United States of America v. Davario McDowell

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 9, 2026
Decided June 11, 2026
Before
MICHAEL B. BRENNAN, Chief Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
REBECCA TAIBLESON, Circuit Judge
No. 25-1370
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVARIO MCDOWELL,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:23-CR-00135(4)
Manish S. Shah,
Judge.
O R D E R
Davario McDowell pleaded guilty to carjacking, 18 U.S.C. § 2119, Hobbs Act
robbery, id. § 1951, and using a firearm in furtherance of a crime of violence (Hobbs Act
robbery), id. § 924(c), and the district court imposed 216 months’ imprisonment. He
appeals, but his appointed counsel asserts that the appeal is frivolous and moves to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief details the
nature of the case and discusses issues that an appeal of this kind might be expected to
involve. Because the analysis appears thorough, we limit our review to the subjects that
counsel discusses and that McDowell raises in the response he filed under Circuit
Rule 51(b). See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 25-1370 Page 2
BACKGROUND
Over the course of two days in September 2022, McDowell and several
codefendants committed a series of carjackings and robberies. The government charged
McDowell with conspiracy to commit Hobbs Act robbery and carjacking, 18 U.S.C.
§§ 371, 1951, 2119 (Count 1); carjacking, id. § 2119 (Count 2); and Hobbs Act robbery, id.
§ 1951 (Count 4). The government also charged McDowell with two counts of using a
firearm in furtherance of a crime of violence, id. § 924(c), one in connection to the
carjacking (Count 3) and one in connection to the Hobbs Act robbery (Count 5). In a
written plea agreement, McDowell agreed to plead guilty to Counts 2 (carjacking), 4
(Hobbs Act robbery), and 5 (using a firearm in furtherance of Hobbs Act robbery). He
also admitted to committing three “stipulated offenses,” referring to two carjackings
and one attempted carjacking from the same spree.
During the plea hearing, McDowell confirmed that he understood the nature of
the charges, the applicable penalties, and the rights he was giving up by pleading
guilty. The court did not specifically state that McDowell had the right to “persist” in
his existing plea of not guilty, F ED. R. C RIM . P. 11(b)(1)(A), but it did inform him that he
had the right to plead not guilty and that a guilty plea would waive his trial rights.
McDowell had previously pleaded not guilty at his arraignment, and the written plea
agreement stated that McDowell had the “right to persist in a plea of not guilty.” The
court accepted McDowell’s guilty plea after finding the factual basis sufficient.
The presentence investigation report (PSR) calculated a guidelines range of 151
to 188 months. For Count 2, McDowell’s adjusted offense level was 30, including a six-
level enhancement for use of a firearm, U.S.S.G. § 2B3.1(b)(2)(B). For Count 4, the
adjusted offense level was 27, including a two-level enhancement for physical restraint,
id. § 2B3.1(4)(A), and a five-level enhancement for causing bodily injury,
id. § 2B3.1(b)(3)(C). The enhancements were based on one of McDowell’s codefendants
holding a cashier at gunpoint, hitting her with his gun, and forcing her into a back
room. Count 5 did not receive a guideline calculation because, under U.S.S.G.
§ 2K2.4(b), the guideline sentence for a conviction under § 924(c) is a mandatory
consecutive five-year term. And the three stipulated offenses each received an adjusted
offense level of 28. The probation officer then applied a multiple count adjustment
under U.S.S.G. § 3D1.4, adding four levels to the highest offense level of 30. The officer
reduced the offense level by three for acceptance of responsibility, so the final offense
level was 31. With an offense level of 31 and a criminal-history category of IV, the final

