                         NONPRECEDENTIAL DISPOSITION
                 To be cited only in accordance with Fed. R. App. P. 32.1


                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                                Argued August 9, 2017
                                Decided August 24, 2017

                                         Before

                            DANIEL A. MANION, Circuit Judge

                            MICHAEL S. KANNE, Circuit Judge

                            DIANE S. SYKES, Circuit Judge

No. 17-1441

UNITED STATES OF AMERICA,                         Appeal from the United States District
     Plaintiff-Appellee,                          Court for the Northern District of Illinois,
                                                  Eastern Division.
      v.
                                                  No. 1:13-CR-00600-3
CHARLES HARPER,
    Defendant-Appellant.                          Samuel Der-Yeghiayan,
                                                  Judge.


                                       ORDER

       Charles Harper pleaded guilty to attempted armed robbery. At sentencing he
argued that he should serve his prison sentence for this conviction concurrently with a
state prison sentence for a different armed robbery, but the district judge ordered that
these sentences run consecutively. On appeal Harper contends that the judge did not
adequately justify his sentence which, he says, effectively exceeded the range
recommended by the Sentencing Guidelines. Because the district judge imposed a
within-range sentence and sufficiently explained his reasons, we affirm.
No. 17-1441                                                                       Page 2


       Charles Harper made a career out of robbing jewelry stores. In 2011 he attempted
to rob one such store in Chicago. After entering the store, he offered to sell jewelry to
the store owner. When the owner began to walk toward the back to examine it, Harper
leaped over the counter and drew his gun on the owner. Harper ripped off and
pocketed the store owner’s necklace and then dragged him to the back of the store.
Harper then rushed to the front of the store and, upon finding the front door locked,
shot out a window and escaped.

       Harper had larger hauls from robbing other jewelry stores. In 2010 and 2011, he
and his associates knocked off jewelry stores in Homer Glen, Illinois; Toledo, Ohio; and
Orland Park, Illinois. One day after the Orland Park robbery, Harper was arrested.
About 16 months later, in 2013, he pleaded guilty in the Circuit Court of Cook County
to armed robbery for the hit on the Orland Park jewelry store and was sentenced to
22 years’ imprisonment (though he was expected to be eligible for parole in 2022).

       In 2015 Harper was indicted by a federal grand jury for both the attempted
robbery in Chicago and the other robberies that he carried out. He was charged in a
third superseding indictment with conspiring to commit Hobbs Act robbery 1 (for the
robberies in Homer Glen and Toledo and the attempted robbery in Chicago), in
violation of 18 U.S.C. § 1951(a) (counts one and two); attempting to commit Hobbs Act
robbery (for the attempted robbery of the Chicago jewelry store) in violation of
§ 1951(a) (count three); and using a firearm while committing a crime of violence (the
attempted armed robbery in Chicago) in violation of 18 U.S.C. § 924(c)(1)(A) (count
four). Harper spent 21 months in federal custody, during which time he “participated in
a proffer interview” with the FBI (without agreeing to “formally cooperate with the
government”) and pleaded guilty to the third and fourth counts.

       Roughly four months after Harper pleaded guilty, the parties agreed that the
§ 924(c) offense in count four carried at least a 10-year sentence, to be served
consecutively to any other sentence imposed, and that the advisory guidelines range for
count three was 57–71 months (based on his offense level of 19 and criminal history
category of V).



1
  Hobbs Act robbery is robbery that “in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in commerce.” 18 U.S.C.
§ 1951(a).
No. 17-1441                                                                         Page 3


       The central issue at sentencing was whether Harper’s prison term for count three
should run consecutively or concurrently to the prison term for his state court
conviction. See 18 U.S.C. § 3584(a); U.S.S.G. § 5G1.3(d). In making this decision, the
sentencing judge needed to consider the 18 U.S.C. § 3553(a) factors. See 18 U.S.C.
§ 3584(b); United States v. Sandidge, 784 F.3d 1055, 1065 (7th Cir. 2015).

