                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-1029

U NITED STATES OF A MERICA,
                                                   Plaintiff-Appellee,
                                  v.

C HARLES O. E UBANKS, also known as
C HUCKIE, also known as T ROUBLE,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Western Division.
           No. 3:07-cr-50058-1—Philip G. Reinhard, Judge.



    A RGUED O CTOBER 26, 2009—D ECIDED JANUARY 28, 2010




 Before B AUER and S YKES, Circuit Judges, and SIMON,
District Judge. 
  S IMON, District Judge. Charles Eubanks pled guilty to
two counts of robbery, 18 U.S.C. § 1951(a), and one



   The Honorable Philip P. Simon, United States District Court
Judge for the Northern District of Indiana, sitting by designa-
tion.
2                                              No. 09-1029

count of using a firearm in furtherance of one of the
robberies, 18 U.S.C. § 924(c). The district court sentenced
Eubanks to 192 months for the two robberies and a con-
secutive 84 months’ sentence for the firearm charge.
Eubanks appeals his sentence on the robbery counts
claiming that the district court incorrectly calculated
his offense levels and criminal history in determining
his guideline sentence. We agree, in part, and vacate
Eubanks’ sentence and remand the case to the district
court for resentencing.


                     I. Background
  Eubanks and four others committed a string of armed
robberies which led to a fifteen-count indictment in
which Eubanks was charged in nine of the counts. Pursu-
ant to a plea agreement, Eubanks pled guilty to two
robberies (Counts 12 and 14), and using and carrying
a firearm during the commission of one of those
robberies (Count 13). As part of his plea agreement,
Eubanks also stipulated to committing the robberies
alleged in Counts 8 and 10 of the indictment.
  Count 12 involved the armed robbery of a beauty
supply store, and Count 13 was the gun charge
associated with that robbery. Here’s what happened:
Eubanks, armed with a plastic B.B. gun, entered the store
with two co-defendants, both packing semi-automatic
handguns. The three men pulled out their guns, pointed
them at store employees, and demanded money from the
cash register. Eubanks and a co-defendant then began
beating the store owner with Eubanks clobbering him in
No. 09-1029                                               3

the head with the B.B. gun causing bruising and lacera-
tions. The injuries required medical attention, including
four staples to the store owner’s head. One of the co-
defendants then forced a store employee at gunpoint to
a back room to retrieve the store’s surveillance video.
Eubanks knew the co-defendants used and carried real
firearms during commission of the robbery.
  In Count 14, Eubanks and two co-defendants were
charged with robbing a small jewelry store. Upon entering
the store, Eubanks hopped over the front counter and
forced a store employee to the ground at gunpoint.
Eubanks then dragged a second store employee about
six feet, from the back room of the store to the front
room, causing minor injuries consisting of scratches and
bruising.
   At the sentencing hearing, the court sentenced Eubanks
to 84 months for Count 13, as the parties agreed in the plea
deal, because both co-defendants used and carried a
firearm during commission of the robbery, and Eubanks
was held responsible for their actions. Regarding the
robberies alleged in Counts 12 and 14, however, the
district court disagreed at times with the agreement the
parties had reached and with the recommendations in
the Presentence Report (PSR).
  The robbery of the beauty supply shop in Count 12
started with a base offense level of 20. The court then
added four levels for otherwise using a dangerous
weapon under U.S.S.G. § 2B3.1(b)(2)(D). The court also
added three levels because a victim sustained injuries
that were somewhere between a “bodily injury” and a
4                                               No. 09-1029

“serious bodily injury” and four levels for abducting the
victim. See U.S.S.G. § 2B3.1(b)(3) and (4). That left a
total offense level of 31 for Count 12, according to the
district court.
  The jewelry store robbery in Count 14 also started
with a base offense level of 20. The district court then
added six levels for otherwise using a firearm (recall that
there was no § 924(c) charge associated with Count 14),
two levels for causing bodily injury, and, again, four
levels for abducting the victim. See U.S.S.G. § 2B3.1(b)(2)-
(4). The total offense level for Count 14 was 32. The
court also found that stipulated Count 8 carried an
offense level of 26 and stipulated Count 10 carried an
offense level of 25.
  Based on these findings, the district court conducted a
unit analysis under U.S.S.G. § 3D1.4 and then subtracted
three levels because Eubanks accepted responsibility,
thus finding that Eubanks’ total offense level was 32.
The district court also determined that Eubanks had
eleven criminal history points, putting him in criminal
history category V. This yielded a recommended range
under the guidelines of 188-235 months. The court sen-
tenced Eubanks to 192 months for Counts 12 and 14, to
be consecutive to the 84-month sentence in Count 13.


