United States of America v. Yashmine Odom

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 17, 2024
Decided May 21, 2024
Before
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-2148
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
YASHMINE ODOM,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Western Division.
No. 3:19-CR-50047(4)
Philip G. Reinhard,
Judge.
O R D E R
Yashmine Odom pleaded guilty to conspiracy to commit Hobbs Act robbery and
to committing one robbery. See 18 U.S.C. § 1951(a). The district court sentenced him to
50 months in prison and 3 years of supervised release, and ordered him jointly and
severally liable with his codefendants for $42,090.60 in restitution. Odom appeals, but
his appointed attorney asserts that the appeal is frivolous and moves to withdraw.
See Anders v. California, 386 U.S. 738 (1967). Counsel’s brief explains the nature of the
case and addresses potential issues that an appeal of this kind would typically involve.
Odom did not respond to counsel’s motion. See C IR . R. 51(b). Because counsel’s analysis
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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appears thorough, we limit our review to the subjects identified in the brief. See United
States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Odom conspired with at least five associates to rob two electronics stores in 2016.
The robberies were part of a larger scheme in which the leader of the conspiracy
instructed Odom and others to commit the robberies, then took the stolen merchandise
and sold it for profit. At one robbery (which was a predicate act for the conspiracy
charge), Odom acted as a getaway driver, staying outside the store while his
codefendants forced employees into a back room and stole approximately $50,000
worth of cell phones and computers. During the second robbery (the subject of Odom’s
robbery charge), Odom entered the store with his codefendants, forced the employees
into a back room and then pepper-sprayed one of them, and stole two computers. A
codefendant who stayed outside the store during the robbery was met with an
employee who was returning to work from a break and apparently calling the police;
the codefendant punched the employee in the face.
Odom later entered into a plea agreement under which he would plead guilty to
both charges in exchange for the government recommending a sentence at the low end
of the applicable range under the Sentencing Guidelines. The preliminary calculations
in the agreement incorrectly predicted that Odom’s adjusted offense level would be 21,
corresponding to a guidelines range of 37 to 46 months’ imprisonment. But Odom
agreed that the calculations were non-binding and that he was not entitled to rely on
them. At the change-of-plea hearing, the district court held a detailed colloquy in which
it reiterated that Odom would be unable to withdraw his guilty plea if his sentence
ended up diverging from the preliminary, non-binding calculations in the plea
agreement. Odom agreed, and the court accepted his guilty plea.
At the sentencing hearing, the court largely adopted the guidelines calculations
in the presentence investigation report (PSR). The charges were not grouped together
because the Guidelines prohibit grouping convictions to which U.S.S.G. § 2B3.1 applies.
See U.S.S.G. § 3D1.2. Both convictions had a base offense level of 20 under § 2B3.1(a).
Odom’s offense level for the conspiracy conviction received a one-level increase because
the amount of loss in the first robbery was more than $20,000 and less than $95,000.
See id. § 2B3.1(b)(7)(B). His robbery conviction received a two-level increase because two
victims were injured (one was pepper-sprayed, another was punched). See id.
§ 2B3.1(b)(3)(A). The only change the court made was to an adjustment for physically
restraining a person to facilitate the robberies. See id. § 2B3.1(b)(4)(B). The PSR applied
the adjustment to both convictions because employees were forced into a back room in

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each robbery. But the court sustained Odom’s objection to the adjustment for the
conspiracy conviction, concluding that the evidence did not show that physical restraint
was used in the first robbery to move or keep the employees in a back room. As to the
robbery conviction, however, the court applied the increase because the robbers used
physical force when pepper-spraying a victim and punching another to prevent him
from calling the police. The adjusted offense level was 21 for conspiracy and 24 for the
robbery; because there were multiple counts, two levels were added for a combined
adjusted offense level of 26. See id. § 3D1.4. Odom received a three-level decrease for
acceptance of responsibility, see id. § 3E1.1, resulting in a final offense level of 23.
Odom’s criminal-history category was I based on one prior conviction. See id. § 4A1.1(c).
The court’s calculations yielded a guidelines range of 46 to 57 months’
imprisonment and 1 to 3 years’ supervised release. See id. § 5D1.2(a)(2). The court then
weighed the factors under 18 U.S.C. § 3553(a) and concluded that a sentence within the
guidelines range was appropriate. In mitigation, the court considered Odom’s minor
role in the offense, limited criminal history, “terrible” and abusive upbringing, mental
health concerns, and attempts to improve himself while released on bond. Then,
addressing the aggravating factors, it discussed the serious and violent nature of
robbery in general and was concerned that two victims were injured during the second
robbery. The court was also troubled by Odom’s repeated, though relatively minor,
bond violations; the fact that he was older at the time of the crime and “should have
known better”; and the need for specific and general deterrence. The court concluded
by sentencing Odom to a within-guidelines sentence of 50 months on each count, to run
concurrently, and 3 years’ supervised release. It also explained that, if it was incorrect
that the two-level enhancement for physical restraint applied to the facts of the second
robbery, it would still give Odom the same sentence because it would consider that
conduct as part of the § 3553(a) factors.
Having confirmed that Odom wishes to undo his guilty plea, appellate counsel
first considers whether there is any nonfrivolous argument that the plea was invalid.
United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d
667, 670–71 (7th Cir. 2002). When a defendant, like Odom, does not move to withdraw a
guilty plea in the district court, we review challenges to its validity only for plain error.
See United States v. Schaul, 962 F.3d 917, 921 (7th Cir. 2020). And, as counsel concludes,
such a challenge would be frivolous. The record shows that the district court
substantially complied with Rule 11 of the Federal Rules of Criminal Procedure. United
States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013). The court confirmed that Odom
read and understood his plea agreement, which explained the nature of the charged

