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Date: 07-26-2021
Case Style:
UNITED STATES OF AMERICA v. KASHAWN MORROW
Case Number: 20-2259
Judge: Thomas Lee Kirsch II
Court: United States Court of Appeals
For the Seventh Circuit
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Milwaukee, WI - Criminal defense lawyer represented defendant with a nine-count indictment: three counts of Hobbs Act robbery, three counts of use of a firearm in furtherance of a crime of violence, one count of conspiracy to commit Hobbs Act robbery, one count of conspiracy to use a firearm in furtherance of a crime of violence, and one count of transporting a firearm across state lines charges.
Kashawn Morrow and several codefendants participated in a string of four robberies over a
two-month span in 2017. The first three robberies targeted
various electronics stores in Indiana, and the fourth an
electronics store in Ohio. As Morrow and his co-defendants
attempted to make their getaway from Ohio to Indiana
following the fourth robbery, they were stopped and arrested
by federal law enforcement agents. As Morrow later learned,
2 No. 20-2259
law enforcement was tracking his movements—based on
information gleaned from the first three robberies—and was
waiting for the right moment to intervene. Following the
arrest, law enforcement was able to recover the electronics
from the fourth robbery but not the other three. Morrow also
confessed to his role in the robberies and was later charged in
a nine-count indictment: three counts of Hobbs Act robbery
(the Indiana robberies), three counts of use of a firearm in
furtherance of a crime of violence (related to the Indiana
robberies), one count of conspiracy to commit Hobbs Act
robbery (the Ohio robbery), one count of conspiracy to use a
firearm in furtherance of a crime of violence, and one count of
transporting a firearm across state lines.
Morrow proceeded to trial on all counts. He admitted guilt
on each charge except for the three use-of-a-firearm counts related to the three Indiana robberies, asserting that a fake firearm, not a real one, was used.1 The jury found Morrow guilty
on all counts. At sentencing, the district court imposed a 204-
month-and-one-day term of imprisonment and ordered monetary restitution equal to the value of the electronics stolen in
all four robberies.
On appeal, Morrow reprises his argument that a fake gun
was used in the first two robberies, undermining the
sufficiency of the government’s evidence on the two use-of-afirearm counts related to the first two Indiana robberies. He
also argues that the government improperly used the Hobbs
1 Morrow now abandons his challenge to the use-of-a-firearm count related to the third Indiana robbery because, as we explain below, he
“grabbed the store employee’s pistol, which was a real firearm,” during
that robbery. Appellant’s Br. at 23 n.11.
No. 20-2259 3
Act conspiracy charge as a predicate for the conspiracy-touse-a firearm-in-furtherance-of-a-crime-of-violence charge;
that Hobbs Act robbery is not a crime of violence, invalidating
the three counts concerning use of a firearm in furtherance of
a crime of violence; and that because the government had the
electronics from the fourth robbery in its possession at the
time of sentencing, the district court erred in ordering
monetary restitution for those stolen goods. For the reasons
stated below, we agree with Morrow’s restitution argument,
but otherwise affirm Morrow’s convictions and sentence.
I
A
Kashawn Morrow’s robbery spree began on February 19,
2017. He and co-defendant Christopher Davis drove to a
Sprint cellular store in Indianapolis. While Davis waited in
the car, Morrow entered the store unarmed and spoke with
the store’s employee, Samantha Brougham. Morrow then left
the store and got back into the car with Davis. Moments later,
Davis entered the store. He locked the door, approached
Brougham while pointing a gun at her, and forced her to open
the store’s back room. Davis then held Brougham at gunpoint
in the back room and ordered another employee, Tristan
Weddington, to put various electronic devices into a backpack
Davis had with him. Backpack in hand, Davis exited the store
and rejoined Morrow in their car to flee the scene.
Nine days later, on February 27, Morrow and Davis
robbed a Radio Shack/Sprint cellular store in Indianapolis using a strategy similar to the February 19 robbery. After the
pair arrived, Morrow got out of the vehicle and entered the
store to talk to one of the employees on duty, Josiah Norton.
4 No. 20-2259
Morrow then left the store and returned to his vehicle; Davis
entered, locking the door and pointing a gun at Norton and
another employee, Maleek.2 Pressing the gun to the back of
Norton’s head, Davis ordered the employees to go to the back
room and to fill his backpack with various electronic devices.