                      II. Discussion
  On appeal, Eubanks raises a host of arguments con-
cerning how the district court calculated the offense
levels for the two robbery counts. He contends the district
No. 09-1029                                              5

court incorrectly applied the weapons, injury, and abduc-
tion enhancements for both robberies, and also that the
district court incorrectly calculated his criminal history
points. We review the district court’s factual findings
for clear error and its interpretation and application of
the Sentencing Guidelines de novo. United States v.
Severson, 569 F.3d 683, 689 (7th Cir. 2009). First we will
address each of Eubanks’ arguments, and then we will
determine if any of the errors were harmless.


A. Weapons Enhancements
  The district court tagged Eubanks with a weapons
enhancements for both Counts 12 and 14, and he claims
this was an error. For Count 12, Eubanks argues that the
district court improperly added four levels to his base
offense level under U.S.S.G. § 2B3.1(b)(2)(D) for a danger-
ous weapon “otherwise used” because he hit the store
owner in the head with a plastic B.B. gun during com-
mission of the robbery. This was impermissible double
counting according to Eubanks because he received an
84-month sentence for using and carrying a firearm in
Count 13 pursuant to 18 U.S.C. § 924(c)—the same
conduct at issue in the enhancement. Thus, given that
he was already punished for using a firearm, the
district court could not enhance his sentence for use of
the B.B. gun in the same underlying offense. The govern-
ment agrees with Eubanks. Because Eubanks challenges
the legal interpretation of the Sentencing Guidelines
and relevant statutes, we review de novo. United States v.
White, 222 F.3d 363, 372 (7th Cir. 2000).
6                                               No. 09-1029

  If a defendant is sentenced for using a firearm in fur-
therance of a violent crime under § 924(c), the sentencing
court may not enhance the defendant’s sentence under
the guidelines for the same weapon and conduct that
underlie the § 924(c) conviction. White, 222 F.3d at 373;
U.S.S.G. § 2K2.4, comment (n.4). And the sentence
under § 924(c) accounts for all guns used in relation to
the underlying offense. See White, 222 F.3d at 374 (“[B]e-
cause a § 924(c) penalty accounts for all of the guns pos-
sessed, carried, or used by the defendant in relation to
an underlying offense, a guidelines enhancement cannot
also be imposed for use of more than one gun in the
same underlying offense.”); U.S.S.G. § 2K2.4, comment
(n.4) (instructing sentencing courts not to “apply any
weapon enhancement in the guideline for the under-
lying offense” if “a co-defendant, as part of the jointly
undertaken criminal activity, possessed a firearm
different from the one for which the defendant was
convicted under” § 924(c)). But “a defendant may
receive both the § 924(c) statutory sentence and a guide-
lines enhancement if the enhancement and the statutory
sentence are imposed for different underlying conduct.”
White, 222 F.3d 373.
  Here, the district court held that the firearms that
gave rise to the § 924(c) conviction were different than
the weapon responsible for the enhancement. The district
court reasoned that Eubanks’ sentence under § 924(c) was
for the semi-automatic handguns possessed by the co-
defendants, while the enhancement under U.S.S.G.
§ 2B3.1(b)(2)(D) was for Eubanks’ use of the plastic
B.B. gun. The district court believed this to be permissible
No. 09-1029                                               7