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No. 25-1370 Page 3
guidelines range was 151 to 188 months. The PSR recommendation also included the
84-month mandatory sentence for Count 5 and 1 to 3 years of supervised release.
At the sentencing hearing, the court adopted the guidelines calculation.
McDowell objected to the five-level enhancement on Count 4 for the cashier’s injuries,
arguing that because the injuries were neither “substantial” nor “permanent,” a four-
level enhancement was more appropriate. The court sustained the objection and
imposed a four-level enhancement, but McDowell’s offense level and final guidelines
range remained the same.
McDowell also objected to a proposed condition of supervised release, arguing
that his probation officer should not be permitted to visit him at work or school. The
court overruled the objection, explaining that any concern was mitigated by the
requirement that probation visits be “reasonable,” and that the condition was necessary
to ensure his compliance and the safety of the probation officer.
The district court then heard from McDowell and considered the factors under
18 U.S.C. § 3553(a), noting the seriousness of the offense, the need for general and
specific deterrence, and McDowell’s lengthy criminal history. The court also
acknowledged McDowell’s arguments in mitigation. The court imposed 216 months’
imprisonment: For Counts 2 and 4, it imposed 132 months, to be served concurrently,
and for Count 5, it imposed 84 months, to be served consecutively.
ANALYSIS
In his Anders brief, counsel tells us that he advised McDowell about the risks and
benefits of challenging his guilty plea, and McDowell wishes to challenge it. Counsel
therefore properly discusses potential challenges to the validity of the plea.
See United States v. Larry, 104 F.4th 1020, 1022 (7th Cir. 2024). Because McDowell did not
move to withdraw his plea in the district court, we would review the court’s acceptance
of the plea for plain error. See United States v. Collins, 986 F.3d 1029, 1030 (7th Cir. 2021).
We agree with counsel that McDowell cannot raise any nonfrivolous challenge to
his guilty plea. The district court determined that McDowell was competent to enter a
plea, and it confirmed that he understood the charges against him, the possible
penalties, and the rights he was waiving by pleading guilty. See F ED. R. C RIM .
P. 11(b)(1)(B)–(O). And counsel correctly notes that although the district court did not
explicitly tell McDowell that he had a right to persist in his plea of not guilty, see F ED. R.

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No. 25-1370 Page 4
C RIM . P. 11(b)(1)(A), McDowell cannot plausibly argue that he was not apprised of this
right, because the district court told him he had the right to plead not guilty and the
plea agreement stated that he had a right to persist in his initial plea. See United States v.
Adams, 746 F.3d 734, 746–47 (7th Cir. 2014).
Counsel also considers whether Hobbs Act robbery qualified as a predicate
“crime of violence” to support McDowell’s conviction under § 924(c) given the Supreme
Court’s decision in Borden v. United States, 593 U.S. 420 (2021). But this court has
concluded that even after Borden, a completed Hobbs Act robbery is a crime of violence.
See United States v. Claybron, 88 F.4th 1226, 1229 (7th Cir. 2023) (collecting cases).
Counsel next rightly concludes that McDowell could not raise a nonfrivolous
challenge to the district court’s calculation of his guidelines range. The district court
agreed with McDowell’s only objection, lowering from five levels to four levels the
enhancement for bodily injury on Count 4. See U.S.S.G.§ 2B3.1(b)(3)(E). And McDowell
affirmed that the guidelines calculation was accurate after the court incorporated his
objection, so he has waived any challenge to the calculation of the guidelines range.
See United States v. Boyle, 28 F.4th 798, 802 (7th Cir. 2022).
While McDowell waived his challenge to the calculations, counsel still considers
several possible arguments, all of which he correctly determines are frivolous. He first
questions whether the court erred by failing to group McDowell’s offenses when
calculating the guidelines. But U.S.S.G. § 3D1.2(d) specifically excludes from grouping
all offenses categorized under U.S.S.G. § 2B3.1.
Counsel next considers whether McDowell could challenge the two-level
enhancement on Count 4 for restraining the cashier during the convenience-store
robbery. Counsel suggests that application of the enhancement may have been
inappropriate where the record revealed only that the cashier had been forced to move
at gunpoint. See United States v. White, 80 F.4th 811, 819 (7th Cir. 2023) (being held at
gunpoint is “purely psychological coercion,” which U.S.S.G. § 2B3.1(b)(4)(B) excludes).
But even if the district court erred by applying the physical-restraint enhancement, the
error was harmless. Without the enhancement, the adjusted offense level on Count 4
would have been 25. Because the adjusted offense level would have been five levels less
serious than the highest offense level of 30, McDowell would have received only one-
half unit for Count 4, instead of the one unit he received. And while this would have
reduced the total units from four to three and a half, McDowell’s offense level still
would have been increased by four levels. See U.S.S.G. § 3D1.4.

