United States of America v. Tyree J. White

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 21-2296
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
TYREE J. WHITE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:17CR00182-001 — Jane Magnus-Stinson, Judge.
____________________
A RGUED O CTOBER 25, 2022 — DECIDED S EPTEMBER 6, 2023
____________________
Before S YKES , Chief Judge, and F LAUM and LEE, Circuit
Judges.
S YKES , Chief Judge. Tyree White and several accomplices
committed a string of armed robberies in Indianapolis in the
late spring of 2017. White participated as an organizer and
lookout, while his accomplices carried out the holdups. After
successfully robbing a bank and two cellphone stores, the
coconspirators were finally stopped when undercover
detectives spotted them attempting to rob a Verizon store.

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2 No. 21-2296
White was charged with three counts of conspiracy to
commit robbery and one count of conspiracy to commit
armed bank robbery. He pleaded guilty to all four charges.
The district court accepted the Sentencing Guidelines calcu-
lations in the presentence report, which produced an adviso-
ry sentencing range of 97 to 121 months. The judge
determined that a sentence in the middle of that range was
appropriate and imposed four concurrent 108-month terms
of imprisonment.
White challenges the sentence on two grounds. First, he
contends that the 108-month prison term for the bank-
robbery conspiracy exceeds the applicable statutory maxi-
mum. Second, he disputes two applications of the Guide-
lines enhancement for physically restraining a victim “to
facilitate commission” of a robbery. See U.S.S.G.
§ 2B3.1(b)(4)(B). White concedes that all parties, including
his own lawyer, overlooked both issues at sentencing. In
other words, he acknowledges that he forfeited these chal-
lenges, so resentencing is warranted only if we find plain
error.
We vacate White’s sentence and remand for resentenc-
ing. The general federal conspiracy statute, 18 U.S.C. § 371,
supplies the operative sentencing framework for the bank-
robbery conspiracy charge, capping any term of imprison-
ment at 60 months. Needless to say, White’s 108-month
sentence on this count far exceeds the applicable statutory
maximum. While the government concedes this point, it
nonetheless argues that the error is harmless. This argument
rests on United States v. Gray, 332 F.3d 491 (7th Cir. 2003), a
pre-Booker case that is out of sync with the advisory Guide-
lines regime. See United States v. Booker, 543 U.S. 220 (2005).

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No. 21-2296 3
Because White’s 108-month sentence on the bank-robbery
conspiracy conviction clearly exceeds the applicable statuto-
ry maximum, it is unlawful. The judge must impose a new
sentence on that count. Though she has the discretion to
restructure the entire sentence, she is not required to do so.
The physical-restraint enhancement was properly ap-
plied to one of the robbery-conspiracy counts. During the
bank robbery, one of White’s accomplices wielded a hand-
gun, grabbed a bank manager by his shirt, and led him to the
lobby at gunpoint. This conduct counts as physical restraint
within the meaning of § 2B3.1(b)(4)(B). But the government
admits that the conduct underlying the second application of
the enhancement—during the robbery of one of the cell-
phone stores, an accomplice wielded a gun and ordered an
employee to move to another area of the store—is not a form
of physical restraint under our caselaw. See United States v.
Herman, 930 F.3d 872, 875 (7th Cir. 2019) (ruling out the
enhancement in the absence of physical contact or confine-
ment). This error alone was harmless, however; it did not
alter the applicable Guidelines range. So while the judge may
revisit and restructure the entirety of White’s sentence on
remand, she must impose a new sentence only on the bank-
robbery conspiracy count.
I. Background
Over the course of several weeks in May and June 2017,
Tyree White participated in several commercial armed
robberies in Indianapolis. His primary role was that of a
lookout, but he also assisted with his coconspirators’ prepa-
rations by selecting and staking out the targeted premises
and providing supplies, including (for at least one robbery)
the gun. His stint as a serial robbery conspirator came to an