Davis later exited the store with the backpack, fleeing with
Morrow in the waiting vehicle.
On March 4, Morrow and Davis targeted a Sprint cellular
store in Indianapolis. For this robbery, both Morrow and Davis entered the store. Davis was armed with the same gun he
used in the first two robberies. Once inside, Morrow and Davis forced several employees into the back room and ordered
them to fill two bags with various electronic devices. One of
the employees, Paopong Pengthieng, was armed with a pistol.
When Morrow and Davis discovered Pengthieng was armed,
they tried to wrestle his pistol from him. In the struggle
Pengthieng was able to eject the pistol’s magazine and fire the
weapon once, clearing the chamber and hitting no one. Morrow then took control of the gun and pointed it at Pengtheing.
When the struggle concluded, Morrow and Davis took the
bags filled with electronics and fled the scene.
Morrow and Davis did not attempt another robbery until
March 30. Unbeknownst to them at the time, law enforcement
officers from the Indianapolis Metropolitan Police Department and the Federal Bureau of Investigation were actively
surveilling the vehicle Morrow and Davis used in the February 19 robbery. For this heist, they were joined by two other
accomplices, David McGhee and Darrin Bell. The four drove
in two vehicles—one of them the vehicle law enforcement was
2 The parties do not identify Maleek’s last name.
No. 20-2259 5
surveilling—to Troy, Ohio. After scoping out several electronics shops, the crew settled on robbing a Verizon store. This
time McGhee was the first to enter. Once inside he spoke with
its only employee, Gerad Jacobs. Morrow, Davis, and Bell
then entered the store. Morrow was carrying a .22 caliber
Mossberg rifle. The crew forced Jacobs to open the back room
and load various electronic devices into a bag. When Jacobs
finished, the crew told Jacobs to lie on the ground and threatened him before making their escape.
Their escape, however, was short-lived. Law enforcement
stopped both vehicles in Indiana as the men were traveling
back to Indianapolis. In the trunk of the vehicles, law enforcement officers discovered the loaded rifle Morrow carried, another loaded handgun, and $61,409.38 worth of electronic devices. Shortly thereafter, Morrow and Davis waived their Miranda rights and agreed to speak with the officers. Both confessed that they had committed each of the four robberies described above. Morrow’s interviewer, FBI agent Adam Vail,
remarked at one point, “Thank God [Davis] didn’t fire a shot,”
to which Morrow replied, “We didn’t have no bullets. We
don’t go in the store with bullets.”
Law enforcement thereafter twice searched Morrow’s
apartment. They did not find a gun of any kind, but they did
discover a loaded 9mm Smith and Wesson magazine in Morrow’s bedroom dresser. A later search of Davis’s cellphone revealed a picture of Davis on a countertop in Morrow’s kitchen
with a black and silver handgun bearing the Smith and Wesson insignia.
6 No. 20-2259
B
Morrow was charged in a nine-count indictment. Counts
1, 3, and 5 charged Morrow with Hobbs Act robbery under 18
U.S.C. § 1951(a) for the February 19, February 27, and March
4 robberies, respectively. Counts 2, 4, and 6 charged Morrow
with using or aiding and abetting the use of a firearm during
a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii) and 18
U.S.C. § 2. Each § 924(c) count identified the underlying crime
of violence by reference—that is, count 2 referenced the “robbery as charged in” count 1, count 4 referenced count 3, and
count 6 referenced count 5. The § 924(c) counts also charged
Morrow with brandishing the firearm. The government
charged conspiracy to commit Hobbs Act robbery in count 7
concerning the March 30 robbery in Troy, Ohio.3 In count 8,
the government charged Morrow as follows:
On or about March 30, 2017, KASHAWN
MORROW, CHRISTOPHER DAVIS, DAVID
MCGHEE and DARRIN BELL, in the Southern
District of Indiana and elsewhere, did conspire
to use a firearm during and in relation to a crime
of violence for which the person may be prosecuted in a Court of the United States to wit, robbery. In furtherance of that conspiracy, one or
more co-conspirators committed the overt acts
of casing a cellular phone retail store in Richmond, Indiana, and/or the armed robbery of a
cellular phone retail store in Troy, Ohio. All in
3 The government stated at oral argument that it charged Hobbs Act conspiracy rather than the substantive offense because it had venue to charge
the former, but not the latter. Morrow does not challenge venue on appeal.