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No. 25-1370 Page 5
Counsel also questions whether McDowell could argue that Count 2 (carjacking)
and Stipulated Offenses 1, 2, and 3 should not have been enhanced based on his use of a
firearm. Counsel considers whether McDowell’s conviction under § 924(c) for using a
firearm in furtherance of Hobbs Act robbery should have precluded application of the
firearm enhancements on the other crimes. Specifically, counsel says that if McDowell
made one continuous choice to possess the same firearm during the crime spree, the
§ 924(c) conviction might preclude application of the firearm enhancements.
See United States v. Evans, 74 F.4th 833, 839 (7th Cir. 2023); U.S.S.G. § 2K2.4. But counsel
correctly concludes that this argument would be frivolous because the carjackings and
the robbery occurred on two separate days rather than as one “continuing choice across
[multiple] predicate offenses.” See Evans, 74 F.4th at 839. Moreover, McDowell
brandished the firearm during each individual carjacking and the robbery, reflecting his
separate decisions to use the firearm during each offense.
Counsel also correctly concludes that an argument that the court failed to
consider McDowell’s arguments in mitigation would be frivolous. In his Rule 51(b)
response, McDowell proposes arguing that the court should have considered factors
like his youth at the time of the offenses and his traumatic upbringing. But McDowell
affirmed at the sentencing hearing that the court adequately addressed all of his
mitigation arguments, foreclosing any argument along these lines. See United States v.
Donelli, 747 F.3d 936, 941 (7th Cir. 2014).
McDowell also expressed his belief to counsel, and in his Rule 51(b) response,
that the district court exhibited bias during sentencing. McDowell points to the court’s
comment that it was imposing a higher sentence because it wanted to “send a message”
to others who would be tempted to commit similar crimes. But counsel correctly
concludes that an argument along these lines would be frivolous where 18 U.S.C.
§ 3553(a)(2)(B) allows courts to consider general deterrence in imposing a sentence.
See United States v. Saldana-Gonzalez, 70 F.4th 981, 986 (7th Cir. 2023).
Next, counsel considers and appropriately rejects an argument that the sentence
is substantively unreasonable. McDowell proposes arguing that the district court failed
to consider the risk of unwarranted sentencing disparities because his codefendants
with lengthier criminal histories received lower sentences. But McDowell does not
provide any details about his codefendants’ sentences or their criminal histories.
Moreover, McDowell’s sentences for Counts 2 and 4—132 months to be served
concurrently—were below his guidelines range of 151 to 188 months. The total sentence
of 216 months also included a mandatory consecutive 84-month term. See 18 U.S.C.

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No. 25-1370 Page 6
§ 924(c)(1)(A)(ii). We presume that below-guidelines and within-guidelines sentences
are reasonable. See United States v. Melega, 173 F.4th 907, 914 (7th Cir. 2026); United States
v. Williams, 85 F.4th 844, 847 (7th Cir. 2023). And the court adequately justified the
sentence based on the factors in § 3553(a), including by discussing McDowell’s criminal
history and the need to deter McDowell and others from going on a “rampage of
robberies and violence in Chicago.”
Counsel also rightly concludes that McDowell could not raise a nonfrivolous
challenge to the conditions of supervised release or amount of restitution. Before
sentencing, McDowell received the presentence investigation report, which set forth the
restitution amount. He did not object, so any argument is waived. See United States v.
Harris, 102 F.4th 847, 851–52 (7th Cir. 2024). As to McDowell’s conditions of supervised
release, he objected to the condition allowing his probation officer to visit him at school
or work. But the district court adequately explained the need for the condition in
relation to the goals of probation and rehabilitation. See United States v. Douglas,
806 F.3d 979, 986 (7th Cir. 2015). The court said the condition would ensure that
McDowell is “where he’s supposed to be when he’s supposed to be there,” and
explained that sometimes work or school is “the safest place to visit a person on
supervision.” See, e.g., United States v. Armour, 804 F.3d 859, 870 (7th Cir. 2015)
(permitting probation officer to do home visits is not abuse of discretion).
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

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