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4 No. 21-2296
end in mid-June when undercover officers observed White’s
accomplices enter and suddenly flee a Verizon store. A chase
ensued but the culprits escaped, tossing a gun from the
getaway car as they fled. After three months of investigation,
White was arrested. A grand jury issued a superseding
indictment charging him with three counts of conspiracy to
commit robbery, 18 U.S.C. § 1951(a), and one count of con-
spiracy to commit armed bank robbery, id. §§ 2113(a), (d),
and 371.
The specifics of two of these robberies are important to
this appeal, so we describe them in some detail. White’s
preparations for the first robbery began on May 8, 2017,
when he entered a Fifth Third Bank in Indianapolis to
inquire about opening an account, a front for his surveillance
of the bank. Two days later accomplices Charles Robinson
and M.W., a juvenile, entered the bank while White was
stationed outside in a vehicle as the lookout. M.W. was
armed with a handgun that White had provided. After
locating the bank manager in his office, M.W. brandished the
firearm, ordered the manager to keep quiet, and pulled him
by his shirt into the lobby—all while pointing the gun at
him. At the same time, Robinson grabbed cash from the
teller drawers and stuffed it into a bag. The robbers then
escaped.
White acted as the lookout in a second Indianapolis rob-
bery on May 26 (about two weeks later). This time the target
was a T-Mobile store. Again, White stayed in his car and
watched for signs of trouble while Robinson, Johnathan
Washington, and Davon Herron entered the store. Herron
wielded a handgun and demanded that an employee lead
the three robbers to the back room where the cellphone

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No. 21-2296 5
inventory was kept. One or more T-Mobile employees
remained in the back room as White’s accomplices stole cash
from a safe and several cellphones. The robbers then fled the
scene, escaping in White’s car and a second vehicle.
The details of the remaining robbery and attempted rob-
bery are mostly irrelevant for our purposes. Here are the
basics: About two weeks after the T-Mobile robbery, White
helped plan an armed robbery of an AT&T store in
Indianapolis; he then acted as the lookout as his coconspira-
tors entered the store on June 9 and escaped with 26 stolen
cellphones. The following week White teamed up with an
entirely new group of accomplices because the AT&T rob-
bers had been arrested. This new group of coconspirators
attempted to rob a Verizon store on June 16. White helped
gather the tools—gloves, trash bags, and zip ties—and
staked out the store. But the plan faltered in the middle of
the robbery when the Verizon employees ran out the back of
the store. The robbers abandoned the effort and left the store
empty-handed, jumping into a waiting getaway car. Because
of the recent robberies of local cellphone retailers, undercov-
er officers were watching the Verizon store; they chased the
robbers but did not catch them. They did, however, see them
toss a gun from the car during the pursuit.
The police continued to investigate over the summer and
eventually arrested White in September. In November 2017 a
grand jury returned a superseding indictment charging him
with four crimes: three counts of conspiracy to commit
robbery in violation of § 1951(a) and one count of conspiracy
to commit armed bank robbery in violation of §§ 2113(a), (d),
and 371. Two aspects of the statutory scheme underlying the
bank-robbery conspiracy charge are important. First, the

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6 No. 21-2296
Federal Bank Robbery Act, § 2113, does not provide for a
conspiracy theory of liability; a defendant violates the Act
only if he “takes[] or attempts to take” the property of
another. Proceeding on a conspiracy theory therefore re-
quires charging a violation of § 371, the general federal
conspiracy statute. Second, while a violation of the armed-
robbery provision of the Bank Robbery Act, § 2113(d), carries
a possible sentence of 300 months, the general federal con-
spiracy statute, § 371, has a 60-month maximum.
White soon filed a petition to enter guilty pleas on all
four counts. But his plea petition listed 300 months in prison
as the maximum sentence for the bank-robbery conspiracy
count. In other words, White’s petition apparently—and
erroneously—treated that count as a substantive armed-
robbery offense under § 2113(d) rather than as a conspiracy
offense under § 371. From that point on, all parties seeming-
ly proceeded on a shared misunderstanding that the Bank
Robbery Act (§ 2113(d)), not the general conspiracy statute
(§ 371), supplied the statutory maximum sentence for the
bank-robbery charge. For example, at White’s change-of-plea
hearing, the prosecutor stated that the maximum punish-
ment “would be 25 years [of] incarceration.” And White
agreed later in the hearing that the applicable imprisonment
range was 0 to 25 years. The probation office also assumed
that § 2113(d) furnished the relevant statutory penalties: on
the first page of the presentence report, and again later in the
report, it described the bank-robbery conspiracy count as
subject to “[n]ot more than 25 years [of] imprisonment.”
The Guidelines calculations in the presentence report in-
cluded two sentencing enhancements under § 2B3.1(b)(4)(B)
for physically restraining a victim. The physical-restraint