because § 924(c) requires use of a firearm, and, according
to 18 U.S.C. § 921, a B.B. gun is not a firearm. The
district court concluded that because Eubanks could not
have been sentenced under § 924(c) for using the B.B.
gun, his use of the weapon was not subsumed by the
§ 924(c) sentence, and the four-level enhancement was
proper.
  The problem with this analysis is that for enhance-
ment purposes, real guns are treated as indistinguishable
from fake guns. White, 222 F.3d at 375 n.7. To hold other-
wise
    would lead to the perverse result that a defendant
    who uses a real gun and a fake gun in the commission
    of the same offense is eligible to receive a higher
    sentence than a defendant who used two real guns to
    commit the same crime. This is because the former
    defendant could receive both a statutory sentence
    under § 924(c) for the real gun and a Guidelines
    enhancement for the fake gun, while the latter defen-
    dant, whose conduct presents a greater risk of harm,
    could only receive either the statutory sentence or
    the Guidelines enhancement, but not both. We do not
    interpret the Guidelines to produce this result which
    is clearly contrary to their policy and purpose.
Id. If we were to adopt the district court’s reasoning,
Eubanks would be subject to an enhancement under
U.S.S.G. § 2B3.1(b)(2)(D) for otherwise using a plastic B.B.
gun, but would have been precluded from such an en-
hancement if he had beat the store owner with a real
firearm. Such a ruling would not only be contrary to
the policy and purpose of the guidelines, but would lead
8                                             No. 09-1029

to the odd result we cautioned against in White. See also
United States v. Katalinic, 510 F.3d 744, 747-48 (7th Cir.
2007). Thus, the sentence under § 924(c) “account[ed] for
all of the guns possessed, carried, or used” by Eubanks
and the co-defendants in relation to the robbery, in-
cluding the plastic B.B. gun. White, 222 F.3d at 374. So
the district court’s four-level enhancement under U.S.S.G.
§ 2B3.1(b)(2)(D) was impermissible double counting.
   Regarding Count 14, Eubanks argues that the district
court’s six-level weapons enhancement for “otherwise
using” a firearm under U.S.S.G. § 2B3.1(b)(2)(B) was
also improper. Recall that in the jewelry store robbery,
Eubanks hopped over the front counter and pointed his
weapon at a store employee, forcing the employee to the
ground. Eubanks contends that this conduct only war-
ranted a five-level enhancement for brandishing a
firearm, and indeed this is what the parties stipulated to
in the plea agreement. The district court disagreed
holding that because Eubanks pointed the weapon at a
specific victim and put that victim to the ground, he
personalized the threat. The district court felt that this
conduct was “otherwise using” the firearm (a six-level
enhancement), rather than brandishing the firearm (a five-
level enhancement). See U.S.S.G. § 2B3.1(b)(2)(B) and (C).
  The definitions of “brandishing” and “otherwise use” in
the guidelines are largely unhelpful. United States v.
Hernandez, 106 F.3d 737, 741 (7th Cir. 1997). The term
“brandished” means that “all or part of the weapon
was displayed, or the presence of the weapon was other-
wise made known to another person, in order to intimidate
No. 09-1029                                                  9

that person.” U.S.S.G. § 1B1.1, comment (n.1(C)). By
contrast, the guidelines define “otherwise use” as
“conduct [that] did not amount to the discharge of a
firearm but was more than brandishing, displaying, or
possessing a firearm or other dangerous weapon.” U.S.S.G.
§ 1B1.1, comment (n.1(I)). We have previously held
that “pointing a weapon at a specific victim created a
personalized threat of harm,” warranting an “otherwise
use” adjustment. United States v. Warren, 279 F.3d 561,
563 (7th Cir. 2002); United States v. Taylor, 135 F.3d 478, 483
(7th Cir. 1998). Conversely, brandishing typically occurs
where a defendant generally displays a weapon or
points the weapon at a group of people rather than a
specific individual. See Hernandez, 106 F.3d at 741 (noting
the difference between “pointing or waving about a
firearm and leveling the weapon at the head of a vic-
tim”). Because we have no reason to doubt that Eubanks
pointed his weapon at a specific employee and forced
the employee to the ground, the district court’s factual
finding was not clearly erroneous, and the six-level en-
hancement for “otherwise using” the firearm in Count 14
was appropriate. See U.S.S.G. § 2B3.1(b)(2)(B).