No. 20-2259 7
violation of Title 18, United States Code, Section
924(o).
R. 38 at 4. Count 9 charged Morrow with transporting a firearm across state lines intending to commit a felony under 18
U.S.C. § 924(b).
Morrow and Davis proceeded to trial on all counts. At
trial, Morrow testified in his defense, conceding his guilt for
each of the four robberies. But Morrow challenged counts 2,
4, and 6, the § 924(c) charges related to the February 19, February 27, and March 4 robberies, on two fronts: (1) because he
was in the car when Davis was inside the stores, he did not
“brandish” a firearm; and (2) because Davis used an Airsoft
gun, the government could not meet its burden to prove a
“firearm,” as defined under § 924(c)(1)(A), was used. The jury
agreed with Morrow on the former, finding him not guilty of
brandishing a firearm; accordingly, we focus our discussion
of the trial evidence on the latter.
We begin with the eyewitness testimony. One of the first
robbery’s victims, Brougham, was asked whether she “g[o]t a
good look at the gun.” R. 293 at 54. She responded, “[y]es and
no,” noted that she “c[ould] distinguish the color,” admitted
that she was “not very smart with guns,” and added: “I can
tell you it was a handgun and that it was dark gray.” Id. at 54.
The second victim, Weddington, did not “get a good look at
the gun” but believed the gun was real. Id. at 62. Norton, one
of the second robbery’s victims, testified that he saw Davis
pull out a semiautomatic handgun as he entered the store and
heard the “slide rack.” He went on to explain that with “a
semiautomatic [handgun] you have to pull the chamber or the
rack back to chamber a round.” Id. at 68–69. On crossexamination, Norton noted that he “grew up in the country”
8 No. 20-2259
and “played with a lot of Airsoft guns and stuff,” but that the
handgun he saw Davis use “didn’t look like an Airsoft gun”
to him. Id. at 80. Another victim, Pengthieng, testified that
Davis was holding a semiautomatic handgun and pointed it
at him and another store employee. As discussed, Pengthieng
had a military background and carried a concealed handgun,
and he described in detail the operation of his handgun. He
later stated that the handgun Davis displayed looked “real.”
Id. at 96.
Davis introduced an Airsoft gun into evidence that he
claimed was the gun he used to commit the first three robberies. Davis’s brother recalled seeing Davis with that Airsoft
gun, and Davis later introduced several photographs of him
allegedly with that gun. Morrow claimed that the Airsoft gun
introduced into evidence was his; he gave it to Davis to use in
the three robberies because “[i]t would be no harm or danger
towards anybody.” R. 294 at 210–11.
To prove that the gun was, in fact, a real firearm, the government introduced the cellphone photo of Davis in Morrow’s kitchen with a black and silver Smith and Wesson handgun. It also introduced several still photographs from surveillance footage taken during the robberies showing Davis holding a silver and black handgun. The government then introduced the Smith and Wesson 9mm handgun magazine found
in Morrow’s bedroom dresser. Agent Vail testified that he did
not recover an Airsoft gun or any accessories for such a gun
during the search of Morrow’s residence. He also testified that
Morrow did not mention an Airsoft gun during his custodial
interview, something that other interviewees generally “tell
[him] almost immediately” when a fake gun is used to commit a crime. R. 294 at 101–102, 138–39. Lastly, the government
No. 20-2259 9
elicited testimony that the Airsoft gun Davis introduced differed from the gun in the cellphone photo and surveillance
footage in barrel color (black instead of silver), the shape of
the trigger guard, and the magazine plate.
Agent Vail admitted that he did not have “direct
knowledge” that the gun pictured in the photo from Davis’s
cellphone was the gun used in the robberies. R. 294 at 159–60.
And he believed that it was possible to confuse an Airsoft gun
with a real firearm. He also stated it was “possible” that Morrow’s statement to him in the custodial interview concerning
“no bullets” could be construed as Morrow admitting he did
not use a real firearm. Id. at 160–61.