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No. 21-2296 7
enhancements, which reflected the conduct of White’s
coconspirators during the Fifth Third Bank and T-Mobile
robberies, added two levels to the base offense level for each
of those counts. These enhancements (and others not at issue
here) resulted in adjusted offense levels of 29 for the bank
robbery and 27 for the T-Mobile robbery. Taking the higher
level—as the Guidelines instruct—and adjusting for multiple
counts yielded a single combined offense level of 31. After
subtracting three levels for acceptance of responsibility,
White’s final adjusted offense level was 28. Combining this
level with his criminal history category of III, the probation
office calculated an advisory Guidelines range of 97 to
121 months in prison.
At sentencing the judge adopted without objection the
Guidelines calculations in the presentence report. After
evaluating the gravity of White’s offenses and his troubled
upbringing, she determined that a sentence in the middle of
the advisory range was appropriate. She rejected the defense
argument for a sentence at the low end of the range “because
of the number of crimes and the use of the weapon[s] by
[White’s] co-conspirators.” But she also determined that a
sentence at the high end was unwarranted based on White’s
background. In the end she imposed concurrent 108-month
sentences on each of the four counts.
II. Discussion
White raises two claims of error, both relating to his sen-
tence. He challenges his 108-month sentence on the bank-
robbery conspiracy count, pointing out—for the first time on
appeal—that the superseding indictment necessarily
charged him with violating § 371, not § 2113(d), and the
statutory maximum sentence for that crime is 60 months. He

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8 No. 21-2296
also challenges the two physical-restraint enhancements,
arguing that in neither the Fifth Third Bank robbery nor the
T-Mobile robbery did his coconspirators’ conduct amount to
physical restraint under § 2B3.1(b)(4)(B).
These arguments are new. As we’ve noted, White did not
object to the presentence report, and everyone assumed
throughout the proceedings below that the bank-robbery
conspiracy carried a 300-month maximum. So our review is
limited to correcting plain error, which requires White to
show that
(1) there is an error that has not been intention-
ally relinquished or abandoned; (2) the error is
clear or obvious; (3) the error affected [his]
substantial rights, i.e., it affected the outcome
of the [sentencing] proceedings … ; and (4) the
error seriously affects the fairness, integrity or
public reputation of [the] judicial proceedings.
United States v. Galvan, 44 F.4th 1008, 1011 (7th Cir. 2022)
(cleaned up).
A. Statutory Maximum
We first address White’s 108-month sentence for the con-
spiracy to rob the Fifth Third Bank. We need not dwell on
the first three elements of plain-error review. The govern-
ment agrees that the superseding indictment charged White
under the general federal conspiracy statute, which carries a
maximum sentence of 60 months in prison. White’s 108-
month term obviously exceeds that statutory maximum, so
an error occurred. The record also suggests—and the gov-
ernment does not dispute—that this error was simply over-
looked by all parties, not intentionally relinquished or

