A Hoosier man caught after leading a string of armed robberies in the Midwest could not convince the 7th Circuit Court of Appeals that both his conviction and sentence should be overturned and vacated.
During a three-week crime spree in October 2017, Rex Hammond robbed and attempted to rob seven different stores at gunpoint in Northern Indiana and Southern Michigan. In Indiana, the robberies took place in Logansport, Peru, and Auburn, while the attempted Michigan robberies occurred in Portage and Kalamazoo.
The government charged Hammond with five counts of Hobbs Act robbery and several attendant weapons charges, which included one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and two counts of brandishing a weapon during a crime of violence in violation of 18 U.S.C. § 924(c).
A jury convicted Hammond on all charges and the U.S. District Court for the Northern District of Indiana sentenced him to 47 years in prison, prompting Hammond to appeal his conviction and sentence.
Specifically, he cited Carpenter v. United States, 138 S. Ct. 2206 (2018) and argued that the district court should have suppressed certain cell site location information (CSLI) that law enforcement used to locate him during his robbery spree and to confirm his location on the days of the robberies.
He also contended that the district court erred in instructing the jury regarding the felon-in-possession charge under Rehaif v. United States, 139 S. Ct. 2191 (2019). Finally, he claimed that Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c) or under the Sentencing Guidelines, so his § 924(c) conviction must be overturned, and his sentence vacated.
In rejecting each of his arguments, the 7th Circuit Court of Appeals in a Monday decision affirmed Hammond’s conviction and sentence in USA v. Rex Hammond, 19-2357.
The 7th Circuit first addressed the district court’s denial of Hammond’s motion to suppress the CSLI obtained from AT&T and the evidence derived from that data, including the physical evidence recovered from Hammond’s car and statements made to officers during the traffic stop.
“…(W)e hold that the first category—the historical CSLI collected under the magistrate judge’s § 2703(d) order—was a search for Fourth Amendment purposes, but was collected in good faith reliance on § 2703(d) of the Stored Communication Act, which was settled law at the time the government collected the data. As a result, the Fourth Amendment does not require the district court to exclude this evidence from the jury’s consideration. The second category of CSLI—the historical CSLI collected by (Detective Cory) Ghiringhelli—was not introduced at trial nor did it ‘taint’ any other evidence. Accordingly, there is no need to exclude evidence never admitted at trial or used improperly to obtain additional evidence. Finally, the collection of the CSLI in the third category—Hammond’s real-time CSLI— was not a search for Fourth Amendment purposes based on the facts of this case,” Circuit Judge Amy St. Eve wrote for the 7th Circuit.
Next, the judges addressed Hammond’s argument that he is entitled to a new trial on his conviction for being a felon in possession of a firearm based on the Supreme Court’s recent decision in Rehaif. Noting that Hammond had several prior felony convictions, including other armed robberies, for which he received decades-long sentences, the 7th Circuit concluded that as in United States v. Maez, 960 F.3d at 966 (7th Cir. 2020), “[t]here is no doubt that a jury permitted to hear such evidence would find [the defendant] knew his felon status.”
“Accordingly, the incomplete § 922(g) instruction did not result in a miscarriage of justice, and we exercise our discretion not to correct the district court’s unknowing error,” the court wrote.
The 7th Circuit further declined Hammond’s invitation to revisit its decisions in United States v. Anglin, 846 F.3d 954, 965 (7th Cir. 2017), United States v. Rivera, 847 F.3d 847, 849 (2017), and United States v. Brown, 973 F.3d 667, 697 (7th Cir. 2020).
“Hammond has not presented any new arguments regarding the continued validity of the elements clause of § 924(c) and its inclusion of Hobbs Act robbery in the definition of a ‘crime of violence’ that would warrant departing from our precedents and the unanimous conclusion of our sister circuits. Accordingly, the district court did not err in putting Hammond’s § 924(c) charges to the jury and sentencing him accordingly when the jury found Hammond guilty of both count,” the court wrote.
On his final argument, the 7th Circuit noted that Hammond forfeited his career offender enhancement of the sentencing guidelines by failing to bring the question before the district court in the first instance.
“On plain error review, we find that the district court’s sentence was not impacted by the Guidelines, and we therefore affirm Hammond’s sentence,” the court concluded.