In closing argument, counsel for Morrow reiterated that
Morrow confessed to “commit[ting] four robberies” and that,
“at every opportunity when questioned about his role in th[e]
robberies, he said he did it. He did so before [the jury].” R. 294
at 279. Counsel continued: “Morrow, he confessed. And to
confess, says [sic] admitting that one is guilty of a crime. So
the government’s [sic] right on Counts 1, 3, 5, 7, 8 and 9. Mr.
Morrow confessed to those crimes. Not a lot for you to deal
with there.” Id. at 279–80. Counsel went on to argue the theme
developed at trial, that the handgun used in the first three robberies was not a real firearm.
The jury found Morrow guilty on all counts, making a special finding that he only “used” instead of “brandished” the
firearm in counts 2, 4, and 6. At sentencing, the district court
ticked through the counts of conviction. Several statements
the district judge made during the hearing form part of Morrow’s attack on his count 8 conviction. First, when recounting
the jury verdict, the court stated, “Count 7, conspiracy to affect robbery by commerce …; Count 8, conspiracy to use a
10 No. 20-2259
firearm during and in relation to a crime of violence.” R. 292
at 2. Later, the district court characterized those offenses
thusly: “Count 7 being conspiracy to interfere with commerce
by robbery; Count 8[,] conspiring to use a firearm during and
in relation to a robbery charged in Count 7.” Id. at 4 (emphasis
added). Morrow’s presentence investigation report mirrors
the court’s characterization of count eight. Neither party objected to the report.
Ultimately, the court sentenced Morrow to 204 months’
and one day imprisonment. The court also ordered
$119,472.58 in total restitution for the four robberies, including $61,409.38 for the fourth, Troy, Ohio robbery. At the time
of sentencing, the government still possessed the electronic
devices recovered from the fourth robbery.
II
Morrow raises four arguments on appeal: (1) conspiracy
to commit Hobbs Act robbery—as charged in count 7—is not
a crime of violence under § 924(c)(3)(A)’s elements clause, and
because count 7 was the predicate offense for count 8’s
§ 924(o) charge, count 8 must be vacated; (2) the government
failed to meet its burden to prove Davis used a real gun, and
not the Airsoft gun introduced at trial, to support Morrow’s
§ 924(c) convictions on counts 2 and 4;4 (3) Hobbs Act robbery
is not a “crime of violence” as that term is defined under
§ 924(c)(3)(A)’s elements clause, and thus cannot serve as a
predicate for the § 924(c) offenses in counts 2, 4, and 6; and (4)
the $61,409.38 restitution order concerning the Troy, Ohio
robbery was error because the government had in its
4 As we mentioned above, Morrow abandons on appeal his challenge to
the § 924(c) charge in count 6.
No. 20-2259 11
possession the electronic devices recovered from that robbery
at the time of sentencing. We address each argument in turn.
A
Morrow insists that count 7’s charge for conspiracy to
commit Hobbs Act robbery served as the predicate offense for
count 8, conspiracy to commit a § 924(c) offense. In support,
he points to the district court’s characterization of count 8 at
sentencing and the PSR’s description of that count—adding
that the government failed to object to either characterization—as well as the text and structure of the indictment.
Before reaching the merits, we note two points of agreement. First, the government concedes that conspiracy to commit Hobbs Act robbery is not a crime of violence under
§ 924(c)(3)(A)’s elements clause. Because of the government’s
concession, the parties’ views on this question are aligned and
we assume that position is correct without deciding the issue.
Second, Morrow concedes that he did not raise this argument
at trial, and the government agrees that it was forfeited. See
United States v. Moody, 915 F.3d 425, 429 (7th Cir. 2019) (“If the
government cannot proffer any strategic justification for a defendant’s omission, we will presume an inadvertent forfeiture
rather than an intentional relinquishment.”). So we review
Morrow’s argument under the plain error standard. See FED
R. CRIM. P. 52(b); Greer v. United States, 141 S. Ct. 2090, 2096
(2021).5
5 As discussed above, Morrow admitted his guilt on count 8 before the
jury at trial. But that admission does not preclude plain error review of an
unpreserved objection to the legal underpinnings of that count. On the
contrary, Morrow may press that challenge despite his admissions of guilt
at trial. See Greer, 141 S. Ct. at 2096 (applying plain error standard when
12 No. 20-2259
Under Federal Rule of Criminal Procedure 52(b), we
“may” address a “plain error that affects substantial rights …
even though it was not brought to the [district] court’s attention.” FED R. CRIM. P. 52(b). The Supreme Court has interpreted Rule 52(b) as having three “threshold” requirements:
(1) “there must be an error;” (2) “the error must be plain;” and
(3) “the error must affect ‘substantial rights,’ which generally
means that there must be ‘a reasonable probability that, but
for the error, the outcome of the proceeding would have been
different.’” Greer, 141 S. Ct. at 2096 (quoting Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1904–05 (2018)). The defendant
bears the burden of establishing that those three requirements
are satisfied. See id. at 2097. If he does so, we may grant the
relief he seeks if we “conclude[] that the error had a serious
effect on ‘the fairness, integrity or public reputation of judicial
proceedings.’” Id. at 2096–97 (quoting Rosales-Mireles, 138 S.
