                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-1684
UNITED STATES OF AMERICA,
                                                    Plaintiff-Appellee,
                                  v.


TERRANCE MCCARTER,
                                                Defendant-Appellant.

                          ____________
           Appeal from the United States District Court for
          the Northern District of Illinois, Eastern Division.
              No. 03 CR 835—Elaine E. Bucklo, Judge.
                          ____________
     ARGUED FEBRUARY 25, 2005—DECIDED APRIL 27, 2005
                          ____________




  Before BAUER, POSNER, and RIPPLE, Circuit Judges.
   POSNER, Circuit Judge. The defendant was found guilty of
attempted robbery in violation of the Hobbs Act, 18 U.S.C.
§ 1951(a), but also of attempted bank robbery in violation of
the federal bank-robbery statute, 18 U.S.C. § 2113(a), and
was given concurrent prison sentences of 188 months. The
facts are colorful. Claudia Cahill, a nurse, drove her car into
a parking garage near her place of work in Oak Park,
Illinois, and parked on the fourth level of the garage. She
2                                                No. 04-1684

left the car and as she approached the elevator a masked
man accosted her, pointed his gun at her, and ordered her
to put her face against the wall, which she did. He rifled her
purse but found only $13 and told her it wasn’t enough. But
then he found her ATM card and said, “I see you have a
bank card; we’re going for a little ride” (or words to that
effect). He walked her to her car, still pointing the gun at
her, and she got into the driver’s seat and tried to close the
door but he blocked the door with his left hand (the gun
was in his right hand), and in doing so touched the driver’s
window. He then got into the back seat of the car and
crouched down, pressing the gun against Cahill’s back. She
started to drive out of the garage but stopped on the second
level when she saw a man and a woman with their one-
year-old baby. She rolled down her car window and cried,
“Please help me. I’m being robbed at gunpoint.” The robber
leapt from the car and pointed his gun at the man, threaten-
ing to shoot him, but instead ran away.
   No one was able to identify the robber, but he had left a
fingerprint on the car window and eventually this was
matched with a fingerprint of the defendant’s that was on
file. Had the crime not been interrupted, and Cahill been
forced to withdraw money from an ATM, she would have
done so by inserting her card into the ATM, causing an
electronic signal to be sent to Ohio, where the transaction
would have been processed and a signal dispatched back to
the ATM to enable her to withdraw cash from the machine.
  The Hobbs Act criminalizes robbery and extortion that “in
any way or degree obstructs, delays, or affects commerce.”
18 U.S.C. § 1951(a). The defendant argues that since he
never got near the ATM, he could not have violated the Act.
That is wrong. The Hobbs Act expressly embraces attempts
to obstruct commerce by robbery or extortion, id., as well as
the completed obstruction. So the question is merely
No. 04-1684                                                    3

whether commerce would have been obstructed had the
attempt succeeded. United States v. Bailey, 227 F.3d 792, 797
(7th Cir. 2000); United States v. Jamison, 299 F.3d 114, 117-20
(2d Cir. 2002). It would have been. Had Cahill been forced
to withdraw money from an ATM, the withdrawal would
have been an interstate transaction, a transaction in com-
merce. United States v. Lynch, 367 F.3d 1148, 1157 (9th Cir.
2004) (per curiam); United States v. Atcheson, 94 F.3d 1237,
1243 (9th Cir. 1996); United States v. Baker, 82 F.3d 273, 275-
76 (8th Cir. 1996). And Congress’s commerce power, exerted
to the full in the Hobbs Act, Scheidler v. National Organization
for Women, Inc., 537 U.S. 393, 408 (2003); Stirone v. United
States, 361 U.S. 212, 215 (1960); United States v. Peterson, 236
F.3d 848, 851-52 (7th Cir. 2001), includes the power to forbid
criminally motivated interstate transactions. United States v.
Lopez, 514 U.S. 549, 558 (1995); Perez v. United States, 402 U.S.
146, 150 (1971); United States v. Darby, 312 U.S. 100, 113-14
(1941); Brooks v. United States, 267 U.S. 432, 436-39 (1925);
Hoke v. United States, 227 U.S. 308, 320-23 (1913).
   But did the defendant also attempt a bank robbery? That
depends, first, on whether money in an ATM is “in the care,
custody, control, management, or possession of, any bank,”
18 U.S.C. § 2113(a), which obviously it is, United States v.
Blajos, 292 F.3d 1068, 1071-72 (9th Cir. 2002); cf. United States
v. Jakalski2 237 F.2d 503, 505-06 (7th Cir. 1956) (money stolen
from hired armored car service was bank’s property); United
States v. King, 178 F.3d 1376, 1378 (11th Cir. 1999) (same);
United States v. Damm, 133 F.3d 636, 638-39 (8th Cir. 1998)
(same), and, second, on whether forcing a customer to
withdraw cash from an ATM is robbing the bank rather
than robbing just the customer. If the depositor is robbed of
the money he has just withdrawn after he leaves the bank,
that is not a bank robbery. United States v. Van, 814 F.2d
1004, 1006-08 (5th Cir. 1987). But if, as the defendant
4                                              No. 04-1684