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No. 21-2296 9
abandoned. “And because this error is apparent from the
language of 18 U.S.C. § 371,” it is both clear and obvious.
United States v. Gibson, 356 F.3d 761, 766 (7th Cir. 2004). The
error also affected White’s substantial rights; it increased his
sentence for the bank-robbery conspiracy by at least
48 months. See United States v. Dooley, 688 F.3d 318, 321
(7th Cir. 2012) (“[A]n extra 48 months in prison is ‘substan-
tial’ by any measure.”).
Indeed, the government admits that the statutory sen-
tencing error is “plain enough.” Yet it contends that we need
not correct the error because it did not “seriously affect[] the
fairness, integrity or public reputation of [the] judicial
proceedings.” Galvan, 44 F.4th at 1011. The government’s
argument rests on our reasoning in Gray, which became
obsolete after the Supreme Court’s decision in Booker made
the Guidelines advisory. Gray involved a defendant who
pleaded guilty to three crimes, each stemming from a drug
deal that culminated in a high-speed chase. 332 F.3d at 491–
92. At sentencing neither party “mentioned the relevant
statutory maximums,” and like in this case, the judge select-
ed a sentence in the middle of the applicable Guidelines
range, imposing three concurrent 87-month prison terms. Id.
at 492. But the 87-month sentences exceeded the statutory
maximum sentence for all three crimes. Id. at 493.
The defendant did not object in the district court, so our
review in Gray was limited to correcting plain error. Though
we acknowledged the obvious error, we agreed with the
government that a remand for resentencing was unnecessary
because the sentences “d[id] not exceed the combined
statutory maximum achievable by running the sentences
consecutively.” Id. For the defendant’s three crimes, that

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10 No. 21-2296
consecutive statutory maximum was 156 months. Id.1 Be-
cause he had been sentenced to 87-month terms, “well below
the total, consecutive maximum,” id., we declined to remand
for resentencing. The errors “did not affect the fairness,
integrity, or public reputation of the proceedings.” Id.
Crucially, our reasoning in Gray was keyed to § 5G1.2(d)
of the Guidelines, which states in part: “If the sentence
imposed on the count carrying the highest statutory maxi-
mum is less than the total punishment, then the sentence
imposed on one or more of the other counts shall run consecu-
tively, but only to the extent necessary to produce a com-
bined sentence equal to the total punishment.” (Emphasis
added.) Simplified, § 5G1.2(d) instructed judges to impose
consecutive sentences in the circumstances presented in
Gray, and because Gray predated Booker, 543 U.S. 220, the
Guidelines were mandatory. The fact that § 5G1.2(d) would
require the same outcome on remand was central to our
decision: “[E]ven if we were to remand for resentencing,
§ 5G1.2(d) would instruct the district court to impose the
sentences consecutively to the extent necessary to achieve
the total punishment; thus, Gray would receive the same
sentence as before.” Gray, 332 F.3d at 493.
The government treats Gray as dispositive here. Not so.
Our decision in Gray necessarily rested on the Guidelines’
then-mandatory effect. After Booker, the Guidelines are no
longer mandatory, and the premise of Gray is fundamentally
at odds with the modern advisory Guidelines regime. Today
1 Gray was convicted of two drug crimes, each carrying a 60-month
maximum, and assault of an officer, which was subject to a 36-month
maximum.

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No. 21-2296 11
when we remand for correction of an unlawful sentence in a
multicount case, the judge may—but certainly is not re-
quired to—restructure the overall sentencing package to
achieve the same total prison term. Gray’s holding on this
point is no longer relevant to the kind of sentencing error
presented here—that is, when one of several concurrent
prison terms exceeds the applicable statutory maximum.
Because its reasoning is outdated, Gray should no longer be
cited for this point.2
With Gray out of the picture, we see no reason to depart
from an otherwise obvious rule that flows directly from the
Constitution’s separation of powers: A term of imprison-
ment “must comply with the maximum (and minimum, if
there is one) provided by the statute of conviction.” United
States v. Cieslowski, 410 F.3d 353, 363 (7th Cir. 2005). Put
differently, when a sentence exceeds a congressionally
mandated limit, it is unlawful, and we “cannot give [it]
effect.” Gibson, 356 F.3d at 766 (quotation marks omitted).
Contrary to the government’s contention, we cannot leave
the error uncorrected simply because the judge has also
ordered White to serve concurrent, within-range sentences
that equal or exceed the unlawful sentence. Doing so “would
impugn the fairness, integrity, and public reputation of the
judicial proceedings that have taken place in th[e] case” and
2 We acknowledge that even post-Booker we have sporadically cited Gray
with approval. See, e.g., United States v. Radick, 261 F. App’x 891, 897
(7th Cir. 2008); United States v. Ross, 510 F.3d 702, 713 n.3 (7th Cir. 2007);
United States v. Shurn, 163 F. App’x 409, 412 (7th Cir. 2006); United States v.
Angulo-Hernandez, 175 F. App’x 79, 82–83 (7th Cir. 2006); United States v.
West, 207 F. App’x 719, 722–23 (7th Cir. 2006); cf. United States v. Ghuman,
966 F.3d 567, 578 (7th Cir. 2020).

