jury for both the attempted 

robbery in Chicago and the other robberies that he carried out. He was charged in a 

third superseding indictment with conspiring to commit Hobbs Act robbery1 (for the 

robberies in Homer Glen and Toledo and the attempted robbery in Chicago), in 

violation of 18 U.S.C. § 1951(a) (counts one and two); attempting to commit Hobbs Act 

robbery (for the attempted robbery of the Chicago jewelry store) in violation of 

§ 1951(a) (count three); and using a firearm while committing a crime of violence (the 

attempted armed robbery in Chicago) in violation of 18 U.S.C. § 924(c)(1)(A) (count 

four). Harper spent 21 months in federal custody, during which time he “participated in 

a proffer interview” with the FBI (without agreeing to “formally cooperate with the 

government”) and pleaded guilty to the third and fourth counts. 

Roughly four months after Harper pleaded guilty, the parties agreed that the 

§ 924(c) offense in count four carried at least a 10-year sentence, to be served 

consecutively to any other sentence imposed, and that the advisory guidelines range for 

count three was 57–71 months (based on his offense level of 19 and criminal history 

category of V). 

 

1 Hobbs Act robbery is robbery that “in any way or degree obstructs, delays, or affects 

commerce or the movement of any article or commodity in commerce.” 18 U.S.C. 

§ 1951(a).
No. 17-1441 Page 3

The central issue at sentencing was whether Harper’s prison term for count three 

should run consecutively or concurrently to the prison term for his state court 

conviction. See 18 U.S.C. § 3584(a); U.S.S.G. § 5G1.3(d). In making this decision, the 

sentencing judge needed to consider the 18 U.S.C. § 3553(a) factors. See 18 U.S.C. 

§ 3584(b); United States v. Sandidge, 784 F.3d 1055, 1065 (7th Cir. 2015).

In his sentencing memorandum, Harper argued that he should serve his prison 

term for count three concurrently with his state term because he was “not as dangerous 

as his record would suggest.” He pointed to the statement of an FBI agent working on 

his case that he was not an “inherently violent individual.” And during all his 

robberies, he noted, he fired only a single gunshot—and that was aimed not at a person 

but at the window of the Chicago jewelry store. At the sentencing hearing, counsel 

added that Harper’s poor health—he was suffering from gout, severe gallstones, and an 

unspecified knee injury—made it unlikely that he would be a threat to society after 

15 years’ imprisonment (the remaining five years of his state term followed by ten years 

for count four), when he would then be roughly 58.

The government urged that the § 3553(a) factors supported Harper’s serving 

consecutive sentences. It emphasized the seriousness of Harper’s robberies—both those 

carried out and the one attempted—because he used guns to threaten his victims, stole 

valuable jewelry, and the Chicago heist in particular placed bystanders at risk because 

he shot out a window. Deterrence, the government added, had not stopped him from 

living a life of crime,2 and a consecutive prison term would better protect the public 

from his criminal activity. Lastly the government asserted that a consecutive term 

would ensure that his sentence reflected the seriousness of his crime, lest he receive a 

“pass” for the attempted armed robbery conviction. 

The district judge imposed a prison term of 60 months on count three and a term 

of 120 months on count four, both to run consecutively to one another and to his state 

prison term, as well as three years’ supervised release. The judge justified this sentence 

by emphasizing Harper’s extensive criminal history, the seriousness of his attempted 

 

2 Harper was arrested 27 times as a juvenile and 40 times as an adult and convicted of 

the following crimes: armed robbery, theft (four times), burglary, attempted burglary, 

unlawful use of a firearm (twice), assault, animal cruelty, drug dealing, and receiving 

and possessing a stolen car. 
No. 17-1441 Page 4

robbery of the Chicago jewelry store, and the need to protect the public from him and to 

deter Hobbs Act robbery. In explaining his reasons for ordering that the prison term for 

count three run consecutively to the state prison term, the judge stated “There’s not 

sufficient justification based on the record to impose a concurrent sentence.” 

On appeal Harper raises three challenges to the district court’s imposition of a 

consecutive, rather than concurrent, 60-month prison term on count three. First he 

contends that the district court did not adequately justify this term of imprisonment 

which, he says, extends his sentence roughly five years above the guidelines range of

177–191 months. Harper arrives at this estimation by adding the 68 months left on his 

state sentence to the 60-month prison term on count three and the 120-month term on 

count four.