B. Injury Enhancements
  Eubanks contests the district court’s application of
injury enhancements for both Counts 12 and 14. He
argues the district court erred by assessing a three-level
enhancement in Count 12 (the beauty supply store rob-
bery) based on a finding that the victim sustained an
injury between bodily injury and serious bodily injury. See
10                                                No. 09-1029

U.S.S.G. § 2B3.1(b)(3). Eubanks contends that the victim’s
injuries in Count 12, which included bruises and lacera-
tions to the victim’s head, were more akin to bodily
injury, warranting a two-level enhancement. Id. He also
argues that the district court erred by increasing two
levels for bodily injury in Count 14 (the jewelry
store robbery). In that robbery, Eubanks dragged a store
employee by her hair causing head pain, scraped and
bloodied knees, bruises on her arms, and damaged finger-
nails and hands. The injuries did not require medical
attention. According to Eubanks, the record shows these
injuries were minor, rather than significant, and thus a
two-level increase was excessive.
  The guidelines define “bodily injury” as “any significant
injury; e.g., an injury that is painful and obvious, or is of a
type for which medical attention ordinarily would be
sought.” U.S.S.G. § 1B1.1, comment (n.1(B)). “Serious
bodily injury” is defined as an injury involving “extreme
physical pain” or “requiring medical intervention such
as surgery, hospitalization, or physical rehabilitation.”
U.S.S.G. § 1B1.1, comment (n.1(L)). As noted, a bodily
injury enhancement requires a two-level increase, while
a serious bodily injury enhancement carries a four-level
increase. U.S.S.G. § 2B3.1(b)(3).
  In Count 12, the district court considered the victim’s
affidavit and a photograph of the victim’s injuries in
determining the extent of the injuries. The court held
that because the bruises and lacerations required
medical attention, including four staples to close the
head wound, and because the victim almost lost con-
No. 09-1029                                                  11

sciousness, the injury fell somewhere in the continuum
between “bodily injury” and “serious bodily injury,” and
so the court assessed a three-level increase. The district
court was well within its discretion in finding that the
injuries were greater than a “significant” but not quite
“serious.” See e.g., United States v. Ledford, 218 F.3d 684, 691
(7th Cir. 2000) (bodily injury where victim suffered
“bruising on her side and arm”); United States v. Bogan,
267 F.3d 614, 624 (7th Cir. 2001) (serious bodily injury
where victim suffered lacerations requiring sutures, a
fractured eye-socket, emotional distress, migraine head-
aches, and the potential loss of teeth). The district court
is in the best position to make this factual determination
after viewing the relevant evidence. See United States v.
Hamm, 13 F.3d 1126, 1128 (7th Cir. 1994) (“Because the
district court hears this evidence, it is by far best-suited
to assess these myriad factors and determine whether a
‘significant injury’ has occurred.”) (quoting United States
v. Lancaster, 6 F.3d 208, 210 (4th Cir. 1993)). The district
court’s three-level enhancement in Count 12 was
entirely appropriate.
  Similarly, in Count 14, the district court examined an
affidavit and photographs of the victim’s injuries in
determining that a bodily injury enhancement was war-
ranted. The court found that the victim’s scrapes and
bruises amounted to significant injuries that were “painful
and obvious.” Our case law supports this finding. See
Ledford, 218 F.3d at 691; Hamm, 13 F.3d at 1127-28 (finding
bodily injury where victim “suffered bumps and bruises
and had the wind knocked out of him as a result of being
hit and knocked down” and “sustained a back injury
12                                              No. 09-1029

requiring chiropractic treatment”). And, once again,
because we largely defer to the district court on this fact-
specific inquiry, absent clear evidence to the contrary,
the finding should not be disturbed on appeal. See Hamm,
13 F.3d at 1128. The two-level bodily injury enhance-
ment in Count 14 was thus proper.