intended to do here, the robber forces the bank’s customer
to withdraw the money, the customer becomes the unwill-
ing agent of the robber, and the bank is robbed. Cf. Embrey
v. Hershberger, 131 F.3d 739 (8th Cir. 1997) (en banc).
  It was redundant to charge the defendant under both the
Hobbs Act and the bank-robbery statute, since both punish
attempted bank robbery. Because there was only one trial,
there is no (more precisely, there should not be any,
Department of Revenue v. Kurth Ranch, 511 U.S. 767, 798-805
(1994) (dissenting opinion)) issue of double jeopardy. But
the Supreme Court has held that there is a “component of
double jeopardy protection” applicable to multiple sen-
tences imposed in the same criminal proceeding, Ohio v.
Johnson, 467 U.S. 493, 499 (1984), although it is a limited
component: “With respect to cumulative sentences imposed
in a single trial, the Double Jeopardy Clause does no more
than prevent the sentencing court from prescribing greater
punishment than the legislature intended.” Missouri v.
Hunter, 459 U.S. 359, 366 (1983). Because every bank robbery
is also a Hobbs Act violation and the maximum punish-
ments are the same, it is unlikely that Congress wanted to
allow the government to try to obtain a longer sentence
(though the government failed here, since the judge im-
posed concurrent sentences, with a minor qualification
noted below) just by charging a bank robber under the
Hobbs Act as well as under the bank-robbery statute.
  In Blockburger v. United States, 284 U.S. 299 (1932), the
Supreme Court created a presumption that Congress does
not intend the same act to be punished twice under separate
statutes unless they have different elements. And the
elements of the Hobbs Act and the bank-robbery statute are
indeed different; the former requires that the robbery in-
terfere with interstate commerce while the latter requires
that the robbery be of a bank. The same physical act can
No. 04-1684                                                   5

have multiple consequences addressed by different statutes,
as in United States v. Hatchett, 245 F.3d 625, 630-42 (7th Cir.
2001), where the defendant was punished separately both
for selling drugs and, by that sale, aiding and abetting his
buyer to resell the drugs. But where, as in the present case,
the consequences of the act are the same—namely, a bank is
robbed—in fact are always the same, when the bank-robbery
statute is violated—the fact that bank robbery is also punish-
able (and no more severely) under the Hobbs Act provides
no rational basis for double punishment, as most cases hold.
United States v. Holloway, 309 F.3d 649, 651-52 (9th Cir. 2002);
United States v. Golay, 560 F.2d 866, 869-70 (8th Cir. 1977);
United States v. Beck, 511 F.2d 997, 1000 (6th Cir. 1975);
contra, United States v. Maldonado-Rivera, 922 F.2d 934, 982-
83 (2d Cir. 1990).
   And we know from cases such as Garrett v. United States,
471 U.S. 773, 779 (1986); Albernaz v. United States, 450 U.S.
333, 340 (1981); Busic v. United States, 446 U.S. 398, 405-07
(1980), and Simpson v. United States, 435 U.S. 6, 13-15 (1978),
that legislative history which clearly indicates an intention
regarding whether to permit multiple punishment is enti-
tled to weight. When in 1986 Congress amended the bank-
robbery statute to make clear that it forbade extortion (as in
threatening the family of a bank official in order to induce
him to take money from the bank) as well as outright
robbery, the House committee report on the amendment
stated that its purpose was “to overrule . . . those cases
holding that both the Hobbs Act and [the bank-robbery
statute, i.e., 18 U.S.C. § 2113(a)] apply, in order to make [the
bank-robbery statute] the exclusive provision for prosecut-
ing bank extortion.” Criminal Law and Procedure Technical
Amendments Act of 1986, H.R. Rep. No. 99-797, at 32-33,
reprinted in 1986 U.S.C.C.A.N. 6138, 6155-56. The implica-
tion was that bank robbery, too, would be prosecuted
6                                               No. 04-1684