Harper misapprehends how the guidelines affect his sentence. His 60-month 

prison term on count three falls within the guidelines range of 57–71 months for this 

conviction. Harper acknowledged in his sentencing memorandum that this range 

reflected the guidelines’ recommended sentence. The district judge had the discretion to 

impose this term consecutively to the state court sentence. See 18 U.S.C. § 3584(a);

U.S.S.G. § 5G1.3(d); United States v. Orozco-Sanchez, 814 F.3d 844, 850–51 (7th Cir. 2016); 

United States v. Roman-Diaz, 853 F.3d 591, 597–98 (1st Cir. 2017). The guidelines

recommend that a defendant receive a federal prison sentence concurrent to an 

undischarged or anticipated state prison term when a state offense is relevant conduct 

for a federal offense, see U.S.S.G. § 5G1.3(b), (c), United States v. Schrode, 839 F.3d 545, 

550–51 (7th Cir. 2016), but the Orland Park robbery was not relevant conduct for the 

Chicago attempted robbery. See Orozco-Sanchez, 814 F.3d at 850–51; Roman-Diaz, 853 

F.3d at 598. 

Moreover the district judge, as directed by 18 U.S.C. § 3584(b), justified his ruling 

with reference to the § 3553(a) factors. Regarding Harper’s history and characteristics, 
No. 17-1441 Page 5

the judge catalogued his extensive criminal history3 and noted his difficult childhood.4

Regarding the need for the sentence to reflect the seriousness of the offense, the judge 

emphasized that Harper placed bystanders “at great risk” by firing his gun during the 

Chicago holdup. The judge added that Harper and others needed to be deterred from 

committing armed robberies, and the public needed to be protected from him (as 

reflected in the Chicago attempted robbery when he shot his gun). And to the extent 

that Harper needed medical care after getting treatment in state prison, the judge noted 

that he could receive it in federal prison. 

Second, Harper argues that the court, in imposing the consecutive sentence, 

failed to consider one of the application notes to U.S.S.G. § 5G1.3 that addresses alleged 

sentencing disparities created by fortuities in the timing of federal and state 

prosecutions. He cites application note 4(E), which states that a downward departure 

from a guidelines range may be appropriate in an “extraordinary case,” such as when 

the sequence of separate prosecutions for crimes that have overlapping partially 

relevant conduct extends the length of a defendant’s time in prison. See U.S.S.G. § 5G1.3 

cmt.4(E). In Harper’s view, had he been convicted in state court of both the Orland Park 

armed robbery and the Chicago attempted armed robbery, then “concurrent sentencing 

would have been mandatory.” He adds that, had he been sentenced in federal court for 

the Chicago attempted armed robbery before being sentenced in state court for the 

Orland Park robbery, concurrent sentencing also would have been mandatory. 

This case, however, is not “extraordinary.” According to the example in 

application note 4(E), an “extraordinary case” can involve a defendant who already has 

served substantial time in prison for an offense encompassing the same partially 

relevant conduct as the instant offense. See U.S.S.G. § 5G1.3 cmt.4(E). But Harper’s 

robberies of the Chicago and Orland Park jewelry stores do not have overlapping 

partially relevant conduct because they were different heists involving different victims 

 

3 The judge pointed to Harper’s “prior convictions and arrests for receiving, possessing, 

and selling a stolen vehicle, burglary, disorderly conduct, criminal trespass, attempted 

possession of a controlled substance, attempted possession of cannabis, assault, cruelty 

to animals, owning animals for sport fighting, being a felon in possession of a firearm, 

unlawful use of a weapon and possession of cannabis.” 

4 Harper grew up in the Cabrini Green housing projects, and both of his parents used 

drugs, which made money “always tight” and resulted in he and his siblings often not 

having “proper clothing, shoes, or school supplies.”
No. 17-1441 Page 6

that occurred more than one month apart. Further, he has not identified anything 

extraordinary about his case. As a final matter, he overlooks the discretion afforded to 

Illinois sentencing judges to impose consecutive prison terms, if necessary to protect 

public safety. See 730 ILCS 5/5-8-4(c)(1). See also, e.g., People v. Johnson, 43 N.E.3d 1253, 

1257 (Ill. App. Ct. 2015). 

Third, Harper contends that the district judge ignored his argument that upon 

leaving prison, his advanced age (he would be about 58) would make it unlikely that he 

would recidivate. The district judge indeed said little at sentencing, but he did say 

enough when he acknowledged that he had “considered the defendant’s age.” 

Finally, Harper urges that the proceedings be remanded so that the district court 

could consider a sentencing argument that he “erroneously withdr[ew] as moot.” He 

refers to his supposed eligibility for a downward departure based on the time he spent 

in federal custody between 2015 and 2017; this eligibility, he says, was the basis for an 

argument that he did not press at sentencing because the concurrent sentence he sought 

would have rendered the matter moot. He contends that the district court committed 

procedural error by not addressing this argument. 

The district court did not err because Harper never raised this argument in the 

district court. He did not mention any such argument in his sentencing memorandum 

or at the sentencing hearing. As Harper notes, his attorney at sentencing thought it 

“moot” whether Harper received a downward departure for his time in federal custody 

if he received “a guideline sentence on Count 3 and assuming that it’s concurrent.” The 

court permissibly did not comment upon this statement, which merely was an 

observation rather than a mitigation argument that the district court needed to discuss. 

See United States v. Donelli, 747 F.3d 936, 940 (7th Cir. 2014).

AFFIRMED.