C. Abduction Enhancements
  In a robbery case, the guidelines sensibly punish an
abduction of a victim (a four-point enhancement) more
harshly than a restraint of a victim (a two-point enhance-
ment). See U.S.S.G. § 2B3.1(b)(4). But the line between a
restraint and an abduction is a bit hazy. Eubanks says
that the conduct in Count 12, in which one of the co-
defendants forced an employee to the back of the beauty
supply store to retrieve a surveillance video, was a “re-
straint” not an “abduction.” He also contends that in
the jewelry store robbery in Count 14, where the
victim was dragged less than six feet, the conduct should
likewise have been deemed a restraint instead of
an abduction.
   Under the guidelines, an abduction occurs when “a
victim was forced to accompany an offender to a
different location.” U.S.S.G. § 1B1.1, comment (n.1(A)).
Restraint is “the forcible restraint of the victim such as
by being tied, bound, or locked up.” U.S.S.G. § 1B1.1,
comment (n.1(K)). Here, the issue turns on whether the
store employees were forced to accompany the defendants
to “a different location.” If the answer to that question
is yes, then an abduction occurred. Because this depends
No. 09-1029                                               13

on an interpretation of the Sentencing Guidelines, our
review is de novo. White, 222 F.3d at 372.
  Eubanks argues that forcing an employee to another
room in the same small building warrants only a two-
level enhancement for restraint. Both the PSR and the
government (at least in its briefing in the district court)
agreed that the conduct in both robberies was better
characterized as a restraint rather than an abduction.
Nonetheless, the district court sua sponte held that trans-
porting the victims from one room to another in the
same building—even if they are small retail stores—
satisfied the movement “to a different location” require-
ment, thus warranting a four-level abduction enhance-
ment for both robberies. Recall that in Count 12 (the
beauty supply store robbery) the victim was taken to
the back room to retrieve the surveillance tape while in
Count 14 (the jewelry store robbery) the victim was
dragged about six feet, again from the back room to the
front of the store. The court found that moving an em-
ployee to another room was more serious than keeping
all of the employees in the same room because it
isolated the employee, increasing the likelihood that the
employee would resist and thus increasing the chance
of injury.
  An abduction enhancement is not supported by this
Circuit’s case law. In United States v. Carter, 410 F.3d 942,
954 (7th Cir. 2005), we held that forcing a bank teller at
gunpoint from the back vault to her drawer against her
will constitutes a restraint. And in a similar case, we
held that a restraint enhancement was appropriate
14                                               No. 09-1029

where the defendant directed three bank tellers to a small
room in the back of the bank at gunpoint. United States v.
Doubet, 969 F.2d 341, 346 (7th Cir. 1992); see also United
States v. Nelson, 137 F.3d 1094, 1112 (9th Cir. 1998)
(“[O]rder[ing] a jewelry store employee and customer to
the back room at gunpoint . . . constitutes physical re-
straint.”). By contrast, forcing a bank employee at gun-
point from a parking lot into the bank warranted a four-
level enhancement for abduction. United States v. Taylor,
128 F.3d 1105, 1110-11 (7th Cir. 1997); see also United
States v. Gall, 116 F.3d 228, 230 (7th Cir. 1997) (abduction
enhancement proper where victims were forced at gun-
point into trucks and drove around “a significant dis-
tance”); United States v. Davis, 48 F.3d 277, 279 (7th Cir.
1995) (forcing victim at gunpoint from parking lot to
inside the credit union satisfied abduction requirement).
  The district court relied on a recently decided Fourth
Circuit case, United States v. Osborne, 514 F.3d 377 (4th Cir.
2008), in finding the abduction enhancements applica-
ble. In Osborne, the Fourth Circuit began by finding the
“absence of movement across a building threshold or
property line does not bar the conclusion that movement
‘to a different location’ occurred.” Id. at 389. Instead, it
adopted a more flexible, case by case approach that did not
mechanically rely “on the presence or absence of door-
ways, lot lines, thresholds, and the like.” Id. at 389-90
(internal quotations omitted). From there, the Osborne
court held that the defendant’s forced movement of
Walgreens employees from the pharmacy section through
the store area to the front door of the Walgreens building
amounted to abduction under the guidelines. Id. at 391. In
No. 09-1029                                               15