        In his sentencing memorandum, Harper argued that he should serve his prison
term for count three concurrently with his state term because he was “not as dangerous
as his record would suggest.” He pointed to the statement of an FBI agent working on
his case that he was not an “inherently violent individual.” And during all his
robberies, he noted, he fired only a single gunshot—and that was aimed not at a person
but at the window of the Chicago jewelry store. At the sentencing hearing, counsel
added that Harper’s poor health—he was suffering from gout, severe gallstones, and an
unspecified knee injury—made it unlikely that he would be a threat to society after
15 years’ imprisonment (the remaining five years of his state term followed by ten years
for count four), when he would then be roughly 58.

       The government urged that the § 3553(a) factors supported Harper’s serving
consecutive sentences. It emphasized the seriousness of Harper’s robberies—both those
carried out and the one attempted—because he used guns to threaten his victims, stole
valuable jewelry, and the Chicago heist in particular placed bystanders at risk because
he shot out a window. Deterrence, the government added, had not stopped him from
living a life of crime, 2 and a consecutive prison term would better protect the public
from his criminal activity. Lastly the government asserted that a consecutive term
would ensure that his sentence reflected the seriousness of his crime, lest he receive a
“pass” for the attempted armed robbery conviction.

       The district judge imposed a prison term of 60 months on count three and a term
of 120 months on count four, both to run consecutively to one another and to his state
prison term, as well as three years’ supervised release. The judge justified this sentence
by emphasizing Harper’s extensive criminal history, the seriousness of his attempted

2
  Harper was arrested 27 times as a juvenile and 40 times as an adult and convicted of
the following crimes: armed robbery, theft (four times), burglary, attempted burglary,
unlawful use of a firearm (twice), assault, animal cruelty, drug dealing, and receiving
and possessing a stolen car.
No. 17-1441                                                                          Page 4


robbery of the Chicago jewelry store, and the need to protect the public from him and to
deter Hobbs Act robbery. In explaining his reasons for ordering that the prison term for
count three run consecutively to the state prison term, the judge stated “There’s not
sufficient justification based on the record to impose a concurrent sentence.”

        On appeal Harper raises three challenges to the district court’s imposition of a
consecutive, rather than concurrent, 60-month prison term on count three. First he
contends that the district court did not adequately justify this term of imprisonment
which, he says, extends his sentence roughly five years above the guidelines range of
177–191 months. Harper arrives at this estimation by adding the 68 months left on his
state sentence to the 60-month prison term on count three and the 120-month term on
count four.

        Harper misapprehends how the guidelines affect his sentence. His 60-month
prison term on count three falls within the guidelines range of 57–71 months for this
conviction. Harper acknowledged in his sentencing memorandum that this range
reflected the guidelines’ recommended sentence. The district judge had the discretion to
impose this term consecutively to the state court sentence. See 18 U.S.C. § 3584(a);
U.S.S.G. § 5G1.3(d); United States v. Orozco-Sanchez, 814 F.3d 844, 850–51 (7th Cir. 2016);
United States v. Roman-Diaz, 853 F.3d 591, 597–98 (1st Cir. 2017). The guidelines
recommend that a defendant receive a federal prison sentence concurrent to an
undischarged or anticipated state prison term when a state offense is relevant conduct
for a federal offense, see U.S.S.G. § 5G1.3(b), (c), United States v. Schrode, 839 F.3d 545,
550–51 (7th Cir. 2016), but the Orland Park robbery was not relevant conduct for the
Chicago attempted robbery. See Orozco-Sanchez, 814 F.3d at 850–51; Roman-Diaz, 853
F.3d at 598.

