Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:09-cr-00116-SEB-KPF-1-Sarah Evans Barker, Judge.
The opinion of the court was delivered by: Flaum, Circuit Judge.
Before FLAUM and SYKES, Circuit Judges, and CONLEY, District Judge.*fn1
Brook Abebe pled guilty to armed bank robbery, discharge of a firearm during a crime of violence, and unlawful possession of a firearm by a convicted felon. He contends that the district court committed a procedural error in setting his sentence and that his above-guideline sentence is substantively unreasonable. We disagree and affirm the district court's judgment.
Abebe robbed a Chase Bank in Indianapolis, Indiana, while armed with a .38-caliber handgun and a rifle pellet gun. During the robbery, he ordered bank employees and customers at gun point to lie on the floor and threatened to kill them if they did not comply. Abebe stole over $9,000 from the bank and discharged his handgun twice in the process, the first time inside the bank when he fired a round into the bank's ceiling, the second outside the bank when he shot a bystander in the face while leaving the scene. (The bystander survived with serious injuries.) Abebe then hopped into his getaway car, but drove only one-half mile or so from the bank before he crashed into a ditch and was subsequently arrested. Law enforcement officials recovered Abebe's handgun in the getaway car. Notably, Abebe had four prior felony convictions at the time he robbed the bank.
Abebe was indicted on three charges: armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d) (Count One); discharge of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Two); and unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count Three). He pled guilty without a plea agreement to all three counts.
At Abebe's sentencing hearing, the district court calculated a guideline range of 84 to 105 months of imprisonment on Counts One and Three, noted that Count Three had a maximum sentence of 120 months of imprisonment, and found Abebe subject to a mandatory minimum sentence of 120 months of imprisonment on Count Two, to run consecutively to Counts One and Three. After hearing arguments from both sides, the district court considered the factors in § 3553(a) and sentenced Abebe to 300 months' imprisonment, consisting of 180 months on Count One, a concurrent sentence of 120 months on Count Three, and a consecutive sentence of 120 months on Count Two. It also ordered Abebe to pay restitution and imposed five years of supervised release on Counts One and Two and three years of supervised release on Count Three, to run concurrently.
Abebe directly appeals, arguing that the district court procedurally erred in setting his sentence and that his above-guideline sentence is substantively unreasonable. We discuss each argument in turn.
Abebe claims that the district court erroneously focused on reasonableness when setting his sentence, instead of on imposing a sentence "sufficient, but not greater than necessary," to comply with the factors in § 3553(a)(2). 18 U.S.C. § 3553(a). We review de novo whether the district court followed proper procedures at sentencing. United States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010); United States v. Coopman, 602 F.3d 814, 817 (7th Cir. 2010).
Section 3553(a) provides that sentencing courts "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph
(2) of this subsection," and then lists a number of factors that the courts "shall consider." 18 U.S.C. § 3553(a). But courts are not required to expressly refer to that provision at sentencing. See United States v. Tyra, 454 F.3d 686, 687-88 (7th Cir. 2006)(rejecting a defendant's argument that the district court committed a procedural error because, he claimed, it was not clear that the district court concluded that his sentence was "sufficient, but not greater than necessary," to comply with the goals in § 3553(a), and explaining that "district courts need not recite any magic words at sentencing to assure us that the correct standard is being used"). Rather, they must " '(1) ...