exclusively under the bank-robbery statute; indeed, that
would be an a fortiori case.
  Maldonado-Rivera, the outlier—the only case to hold that
bank robbery may be punished separately under both
statutes—did not mention this legislative history. Holloway,
while agreeing with the majority view that separate pun-
ishment is forbidden, said that “the committee report em-
phasizes that 18 U.S.C. § 2113(a) is being made exclusive
only as to ‘bank extortion.’ ” 309 F.3d at 651. That makes it
sound as if the report indicated that Congress wanted bank
robbery to be punishable separately under both statutes. But
robbery wasn’t before Congress; the statute addressed only
bank extortion because it was resolving a conflict among the
circuits on whether bank extortion could be punished
separately under both statutes. The logic of the committee
report extends equally to bank robbery.
  The defendant failed to argue that bank robbery cannot be
punished separately under both statutes, however; so he can
obtain relief only if the court’s error was a plain error. As
we emphasized in United States v. Paladino, 401 F.3d 471, 483
(7th Cir. 2005), an error that results in an unlawful pro-
longation of the defendant’s prison term is a very serious
error warranting correction as plain error. But an error that
results merely in a concurrent sentence does not do that.
There might be some consequence down the road of having
a second conviction on one’s record, but this is speculative
and in fact unlikely, since the offense conduct was identical
under the two statutes.
  It is true that because a defendant must pay a separate
$100 “special assessment” (paid into the Crime Victims
Fund) for each felony, 18 U.S.C. § 3013(a)(2)(A); 42 U.S.C.
§ 10601(b)(2), concurrent prison sentences do now result in
additional punishment. Rutledge v. United States, 517 U.S.
292, 301-03 (1996); Ray v. United States, 481 U.S. 736, 737
No. 04-1684                                                    7

(1987) (per curiam). But the addition is not a longer prison
sentence but a trivial fee. The erroneous imposition of it is
not a serious enough error to be described as a miscarriage
of justice and thus constitute plain error. United States v.
Gricco, 277 F.3d 339, 350-51 (3d Cir. 2002); United States v.
Jackson, 155 F.3d 942, 947-48 (8th Cir. 1998); see also
United States v. Hernandez, 330 F.3d 964, 982-84 and n. 15
(7th Cir. 2003); United States v. Lafayette, 337 F.3d 1043, 1048-
49 (D.C. Cir. 2003); United States v. Ellis, 326 F.3d 593, 599-
600 and n. 6 (4th Cir. 2003).
  The defendant’s other challenges to his conviction do not
have sufficient merit to require discussion. They are typified
by his complaint that the judge refused to give an eye-
witness instruction. Such an instruction tells the jury that
when a witness claims to have identified the perpetrator of
the crime, the jurors should consider carefully whether the
witness really had the ability and opportunity to make the
identification. There was no eyewitness evidence in this
case. The defendant was masked and the witnesses to the
crime could not identify him. The only evidence against him
was the fingerprint evidence. But it was enough. United
States v. Bush, 749 F.2d 1227, 1229-30 (7th Cir. 1984); Schell v.
Witek, 218 F.3d 1017, 1022-23 (9th Cir. 2000); Taylor v.
Stainer, 31 F.3d 907, 909-10 (9th Cir. 1994).
  The government acknowledges, however, that the defen-
dant’s sentence violated the Sixth Amendment as inter-
preted in the Supreme Court’s decision in United States v.
Booker, 125 S. Ct. 738 (2005). The issue was not raised in the
district court, and therefore the governing standard is again
that of plain error. As it is possible that the judge would
have given the defendant a lighter sentence had she realized
that the federal sentencing guidelines are merely advisory,
we order the limited remand prescribed by United States v.
8                                               No. 04-1684

Paladino, supra, 401 F.3d at 483-85. The bank-robbery
conviction, however, is affirmed.
  Should the district judge decide to resentence the
defendant, she should take the opportunity to vacate his
Hobbs Act conviction. But if she decides not to resentence
him, that conviction too will stand, because as we said the
error was not plain.



A true Copy:
       Teste:

                         _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                   USCA-02-C-0072—4-27-05
