Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 CR 505 -- Charles P. Kocoras, Judge.
Before CUMMINGS, EASTERBROOK, and KANNE, Circuit Judges.
Kevin Gordon got his fifteen minutes of fame by robbing nine banks in the Chicago area. As a result of his chosen path to celebrity, he is now serving a 387-month sentence in a federal penitentiary. He does not contest his conviction (he pled guilty), but he appeals his sentence on various grounds.
Kevin Gordon was the "15-second bank robber." He got that name because he typically gave tellers whom he was robbing fifteen seconds to hand over money, under implied threat of death. Between February and July 1993, Gordon robbed eight banks in the Chicago area. Seven banks he robbed with a gun; one bank he robbed while pretending he had a gun. Nobody was hurt during the eight robberies. Gordon netted over $100,000 from his robberies, and he proceeded to go on a spending spree. He bought a BMW, jewelry for his wife, and, planning for the long term, began remodeling his home.
On July 17, 1993, Gordon robbed the NBD Bank in Woodridge, Illinois. He showed the tellers a small handgun (a Smith & Wesson .38 caliber revolver) and ordered them to fill up a bag with money, which they did. Gordon then drove away in his BMW, but the bank president drove after him and called the police on his car phone. Gordon led police on a high-speed chase on I-55, eventually leaving the highway by going the wrong way on an entrance ramp and ditching his car on a nearby golf course, where police captured him.
After a hearing, on July 19, 1993, a magistrate judge unfortunately released Gordon on $150,000 bond, secured by the deed to his grandmother's home. The release order included monitoring through an electronic anklet. In October 1993, a grand jury indicted Gordon for robbing the eight banks and for using a firearm in connection with a crime of violence. Gordon continued to be free on bond. On December 2, Gordon and the government tentatively agreed to enter into a plea bargain.
Gordon, however, did not let his bond, electronic anklet, or the impending plea bargain cramp his style. On December 16, 1993, he obtained permission to attend an appeal hearing concerning a denied unemployment compensation claim. He attended the hearing, but on his way home he went to the Beverly Bank on South Western Avenue in Chicago, still wearing his electronic anklet. He held a metal pipe to give the impression that he had a gun, and he ordered the teller to "give me all your money."
This time, however, Gordon was not so lucky. An armed bank security guard confronted him. The government says the guard grabbed Gordon from behind, placed the gun against his back and said "Don't struggle or you will be shot." Gordon did not comply and instead tried to elbow the guard and wrestle with him -- so the guard shot him. Gordon says that he surrendered immediately when the guard told him to but the guard shot him anyway. Regardless, Gordon was hospitalized with arm and abdomen wounds. The district court revoked his bond, and the government added an additional count of bank robbery to the indictment. On March 31, 1994, Gordon pleaded guilty to all ten counts. After a sentencing hearing, the district court sentenced Gordon to 387 months in prison.
A. Upward Adjustment for Discharge of a Firearm
The district court sentenced Gordon pursuant to U.S.S.G. sec. 2B3.1, applicable to robbery. As to the Beverly Bank robbery, the district court gave Gordon a seven-level upward adjustment under sec. 2B3.1(b)(2)(A), which lists specific offense characteristics of robbery. That section reads, "If a firearm was discharged, increase by 7 levels." *fn1 The district court reasoned that the language of sec. 2B3.1(b)(2)(A) covered the situation: a firearm was discharged as a proximate result of Gordon's conduct, so Gordon got the increase. We ...