Ct. at 1904–05). The defendant bears the burden on this fourth
requirement as well. See id. And as the Supreme Court recently reminded litigants, “[s]atisfying all four prongs of the
plain-error test is difficult.” Id. at 2097 (quotation omitted).
We begin with the text of the statute charged in count 8.
Section 924(o) of Title 18 proscribes conspiring to commit an
offense under § 924(c). Section 924(c)(1)(A), in turn, prohibits
using a firearm “during and in relation to any crime of
violence … for which the person may be prosecuted.” Note
the statute’s use of “may be”—§ 924(c)(1)(A) does not require
“prosecution for or conviction of that other offense” to
establish a predicate crime of violence offense. Davila v. United
States, 843 F.3d 729, 731 (7th Cir. 2016). Rather, “proof of the
defendants challenged convictions after one pleaded guilty and the other
admitted element of offense at trial).
No. 20-2259 13
predicate [] offense is an element” of a § 924(c) charge that
“must be proven beyond a reasonable doubt.” United States v.
Freeman, 815 F.3d 347, 351 (7th Cir. 2016). Stated differently,
the defendant “must have committed all of the acts necessary
to be subject to punishment for the crime of violence.” United
States v. Moore, 763 F.3d 900, 908 (7th Cir. 2014).
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, see post II.C, and we do not think it “clear”
or “obvious” that count 7, instead, served as that predicate.
Rosales-Mireles, 138 S. Ct. at 1904. As for the former, Morrow
admitted repeatedly—in his custodial interview, on the stand
at his trial, and in his closing arguments—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. Moreover, Morrow admitted his guilt on
count 8, and 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,
for several reasons. First, counts 2, 4, and 6 (the § 924(c)
counts) explicitly identify counts 1, 3, and 5 as the predicate
offenses, respectively. Count 8 does not reference count 7; rather, the predicate is identified only as a “robbery.” Second,
the only “robbery” that occurred on March 30, 2017—the date
identified in count eight—was the fourth robbery in Troy,
Ohio. Third, the indictment lists, as an overt act, “the armed
robbery of a cellular phone retail store in Troy, Ohio.” So it
appears neither “clear” nor “obvious” that count 7 served as
count 8’s predicate.
14 No. 20-2259
But even assuming Morrow meets the first three threshold
requirements, his repeated admissions to committing the
Troy, Ohio robbery foreclose finding that the “fairness, integrity or public reputation” were impugned by his conviction
on count 8. There is no doubt as to Morrow’s full and willing
participation in the robbery related to that count—his admission of guilt on appeal is the last of a long line of similar admissions throughout the criminal process. And, as discussed,
Morrow also admitted to the jury that he was guilty on count
8. Cf. United States v. Driver, 242 F.3d 767, 771 (7th Cir. 2001)
(holding that errors in change-of-plea hearing did not affect
the “fairness, integrity, or public reputation of judicial proceedings” when defendant “avowed that he was pleading
guilty because he [was] guilty” in his plea agreement and “on
his feet in court.” (quotation omitted)). Finally, Morrow correctly recognizes that the government did not have to charge
a substantive offense to establish the predicate offense for
count 8. Accordingly, Morrow fails to satisfy the plain error
requirements for his conviction on count 8.