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offenses, the maximum penalties, the trial rights he was forsaking, and the role of the
Sentencing Guidelines. See F ED. R. C RIM . P. 11(b)(1). The court did not ask Odom if he
was threatened into entering the plea agreement, but that oversight would not
constitute plain error because, in the written plea agreement, Odom acknowledged that
he was not coerced or threatened into pleading guilty. See Davenport, 719 F.3d at 618.
Further, Odom admitted the offense conduct in the plea agreement and the change-of-
plea hearing, so the omission does not render Odom’s conviction unjust. See id.
Counsel explains that Odom would like to argue that he entered into the plea
agreement unknowingly because, based on the plea agreement, he believed his
guidelines range would be 37 to 46 months and that he would be sentenced on the low
end of that range. But this argument would be frivolous. A defendant has “no chance of
success on appeal” if his arguments contradict his sworn statements during the plea
hearing. United States v. Collins, 796 F.3d 829, 835 (7th Cir. 2015). And Odom
acknowledged in his plea agreement, then stated under oath at the plea hearing, that he
understood that the calculations in the written agreement were not binding and that the
court could give him a sentence above that range.
Counsel next considers whether Odom could plausibly argue that the district
court miscalculated his guidelines range, but rightly concludes that any challenge
would be frivolous. Counsel explains that the court correctly calculated Odom’s
guidelines range, and that the only possible argument that Odom could make is that the
court should not have applied the two-level adjustment for physically restraining a
person during the second robbery. See U.S.S.G. § 2B3.1(b)(4)(B). The Guidelines define
physical restraint as “the forcible restraint of the victim such as by being tied, bound, or
locked up,” id. § 1B1.1 cmt. n.1(L), and we have clarified that the restraint must be a
physical action “against the targeted person that result[s] in a physical limitation on her
mobility,” United States v. Herman, 930 F.3d 872, 876 (7th Cir. 2019). The court did not
clearly err when it determined that such restraint existed when one robber punched an
employee in the face to prevent him from calling the police.
And even if this determination were arguably erroneous, any possible error
would be harmless: The court specifically said that it would have given Odom the same
sentence with or without the adjustment. A district court may show that a particular
guideline does not affect its chosen sentence by specifying the guideline at issue in its
explanation and then explaining why the sentence would be the same regardless.
United States v. Asbury, 27 F.4th 576, 581–82 (7th Cir. 2022). The court did so here: It
identified a disputed issue about the applicability of the adjustment for physical

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restraint and explained that the sentence would be the same because the court would
have considered the robbers’ choice to pepper-spray and punch victims when assessing
the sentencing factors under § 3553(a). Therefore, any challenge to the adjustment
would be frivolous. Counsel identifies no other potential procedural challenges to the
sentence. See generally Gall v. United States, 552 U.S. 38, 51 (2007) (listing potential
procedural errors).
Finally, counsel correctly concludes that a challenge to the substantive
reasonableness of Odom’s prison term would be frivolous. His within-guidelines
sentence of 50 months is “presumed reasonable against a defendant’s challenge that it is
too high.” United States v. De La Torre, 940 F.3d 938, 953 (7th Cir. 2019) (internal citation
omitted). This presumption can be rebutted only by showing that the sentence does not
reasonably comport with the § 3553(a) factors. Id. But Odom could not plausibly make
that contention. Counsel’s brief and our own review of the transcript show that the
court holistically addressed the § 3553(a) factors and reasonably balanced the
seriousness of the robberies and the need for specific and general deterrence against the
mitigating circumstances that Odom raised.
We therefore GRANT counsel’s motion to withdraw and DISMISS the appeal.

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