By: Derek Hawkins//December 28, 2017//
7th Circuit Court of Appeals
Case Name: United States of America v. Robert E. Fox
Case No.: 16-2892
Officials: FLAUM, RIPPLE, and MANION, Circuit Judges.
Focus: Abuse of Discretion – Motion for Continuance Denied
Robert Fox was convicted of two Hobbs Act robberies. Because he used a firearm to commit the robberies, he was subject to 18 U.S.C. § 924(c)(1)’s mandatory sentencing add-on and was sentenced to 435 months’ imprisonment. On appeal, he principally argues that he is entitled to a new trial because the district court denied him his right to be represented by counsel of his choice. We affirm his conviction. The district court was well within its discretion to deny Fox’s morning-of-trial motion for a continuance when there was no indication Fox was particularly close to retaining new counsel.
Fox also raises three other arguments. He admits that the first two, which challenge parts of his conviction, are foreclosed by controlling precedent. He simply wishes to preserve them for Supreme Court review. But the government concedes that Fox is correct on his final argument, agreeing that he is entitled to resentencing in light of Dean v. United States, 137 S. Ct. 1170 (2017). We agree. Dean permits district courts to take into account the sentencing add-on when fashioning a just sentence for the predicate robberies, so the district court may impose a less severe sentence on remand. Therefore, we vacate Fox’s sentence and remand for resentencing.
Affirmed in part. Vacated and Remanded in part.