B
Morrow next asks us to find the government failed to meet
its burden on counts 2 and 4 to prove a “firearm” was used in
the first two robberies. He relies primarily on Davis’s introduction of an Airsoft gun at trial and his testimony that he
gave that gun to Davis to use in those robberies. And he discounts the government’s contrary evidence as “tenuous,”
stressing the relative weakness of the government’s case.
Morrow admits that he did not raise this argument at trial
in a motion under Federal Rule of Criminal Procedure Rule
29. Accordingly, we review his sufficiency challenge for plain
error. See United States v. Lundberg, 990 F.3d 1087, 1095 (7th
No. 20-2259 15
Cir. 2021). As for sufficiency challenges, we “may overturn a
jury verdict for insufficient evidence only if no rational trier
of fact could have agreed with the jury.” Id. In conducting this
analysis, we view the evidence holistically and in a light most
favorable to the government, resisting attempts to reweigh evidence or reassess credibility. See United States v. Wallace, 991
F.3d 810, 812 (7th Cir. 2021); United States v. Memar, 906 F.3d
652, 656 (7th Cir. 2018). We have described this standard as “a
nearly insurmountable hurdle” when a defendant preserves a
sufficiency challenge; when unpreserved, that hurdle is several notches higher. Lundberg, 990 F.3d at 1095. Specifically, a
defendant must show that the record “is devoid of evidence
pointing to guilt, or [that] the evidence on a key element of
the offense was so tenuous that a conviction would be shocking.” Id. (quotations omitted).
Morrow’s argument focuses on § 924’s text, so we begin
there. As discussed, § 924(c)(1)(A) prohibits the “use” or “possession” of a firearm “in furtherance of” and “during and in
relation to any crime of violence.”6 For purposes of § 924(c), a
“firearm” is defined as “any weapon (including a starter gun)
which will or is designed to or may readily be converted to
expel a projectile by the action of an explosive.” Id. § 921(a)(3).
When interpreting this definition, we have held that the government must prove that a “real gun” was used, United States
v. Amaya, 828 F.3d 518, 524 (7th Cir. 2016), not “a replica or toy
6 Section 2 of Title 18, in turn, prohibits a person from aiding or abetting
“an offense against the United States” and punishes any such person as a
“principal.” Morrow does not challenge the government’s evidence concerning whether he aided and abetted Davis’s use of a firearm in furtherance of the first two Hobbs Act robberies.
16 No. 20-2259
gun.” United States v. Lawson, 810 F.3d 1032, 1039 (7th Cir.
2016).
Several principles may be drawn from our cases confronting sufficiency challenges to a § 924(c) charge’s firearm element. First, “the fact that the gun was not produced at trial or
that the witnesses did not have an opportunity to examine
closely the weapon does not prevent conviction of a firearm
offense.” United States v. Buggs, 904 F.2d 1070, 1076 (7th Cir.
1990). Relatedly, “when a witness can testify that a defendant
brandished [or used] a firearm,” the government need not introduce the firearm at trial or produce “other corroborating
evidence to sustain a conviction.” United States v. Ingram, 947
F.3d 1021, 1025 (7th Cir. 2020). Moreover, the government
does not have to produce “an expert witness or more than one
lay witness” to establish that a firearm was used. Lawson, 810
F.3d at 1040.
We assume without deciding that Airsoft guns are not
“firearms” under § 921(a)(3)’s definition because the government does not argue otherwise. To be sure, we have once before noted—albeit in dicta—that Airsoft guns are “replicas of
firearms.” See Gibbs v. Lomas, 755 F.3d 529, 534 (7th Cir. 2014);
see also United States v. Davis, 841 F.3d 1253, 1255 n.2 (11th
Cir. 2016) (citing Gibb’s dicta with approval). But because the
government does not press the issue, we need not reach it to
resolve Morrow’s appeal.
Moving to the merits of Morrow’s argument, the government’s evidence was far from tenuous. Quite the contrary. Recall that the government elicited testimony from four robbery
victims concerning the gun they saw during the robberies; introduced a photo from Davis’s phone showing a silver and
black Smith and Wesson handgun; elicited testimony that the
No. 20-2259 17
trigger guard, gun color, and base plate of the Airsoft gun differed from the gun in that photo; introduced surveillance
footage that appears to show a silver and black handgun; recovered and introduced a 9mm Smith and Wesson magazine
from Morrow’s bedroom; elicited testimony that law enforcement did not find an Airsoft gun or Airsoft gun accessories in
the search of Morrow’s residence; and elicited testimony that
neither Morrow nor Davis told agents in their custodial interviews that they used a fake gun. We have affirmed § 924(c)
convictions on far less. See Amaya, 828 F.3d at 524; Lawson, 810
F.3d at 1039.