       Moreover the district judge, as directed by 18 U.S.C. § 3584(b), justified his ruling
with reference to the § 3553(a) factors. Regarding Harper’s history and characteristics,
No. 17-1441                                                                         Page 5


the judge catalogued his extensive criminal history 3 and noted his difficult childhood. 4
Regarding the need for the sentence to reflect the seriousness of the offense, the judge
emphasized that Harper placed bystanders “at great risk” by firing his gun during the
Chicago holdup. The judge added that Harper and others needed to be deterred from
committing armed robberies, and the public needed to be protected from him (as
reflected in the Chicago attempted robbery when he shot his gun). And to the extent
that Harper needed medical care after getting treatment in state prison, the judge noted
that he could receive it in federal prison.

        Second, Harper argues that the court, in imposing the consecutive sentence,
failed to consider one of the application notes to U.S.S.G. § 5G1.3 that addresses alleged
sentencing disparities created by fortuities in the timing of federal and state
prosecutions. He cites application note 4(E), which states that a downward departure
from a guidelines range may be appropriate in an “extraordinary case,” such as when
the sequence of separate prosecutions for crimes that have overlapping partially
relevant conduct extends the length of a defendant’s time in prison. See U.S.S.G. § 5G1.3
cmt.4(E). In Harper’s view, had he been convicted in state court of both the Orland Park
armed robbery and the Chicago attempted armed robbery, then “concurrent sentencing
would have been mandatory.” He adds that, had he been sentenced in federal court for
the Chicago attempted armed robbery before being sentenced in state court for the
Orland Park robbery, concurrent sentencing also would have been mandatory.

       This case, however, is not “extraordinary.” According to the example in
application note 4(E), an “extraordinary case” can involve a defendant who already has
served substantial time in prison for an offense encompassing the same partially
relevant conduct as the instant offense. See U.S.S.G. § 5G1.3 cmt.4(E). But Harper’s
robberies of the Chicago and Orland Park jewelry stores do not have overlapping
partially relevant conduct because they were different heists involving different victims

3
  The judge pointed to Harper’s “prior convictions and arrests for receiving, possessing,
and selling a stolen vehicle, burglary, disorderly conduct, criminal trespass, attempted
possession of a controlled substance, attempted possession of cannabis, assault, cruelty
to animals, owning animals for sport fighting, being a felon in possession of a firearm,
unlawful use of a weapon and possession of cannabis.”
4 Harper grew up in the Cabrini Green housing projects, and both of his parents used

drugs, which made money “always tight” and resulted in he and his siblings often not
having “proper clothing, shoes, or school supplies.”
No. 17-1441                                                                             Page 6


that occurred more than one month apart. Further, he has not identified anything
extraordinary about his case. As a final matter, he overlooks the discretion afforded to
Illinois sentencing judges to impose consecutive prison terms, if necessary to protect
public safety. See 730 ILCS 5/5-8-4(c)(1). See also, e.g., People v. Johnson, 43 N.E.3d 1253,
1257 (Ill. App. Ct. 2015).

       Third, Harper contends that the district judge ignored his argument that upon
leaving prison, his advanced age (he would be about 58) would make it unlikely that he
would recidivate. The district judge indeed said little at sentencing, but he did say
enough when he acknowledged that he had “considered the defendant’s age.”

        Finally, Harper urges that the proceedings be remanded so that the district court
could consider a sentencing argument that he “erroneously withdr[ew] as moot.” He
refers to his supposed eligibility for a downward departure based on the time he spent
in federal custody between 2015 and 2017; this eligibility, he says, was the basis for an
argument that he did not press at sentencing because the concurrent sentence he sought
would have rendered the matter moot. He contends that the district court committed
procedural error by not addressing this argument.

        The district court did not err because Harper never raised this argument in the
district court. He did not mention any such argument in his sentencing memorandum
or at the sentencing hearing. As Harper notes, his attorney at sentencing thought it
“moot” whether Harper received a downward departure for his time in federal custody
if he received “a guideline sentence on Count 3 and assuming that it’s concurrent.” The
court permissibly did not comment upon this statement, which merely was an
observation rather than a mitigation argument that the district court needed to discuss.
See United States v. Donelli, 747 F.3d 936, 940 (7th Cir. 2014).

                                                                                  AFFIRMED.