so finding, the court relied heavily on the fact that the
defendant forced the victims to accompany him so he
could “keep[ ] [the] victims close by as readily
accessible hostages.” Id. at 390.
  The facts here are significantly different from Osborne. In
Osborne, the defendant forced store employees from an
independent section of the store, which was separated
by a secured door and only accessible by authorized
persons via keypad, through the entire building and out
to the front door. More importantly, the victims in
Osborne were essentially taken hostage to facilitate the
defendant’s escape—which is the type of conduct
“plainly targeted by the abduction enhancement.” Osborne,
514 F.3d at 390. But in Count 12, a co-defendant forced
a store employee to the back room of a retail beauty
supply store to retrieve a surveillance video. And in
Count 14, the victim was moved no more than six feet.
Thus, the distance and nature of the confinements in
this case were materially different than in Osborne.
  We think that this case is indistinguishable from cases
such as Carter and Doubet. Under these facts, and
taking into account the physical dimensions of the struc-
tures at issue, transporting the victims from one room to
another is simply not enough for abduction. To find
otherwise would virtually ensure that any movement
of a victim from one room to another within the same
building, without any other aggravating circumstances,
would result in an abduction enhancement. While there
may well be situations in which an abduction enhance-
ment is proper even though the victim remained within
16                                              No. 09-1029

a single building, those facts are not present here. Thus,
the district court erred by enhancing Eubanks’ offense
levels four points for Counts 12 and 14. Instead, these
counts should be enhanced two levels each for restraint.


D. Criminal History
   Finally, Eubanks challenges the district court’s determi-
nation that his criminal history points totaled eleven,
putting him in criminal history category V. At issue is
whether the district court correctly assessed four points
for two juvenile offenses. The first offense occurred in
July 2001, when Eubanks was charged with theft of a
firearm and placed on probation. Then in May 2002, he
was charged with two counts of armed robbery and one
count of aggravated robbery. For these offenses, his
probation for the theft of a firearm offense was revoked,
and Eubanks was sentenced to the Illinois Department of
Corrections on October 24, 2003. He was paroled on
June 29, 2004. All offenses were adjudicated under the
same case number. The district court assessed two points
for the theft of the firearm and two points for the armed
robbery offenses because the incidents were separate
offenses under the guidelines.
  Eubanks argues that the district court double counted
by giving him four points—two for the theft of firearms
offense and two more for the armed robbery. He
believes that he should have only been given a total of
two points because the armed robbery is what led to his
probation being revoked for the theft of firearms offense.
Not so. The underlying conviction is the theft of the
No. 09-1029                                                17

firearm in 2001. This is the offense that landed Eubanks
on probation. The theft of the firearm and the revocation
of probation are thus a single conviction—indeed, they
are listed as such on Eubanks’ juvenile docket sheet.
See U.S.S.G. § 4A1.2(k), comment (n.11); United States v.
Palmer, 946 F.2d 97, 99 (9th Cir. 1991) (holding the “sen-
tence on the underlying conviction and on the
revocation of probation is considered a ‘single convic-
tion’ ”). Because Eubanks received a sentence of more
than sixty days on the revocation, he was properly
assessed a two-level enhancement in his criminal history
score.
  The armed robbery—the offense that led to the revoca-
tion of his probation—was a separate, unrelated offense.
The district court correctly computed this offense
separate from the revocation offense for the purpose of
criminal history points, despite the fact the offenses
were all adjudicated under the same juvenile case number.1
Indeed, “[p]rior sentences always are counted separately
if the sentences were imposed for offenses that were
separated by an intervening arrest.” U.S.S.G. § 4A1.2(a)(2).
Merely because Eubanks was sentenced for these
offenses on the same day does make them one charge for
criminal history purposes. See e.g., United States v. Statham,
581 F.3d 548, 554-55 (7th Cir. 2009) (district court properly