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12 No. 21-2296
would threaten respect for the judicial system as a whole. Id.
at 767.
We are particularly inclined to vacate White’s sentence
because, as we’ve explained, the judge made her sentencing
decision based in part on the mistaken assumption that the
bank-robbery conspiracy count was subject to a statutory
maximum of 25 years, while the other three counts were
subject to a 20-year maximum. It’s possible—though the
record is silent on the matter—that this assumption had an
“anchoring effect on [her] determination of a reasonable
sentence” on all four counts of conviction. United States v.
Currie, 739 F.3d 960, 966 (7th Cir. 2014). Had she known that
the maximum sentence for the bank-robbery conspiracy
count was in fact only five years, she might have chosen a
lesser sentence overall.
B. Physical-Restraint Enhancements
We turn next to the physical-restraint enhancements that
were applied to White’s convictions for the Fifth Third Bank
and T-Mobile robberies. Removing both enhancements
would drop the advisory Guidelines range from 97 to
121 months to 87 to 108 months, so White argues that he is
entitled to a new sentence on all four counts of conviction,
not just the bank-robbery conspiracy count.
Section 2B3.1(b)(4)(B) of the Sentencing Guidelines pro-
vides for a two-level increase to the base offense level “if any
person was physically restrained to facilitate commission of
the offense or to facilitate escape.” For a definition of “physi-
cally restrained,” the Application Notes direct us to the
Commentary for § 1B1.1, which defines “physically re-
strained” as “the forcible restraint of the victim such as by

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No. 21-2296 13
being tied, bound, or locked up.” U.S.S.G. § 1B1.1 cmt.
n.1(L). Although White himself did not physically restrain
anyone, the Guidelines hold him accountable for the fore-
seeable conduct of his coconspirators. Id. § 1B1.3(a)(1)(B).
White does not raise a challenge sounding in foreseeability,
so our focus here is on the meaning of “physically re-
strained” within the context of § 2B3.1(b)(4)(B).
We recently reconsidered the meaning of that phrase in
United States v. Herman, 930 F.3d 872 (7th Cir. 2019). Focusing
on the guideline’s use of the word “physical,” we drew a
line between true “physical restraint” and mere “psycholog-
ical coercion.” Id. at 875. That is, the guideline “specifies
physical restraints,” and “[t]hat limitation rules out psycho-
logical coercion, even though such coercion has the potential
to cause someone to freeze in place.” Id. at 875–76. Extending
our previous discussion in United States v. Taylor, 620 F.3d
812 (7th Cir. 2010), we held that the conduct underlying the
enhancement must “depriv[e] a person of his freedom of
physical movement.” Herman, 930 F.3d at 875 (quoting
Taylor, 620 F.3d at 814). This conduct often will be a “physi-
cal act that prevents movement.” Id. But at the very least, the
victim must actually be restrained by something—even if
only the four walls of a room and some sort of mechanism
“used to bar the door.” Id. at 876.
Applying Herman’s reasoning to the conduct of White’s
coconspirators, we conclude that the judge correctly applied
one physical-restraint enhancement. During the commission
of the Fifth Third Bank robbery, M.W. physically restrained
the bank manager. But no such physical restraint occurred
during the T-Mobile robbery; in fact, the government con-
cedes as much.

