Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division No. 06 CR 75-Sarah Evans Barker, Judge.
The opinion of the court was delivered by: Flaum, Circuit Judge
Before BAUER, FLAUM, and KANNE, Circuit Judges.
Defendant Melvin Spells was convicted by a jury on three counts stemming from a robbery of a Papa Johns Pizza restaurant. While Spells challenges the sufficiency of the evidence on appeal, the main thrust of this appeal involves Spells's sentencing. The district court, in sentencing Spells, found that he was an armed career criminal under 18 U.S.C. § 924(e)(1), based on what it deemed to be prior "violent felonies," as well as a career offender under U.S.S.G. § 4B1.1. Spells was then sentenced to 346 months' imprisonment-262 months, concurrent, on Counts 1 and 3, with a consecutive sentence of 84 months on Count 2. In addition to challenging the sufficiency of the evidence, Spells appeals the court's findings that he was an armed career criminal and a career offender, as well its imposition of a 262 month sentence on Count 1, when the statutory maximum sentence on that Count was 240 months. For the following reasons, we affirm the district court's judgment on all grounds, except for the 262 month sentence on Count 1, and order a limited remand for the district court to correct this error.
On May 9, 2006, a three count indictment was filed against Spells with respect to an alleged robbery of a Papa Johns Pizza on June 13, 2005. The indictment charged Spells with: (1) robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a); (2) brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and (3) being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). A two day jury trial then commenced on September 25, 2006.
At trial, the jury heard testimony from Larry Jenkins, the employee working at Papa Johns on the day of the robbery. Jenkins testified that at 5:00 PM, a customer came in, wearing a blue shirt and baseball cap, and started talking about sports with him for at least five minutes before ordering a Coke. Jenkins placed the customer's money in the register and then, when he lifted his head, found that the customer was pointing a black handgun at his chest. The customer demanded the money from the register, but was not satisfied with what Jenkins proceeded to give him. The customer, after demanding more money, put his gun down and reached into the drawer himself. Then the customer ran out the door into a brown colored van, at which point Jenkins called the police. At trial, Jenkins identified the customer as Spells.
A second Papa Johns employee, Gregory Fleetwood, was also present during the robbery and testified at Spells's trial. At the time of the robbery, Fleetwood was approximately fifteen feet from the counter, cutting pizzas. Fleetwood's testimony largely corroborated Jenkins account of the events and description of the robber, although Fleetwood believed the gun was silver in color and recalled the entire time the robber was in the restaurant as lasting only about two minutes.
Deputy Paul Ziliak then testified that after hearing a dispatch about the robbery, he spotted a brown van in the parking lot of the strip mall where the robbery occurred and activated his lights and siren. The driver of the van, who Deputy Ziliak identified at trial as Spells, did not stop the van, but instead exited the vehicle shirtless while it was still moving, and was almost struck by the Deputy's squad car as he ran away. John Mark Archer, a canine officer, testified to receiving a dispatch put out by Ziliak when Spells had fled the van, and apprehending Spells shortly thereafter. Ziliak then testified to what was found in the van-a shirt matching the description given by Jenkins and $107 in cash. Later that evening, when Detective Scott Scheid searched the van, he testified that he found a loaded 9 millimeter handgun underneath the floor mat between the two front seats and live rounds of ammunition in the vehicle.
On the second day of trial, the jury unanimously found Spells guilty on all three counts. The case then proceeded to sentencing on January 17, 2007. The Presentence Investigation Report ("PSR") and accompanying sentencing recommendation advised that Spells be sentenced to 362 months' imprisonment. As is relevant to this appeal, the PSR placed Spells's statutory minimum sentence under Count 3 (felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)) at 15 years, see 18 U.S.C. § 924(e)(1), rather than a statutory maximum sentence of 10 years, see 18 U.S.C. § 924(a)(2), on the basis of what it deemed to be three prior violent felony convictions under the Armed Career Criminals Act. According to the PSR, these prior convictions also translated to sentencing enhancements under the Guidelines. The PSR recommended that Spells's offense level be increased from 24 to 32 because, by having at least two prior violent felony convictions, he was a "career offender" under U.S.S.G. § 4B1.1. Additionally, the PSR's determination that Spells was an "armed career criminal" resulted in Spells's offense level being increased to 34, under U.S.S.G. § 4B1.4. Spells's designation as a career offender and armed career criminal also resulted in his criminal history category being placed at VI.