1
   In fact, Eubanks’ docket sheet states that the sentence for
the armed robbery offenses was to run “concurrent” meaning
that the sentence for the armed robbery offenses was a dif-
ferent offense from the revocation of probation/theft of the
firearm sentence.
18                                              No. 09-1029

assigned separate criminal history points for multiple
offenses sentenced on the same day, with two of the
sentences running concurrent, “because each offense was
separated by an intervening arrest and the events and
victims involved in the three cases were completely
different.”). So Eubanks was correctly given an additional
two-point increase in his criminal history score for the
armed robbery.
  Eubanks contends, however, that the five-year statute
of limitations under U.S.S.G. § 4A1.2(d)(2)(B) precludes
an enhancement for the theft of a firearm charge. But
U.S.S.G. § 4A1.2(d)(2)(A) is the applicable section here
because Eubanks’ juvenile sentence exceeded sixty
days, and under that provision the clock starts when a
defendant is released from confinement. See U.S.S.G.
§ 4A1.2(d)(2)(A). Because Eubanks was released from
confinement in June 2004 for the theft of firearm and
armed robbery charges, and the instant offenses occurred
in July 2007, the offenses fall within the five-year statute
of limitations. Consequently, the district court correctly
calculated Eubanks’ criminal history.


E. The Errors Were Not Harmless
  As detailed above, the district court improperly
applied the guidelines in calculating Eubanks’ sentence.
But the government contends that any errors were harm-
less. “To prove harmless error, the government must be
able to show that the guidelines error did not affect the
district court’s selection of the sentence imposed.” United
No. 09-1029                                               19

States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009) (internal
quotations omitted).
  In determining whether the above errors were
harmless, we must first establish whether the district
court’s guideline sentence fell within the properly calcu-
lated guideline range. Counts 12 and 14 both start with
a base offense level of 20. Count 12 should be enhanced
three levels for the victim’s injuries and two levels for
restraint, for a total offense level of 25. Count 14 should
be increased six levels for otherwise using a firearm,
two levels for bodily injury, and two levels for restraint.
This leaves a total offense level of 30 for Count 14.
  Because there are multiple counts we must determine
the combined offense level under U.S.S.G. § 3D1.4. The
combined offense levels for each group are 30 (Count 14),
25 (Count 12), 26 (Count 8), and 25 (Count 10). See U.S.S.G.
§ 1B1.2(c), comment (n.3) (counting stipulated offenses
in plea agreements in computing the combined offense
level). Pursuant to the unit analysis in U.S.S.G. § 3D1.4,
Count 14 is assigned one unit as the group with the
highest offense; Count 8 is given one unit because it is
within four levels of the group with the highest offense
level (i.e., Count 14); one-half units are given for both
Counts 12 and 10 because they are more than four levels
below the highest offense level. See U.S.S.G. § 3D1.4(a) and
(b). Since there is a total of three units, three offense
levels are added to the group with the highest score
(again, Count 14). So after conducting the appropriate
unit analysis, the offense level for all conduct is 33.
After subtracting three levels for acceptance of responsibil-
20                                              No. 09-1029

ity, see U.S.S.G. § 3E1.1, Eubanks’ combined offense level
is 30.
  Offense level 30 and criminal history category V yields
a guideline range of 151-188 months. The district court’s
192-month guideline sentence is thus outside the ap-
plicable range—albeit only by four months. And while the
district court specifically stated that it would have given
the same sentence even if it found restraint rather than
abduction in Counts 12 and 14, this did not account for
the erroneous four-level enhancement for otherwise
using a dangerous weapon under U.S.S.G. § 2B3.1(b)(2)(D)
in Count 12. Moreover, the district court did not
provide any reason for giving a non-guideline sentence.
See United States v. Carter, 538 F.3d 784, 789 (7th Cir.
2008) (“If the sentence imposed is outside the guide-
lines range, the district court must provide a justification
that explains and supports the magnitude of the vari-
ance.”) Therefore, because the district court’s errors in
calculating the guideline range may have affected the
sentence imposed, the above errors are not harmless.


                   III. CONCLUSION
  For the reasons discussed above, we V ACATE the sen-
tence and R EMAND for resentencing consistent with this
opinion.




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