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14 No. 21-2296
Starting with the application of the physical-restraint en-
hancement to the bank robbery, White does not dispute that
M.W. grabbed the manager of the Fifth Third Bank by his
shirt and led him into the lobby while pointing a gun at him.
But he argues that M.W.’s conduct did not constitute physi-
cal restraint because the manager was still able to move to a
different location within the bank. He also emphasizes that
the physical contact was neither lengthy nor confining,
relying on factors cited by the Third Circuit in United States
v. Bell, 947 F.3d 49, 59–60 (3d Cir. 2020).
Of course, the law of the Third Circuit is not binding on
us. And White advances no reason why we should abandon
our recent analysis in Herman in favor of the Third Circuit’s
multi-factor approach. Under Herman there was no error—
and certainly no plain error—in the judge’s application of
the physical-restraint enhancement to White’s conviction for
the Fifth Third Bank robbery. By pulling the bank manager
by his shirt into the lobby at gunpoint, M.W. engaged in a
physical act that “depriv[ed the manager] of his freedom of
physical movement.” Herman, 930 F.3d at 875. That’s enough
to justify application of the physical-restraint enhancement.
We turn then to the T-Mobile robbery, during which
Herron flashed a handgun and ordered a T-Mobile employ-
ee to lead the way to a back inventory room. The employee
did so, and then stayed with the robbers while they stole
cellphones and cash. Nothing in the record, however, sug-
gests that the robbers made physical contact with this (or
any other) employee, nor did they confine anyone in the
back room. At most, an uncertain number of employees
remained in the back room while the ransacking occurred.
But the physical-restraint enhancement is not so capacious

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No. 21-2296 15
as to cover any instance where a bystander stands in the
vicinity of an offense. Even if those employees felt too
frightened to leave (and we don’t doubt that they did),
under Herman this is the sort of purely psychological coer-
cion that the text of § 2B3.1(b)(4)(B) rules out. We therefore
conclude that the physical-restraint enhancement was
improperly applied to the T-Mobile robbery count.
Indeed, the government concedes this point, acknowl-
edging that Herron’s conduct “consisted of … psychological
coercion.” Yet it argues that because the erroneous applica-
tion of § 2B3.1(b)(4)(B) to the T-Mobile count did not ulti-
mately influence the advisory Guidelines range, the error
had no effect on White’s substantial rights and does not
warrant correction on plain-error review.
We agree. Even if we remove the physical-restraint en-
hancement from the T-Mobile count, the resulting Sentenc-
ing Guidelines range would not change. True, the adjusted
offense level for that count would be 25 instead of 27. But the
Guidelines multiple-count adjustment calculation operates
on the count with the highest adjusted offense level. See
U.S.S.G. § 3D1.4. In this case that’s the bank-robbery con-
spiracy count with an adjusted offense level of 29. As we’ve
explained, it was not error to apply the physical-restraint
enhancement to that count, and White raises no other argu-
ment why the adjusted offense level of 29 should otherwise
be reduced.
Without a change to that offense level, White’s Guide-
lines calculation remains the same, as does the resulting
advisory sentencing range applicable to all four counts.
Therefore, White cannot show that the single enhancement
error prejudiced him, and there is no need to remand for

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16 No. 21-2296
resentencing because of this error. See United States v.
Thomas, 897 F.3d 807, 817 (7th Cir. 2018) (declining to re-
mand for resentencing on plain-error review where “a two-
level error in the offense level would not have changed the
final recommended guideline range”).
Although the enhancement error does not entitle White to
a new sentence on all four counts of conviction, the judge
may, in her discretion, reevaluate and restructure White’s
overall sentence when she corrects the sentencing error on
the § 371 bank-robbery conspiracy count. Accordingly, we
VACATE White’s sentence and R EMAND for resentencing.

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