7th Circuit declines to vacate firearms convictions but reduces robbery restitution

A man convicted in a series of armed robberies failed to convince the 7th Circuit Court of Appeals that he and his co-conspirators used a fake gun that should undermine his firearms convictions. But the appellate court did vacate part of the man’s restitution order.

In United States of America v. Kashawn Morrow, 20-2259 defendant-appellant Kashawn Morrow was involved in a string of robberies across Indiana and Ohio in 2017. He and several others targeted electronics stores and held employees at gunpoint to steal various electronic devices.

But by the time Morrow and his co-conspirators were planning their fourth robbery, they were secretly under surveillance by the Indianapolis Metropolitan Police Department and the FBI. The group succeeded in robbing a Verizon store in Ohio, but they were later stopped by law enforcement in Indiana.

Morrow waived his Miranda rights and admitted to all four robberies, though he told an FBI agent that there were never bullets in the guns. A subsequent search of his apartment did not reveal any guns, though he did have a 9mm Smith & Wesson magazine in a dresser. Authorities also found a photo of one of Morrow’s co-conspirators in Morrow’s kitchen holding a Smith & Wesson.

Morrow was subsequently charged in a nine-count indictment that included counts of Hobbs Act robbery, use of a firearm during a crime of violence and transporting a firearm across state lines. Although a jury determined Morrow only “used,” rather than “brandished,” a firearm, he did not convince the jury that the weapon was not a “firearm” because it was actually an airsoft gun.

Morrow was then convicted on all counts, and the Indiana Southern District Court sentenced him to 17 years plus $119,472.58 in restitution for the robberies. At the time of sentencing, the government still possessed the items stolen in the Ohio robbery.

Morrow succeeded on only one of his four arguments on appeal: that restitution as to the Ohio robbery was improper. The 7th Circuit agreed, holding that “(b)ecause the stolen property from the Troy, Ohio robbery was in the government’s possession at the time of sentencing, it was error for the district court to order monetary restitution for that property.”

“We pause to note that this error may have been beyond the district court’s control — the record is unclear as to whether counsel for the government knew that the government still had the stolen property in its possession at sentencing, and if the government did know, whether the district court was notified,” Judge Thomas Kirsch wrote in a Friday opinion. “In any event, the government concedes the error now as it did in the appeal of Morrow’s co-defendant (Christopher) Davis. … Accordingly, we vacate the restitution award related to the Troy, Ohio robbery and remand for the district court to determine in the first instance the appropriate amount of restitution.”

But each of Morrow’s other appellate arguments failed, with the panel first addressing his claim that count 7 of the indictment, conspiracy to commit Hobbs Act robbery as to the Ohio incident, was not a crime of violence. He also argued that count 7 was the predicate offense for count 8, conspiracy to use a firearm during a crime of violence, meaning count 8 must be vacated.

But, Kirsch wrote, “We are skeptical whether the error Morrow identifies is error at all, and even if it was, whether it is ‘plain.’ Specifically, the government could have utilized the substantive Hobbs Act robbery — that is, the Troy, Ohio, robbery — as the predicate for count 8 … and we do not think it ‘clear’ or ‘obvious’ that count 7, instead, served as that predicate.

“As for the former, Morrow admitted repeatedly … that he committed the Troy, Ohio robbery. And at oral argument, Morrow conceded that robbery could serve as the predicate for count 8 without the government bringing a formal charge for the substantive offense,” Kirsch continued. “Moreover, Morrow admitted his guilt on count 8, and he does not dispute that admission on appeal. As for whether count 7 served as the predicate for count 8, the record is decidedly mixed, contrary to Morrow’s suggestion … .”

Further, “his repeated admission to committing the Troy, Ohio robbery foreclose finding that the ‘fairness, integrity or public reputation’ were impugned by his conviction on count 8. … Accordingly, Morrow fails to satisfy the plain error requirements for his conviction on count 8.”

Morrow next argued the government failed to prove a “firearm” was used in the first two Indiana robberies, returning to his claim that an airsoft gun was used. The panel assumed without deciding that airsoft guns are not firearms but pointed to eyewitness testimony saying the gun looked real and the fact that neither Morrow nor Davis said during their interrogations that they had used a fake gun.

“… Morrow’s arguments fail to persuade,” Kirsch wrote. “He attempts either to discount the strength of the government’s evidence or to offer alternative explanations of that evidence — in other words, Morrow invites us to step into the jury’s shoes to weigh the relative merits of the prosecution’s case. That we cannot do.”

Finally, Morrow unsuccessfully argued that Hobbs Act robbery is not a crime of violence. According to Kirsch, “’we have held time and again that Hobbs Act robbery qualifies as a crime of violence … because it entails the use or threat of force.’ United States v. McHaney, 1 F.4th 489, 491 (7th Cir. 2021).”

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