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District court to reconsider convicted robber’s sentence

December 26, 2017

A man convicted in federal court of two armed robberies will get a chance at a more lenient sentence after the 7th Circuit Court of Appeals determined recent U.S. Supreme Court precedent warranted review of the sentence previously imposed on the man.

In United States of America v. Robert E. Fox, 16-2892, Robert Fox was indicted under the Hobbs Act for two southern Indiana robberies. He was appointed counsel because he was indigent, but had some conflict with that counsel.

Thus, at his final pre-trial conference, Fox requested a continuance on the grounds that he was speaking with a potential new attorney, but reversed that request just five days later. However, on the morning his trial was set to begin, Fox once again requested a continuance because he was attempting to retain private counsel. His uncle testified the family was trying to get enough money to hire the attorney, but the district court denied his request, concluding there was no indication the private attorney would actually make an appearance.

The trial then proceeded, and a jury found Fox guilty as charged of the robberies and of using a firearm in connection with crimes of violence. The court sentenced Fox to 435 months in prison, imposing mandatory consecutive sentences for the use of a firearm.

Fox appealed, first challenging the denial of his motion to continue on the morning of trial. The 7th Circuit Court of Appeals upheld that denial on Friday, with Judge Daniel Manion pointing to precedent from United States v. Sinclair, 770 F.3d 1148 (7th. Cir. 2014) as support.

Similar to the circumstances in Sinclair, Fox sought a continuance on the day his trial was set to begin, but had not yet actually retained private counsel, Manion said. Instead, Fox’s family was trying to gather enough funds, while his appointed counsel testified that the prospective private counsel said he had no plans to appear on Fox’s behalf.  

“We conclude that the district court was well within its discretion to deny Fox’s last-minute motion for a continuance,” Manion wrote. “The judge properly weighed the reasons for and against granting relief and reasonably concluded that a continuance was not warranted.”

Fox also raised two conviction-related issues before the 7th Circuit, but only to preserve them for U.S. Supreme Court review. Specifically, he argued his indictment was insufficient, and that Hobbs Act robberies are not crimes of violence. Fox conceded those issues are precluded by precedent in United States v. Cardena, 842 F.3d 959, 1000 (7th Cir. 2016) and United States v. Angling, 846 F.3d 954, 965 (7th Cir. 2017), respectively, and the 7th Circuit upheld his convictions under those decisions.

However, the court remanded Fox’s case for resentencing under Dean v. United States, 137 S. Ct. 1170 (2017). That decision allowed the district court to consider a mandatory add-on to Fox’s sentence for the two robberies when deciding his sentence, which could result in a less severe sentence, Manion said.

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