The three prior offenses deemed to be violent felonies in the PSR had been prosecuted in Indiana state court in 2001. The first conviction was for Resisting Law Enforcement, a Class D felony. The PSR relied upon a probable cause affidavit in order to provide details of the crime-that Spells sped away from law enforcement after he was spotted driving without a safety belt and was apprehended after he left the vehicle on foot. Both of the other felonies were robbery convictions prosecuted jointly. One of the robberies occurred on March 26, 2001, and the other occurred on April 10, 2001.
At the sentencing hearing, Spells raised two objections to the PSR. He first objected to his designation as an "armed career criminal," claiming there was no grand jury determination as to whether his prior convictions arose from separate occasions under 18 U.S.C. § 924(e), but this objection was overruled by the court. Spells's second objection involved a point of clarification on the resisting law enforcement conviction, and was dropped by Defendant based on the probation officer's response. Having quickly dismissed Spells's objections, the district court then, with respect to the Guidelines, "adopt[ed] [the PSR's] formulation as [his] own." The court then went on to explain why Spells's criminal history and total offense level under the Guidelines had been raised. The court detailed that Spells's criminal history category was increased from IV to VI based on his designation as a "career offender" and an "armed career criminal." When discussing the "career offender" designation, the district court asked Spells if he understood what that designation meant and if that had been discussed with his attorney, to which Spells responded, "Yes." Similarly, when discussing Spells's designation as an "armed career criminal," the district court stated to Spells, "So it's because of your serious prior convictions that you've wound up in this very high criminal history category. Do you understand that?" Spells responded, "Yes." The court then proceeded to look at the § 3553(a) sentencing factors, and ultimately sentenced Spells to a within Guidelines sentence of 262 months, concurrent on Counts 1 and 3, and 84 months on Count 2, running consecutively. This brought Spells's total sentence to 346 months.
The next week, Spells filed a Motion to Correct Sentence. In the motion, he argued that the district court had erred in sentencing him to 262 months, concurrent on Counts 1 and 3, when the statutory maximum sentence for Count 1 under 18 U.S.C. § 1951(a) was 20 years, or 240 months. The district court denied the motion, adopting the Govern-ment's reasoning in its response, which, referencing U.S.S.G. § 5G1.2(d), claimed that no sentencing error had occurred because Counts 1 and 3 were imposed consecutively. This appeal followed.
The focus of Spells's appeal concerns his sentence, where he makes the following claims: (1) that the district court improperly characterized his prior conviction for resisting law enforcement as a "violent felony" for purposes of the Armed Career Criminal Act; (2) that he was improperly designated a "career offender" because his two prior robbery convictions should only be counted as one conviction under U.S.S.G. § 4A1.2; and (3) that the district court erred in sentencing him to a sentence exceeding the statutory maximum on Count 1. Before addressing these sentencing issues, however, we first turn our attention to Spells's challenge to the sufficiency of the evidence.
A. Sufficiency of the Evidence
Spells faces a " 'nearly insurmountable' hurdle" in challenging the sufficiency of the evidence for his conviction. United States v. Jong Hi Bek, 493 F.3d 790, 798 (7th Cir. 2007) (quoting United States v. Orozco-Vasquez, 469 F.3d 1101, 1106 (7th Cir. 2006)). This is because, in order to succeed on this claim, Spells must show that "after viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Stevens, 453 F.3d 963, 965 (7th Cir. 2006) (quoting United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003)). In conducting this review, we will not "weigh the evidence or second-guess the jury's credibility determinations." Id. (quoting United States v. Gardner, 238 F.3d 878, 879 (7th Cir. 2001)).
In appealing this issue, Spells briefly mentions the disparity between Jenkins's and Fleetwood's testimony concerning the length of time the "customer" was in the restaurant, whether a conversation between Jenkins and the "customer" preceded the robbery, and a dispute as to whether the gun was black or silver. The central piece of evidence, however, on which Spells rests his claim, is that in the top front of his mouth, he sports six permanent gold teeth. Spells points out that Jenkins made no mention of this distinctive feature during either his initial report of the robbery or at trial, and argues that this fact, when coupled with other contradictions in Jenkins's testimony, undermines his eye-witness identification of Spells. Despite its creativity, this "gold tooth" theory fails, since it ultimately does little more than ask this Court to revisit the jury's credibility determinations regarding Jenkins's testimony, something this Court will not do. Furthermore, the Government's case ...