Moreover, Morrow’s arguments fail to persuade. He attempts either to discount the strength of the government’s evidence or to offer alternate 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. See Wallace, 991 F.3d at 812. And to the extent Morrow attempts to pick apart the government’s evidence piece
by piece, his efforts are inconsistent with our review of sufficiency challenges. See Memar, 906 F.3d at 656; see also United
States v. Farmer, 717 F.3d 559, 563 (7th Cir. 2013) (“The jury’s
duty was to consider the entire record as presented at trial; it
was not required to consider whether or not one piece of evidence in isolation supported a guilty verdict.”). In sum, Morrow fails to demonstrate plain error concerning his sufficiency
challenge to counts 2 and 4.
C
Like many defendants before him, Morrow asks us to hold
that Hobbs Act robbery is not a “crime of violence” under
§ 924(c)(3)(A)’s elements clause. Morrow recognizes that our
precedent forecloses this argument. But he hopes to preserve
18 No. 20-2259
the issue for reconsideration, focusing on an unpublished decision from the Northern District of California that he believes
“call[s] [our] precedent into question.” Appellant’s Br. at 21;
see United States v. Chea, No. 98-cr-2000-1, 2019 WL 5061085
(N.D. Cal. Oct. 2, 2019).
As Morrow admittedly recognizes, “we have held time
and again that Hobbs Act robbery qualifies as a crime of violence under the elements clause … because it entails the use
or threat of force.” United States v. McHaney, 1 F.4th 489, 491
(7th Cir. 2021). And as we noted in McHaney, all our sister circuits agree. Id. at 492. This includes the Ninth Circuit. In a decision issued after Chea, the Ninth Circuit in United States v.
Dominguez “reiterate[d]” that “Hobbs Act armed robbery is a
crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A).” 954
F.3d 1251, 1255 (9th Cir. 2020). Morrow does not attempt to
square Chea with Dominguez, and we are not sure how those
two cases can be read together. In any event, we need not
adopt the reasoning of an out-of-circuit case when binding
circuit precedent resolves the issue. See United States v. Adams,
934 F.3d 720, 729 (7th Cir. 2019). So we decline Morrow’s invitation to do so, and reaffirm once again our long, unbroken
line of precedents resolving this question against him.
D
Finally, Morrow argues that the district court plainly erred
when it ordered him to pay $61,409.38 for the property
stolen—and later recovered by the government—in the Troy,
Ohio robbery. The government concedes this error; at oral
argument, the government admitted that the stolen property
was in the government’s possession when Morrow was
sentenced.
No. 20-2259 19
When a victim suffers a loss of property due to defendant’s offense, as with Hobbs Act robbery, a district court ordinarily must order the defendant “to return the property to the
owner of the property or someone designated by the owner.”
18 U.S.C. § 3663A(b)(1)(A). But if returning the stolen property is “impossible, impracticable, or inadequate,” the court
must instead order that defendant pay some amount to compensate for the loss. Id. § 3663A(b)(1)(B). In United States v. Anderson, we held that the government bears the burden to prove
that § 3663A(b)(1)(B), and not § 3663A(b)(1)(A), dictates the
restitution award when stolen property remains in the government’s possession. 866 F.3d 761, 765 (7th Cir. 2017). We
went on to hold that the government’s failure to notify the
district court that it had possession of certain stolen property
at the time of sentencing was an error “obvious under the
law”—that is, plain error. Id. at 767.
Because 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. In any event, the government concedes the
error now as it did in the appeal of Morrow’s co-defendant
Davis. See Order, United States v. Davis, 19-2256, D.E. 29 (7th
Cir. May 29, 2020). 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.
Outcome: In sum, we AFFIRM Morrow’s convictions and sentence
on counts one through nine, VACATE the restitution award
concerning the Troy, Ohio robbery, and REMAND for a
determination of the appropriate restitution award for that
robbery.7
Plaintiff's Experts:
Defendant's Experts:
Comments: