United States v. Orbin Harris, 832 F.2d 88 (7th Cir. 1987). · Go Syfert
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United States v. Orbin Harris, 832 F.2d 88 (7th Cir. 1987). Cases Citing This Book View Copy Cite
42 citation events (12 in the last 25 years) across 12 distinct courts.
Strongest positive: United States v. Estell (ca7, 2016-03-10)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
cited Cited as authority (rule) United States v. Estell
7th Cir. · 2016 · confidence medium
See United States v. Gonzales, 520 U.S. 1, 9-10 , 117 S.Ct. 1032 , 137 L.Ed.2d 132 (1997); United States v. Harris, 832 F.2d 88, 90-91 (7th Cir.1987).
cited Cited as authority (rule) United States v. Hunter
N.D. Ill. · 1997 · confidence medium
United States v. Harris, 832 F.2d 88, 90-91 (7th Cir.1987).
cited Cited as authority (rule) United States v. Govan M. McAbee Also Known as Carlos G. Williams
7th Cir. · 1995 · confidence medium
United States v. Harris, 832 F.2d 88, 91 (7th Cir.1987).
cited Cited as authority (rule) Jack E. Wright v. United States
7th Cir. · 1995 · confidence medium
United States v. Harris, 832 F.2d 88, 90-91 (7th Cir.1987), Thus, consecutive punishments for a violation of 18 U.S.C.
discussed Cited as authority (rule) Gregory Lee, Also Known as Frank Lee, Also Known as Ike v. United States
7th Cir. · 1994 · confidence medium
Thus, application of the Simpson analysis to Sec. 924(c), as amended, can yield but one conclusion--that Congress specifically did intend to authorize an additional penalty for use of a firearm in the commission of the already enhanced charge of armed robbery of a savings and loan institution. 15 United States v. Harris, 832 F.2d 88, 90 (7th Cir.1987).
discussed Cited as authority (rule) United States v. Francis Larkin and Francis Bolduc
7th Cir. · 1993 · confidence medium
As we explained in United States v. Harris, 832 F.2d 88, 90-91 (7th Cir.1987), however, Congress amended the relevant statutes after Simpson to expressly provide for consecutive sentences under these circumstances.
discussed Cited as authority (rule) United States v. Leon D. Love, Jr.
7th Cir. · 1993 · confidence medium
See Jackson v. United States, 976 F.2d 679, 681 (11th Cir.1992); United States v. Holloway, 905 F.2d 893, 895 (5th Cir.1990) (collecting cases); United States v. Harris, 832 F.2d 88, 91 (7th Cir.1987). 4 Finally, Love asserts that the district court's mechanical application of the guidelines deprived him of due process, and that his sentence is so disproportionate to his crime as to be cruel and unusual punishment.
discussed Cited as authority (rule) United States v. Larkin
7th Cir. · 1992 · confidence medium
As we explained in United States, v. Harris, 832 F.2d 88, 90-91 (7th Cir.1987), however, Congress amended the relevant statutes after Simpson to expressly provide for consecutive sentences under these circumstances.
discussed Cited as authority (rule) United States v. Norman Allen Martin
11th Cir. · 1992 · confidence medium
E.g., United States v. Holloway, 905 F.2d 893, 895 (5th Cir.1990); United States v. Harris, 832 F.2d 88, 91 (7th Cir.1987); United States v. Springfield, 829 F.2d 860, 865 (9th Cir.1987); United States v. York, 830 F.2d 885, 891 (8th Cir.1987), cert. denied, 484 U.S. 1074 , 108 S.Ct. 1047 , 98 L.Ed.2d 1010 (1988); United States v. Shavers, 820 F.2d 1375, 1378 (4th Cir.1987).
discussed Cited as authority (rule) United States v. Greg Lanzi
10th Cir. · 1991 · confidence medium
We therefore conclude that the district court erred in not ordering defendant’s sixty-month sentence under § 924(c)(1) to run consecutively to his armed robbery sentence. 1 Accord United States v. Mills, 835 F.2d 1262, 1264 (8th Cir.1987); United States v. Harris, 832 F.2d 88, 89-91 (7th Cir.1987); United States v. Browne, 829 F.2d 760, 766-67 (9th Cir.1987), cert. denied, 485 U.S. 991 , 108 S.Ct. 1298 , 99 L.Ed.2d 508 (1988); United States v. Shavers, 820 F.2d 1375 , 1377-78 *827 (4th Cir.1987). 2 Ill Finally, the government contends that the district court erred in not adjusting defendant…
discussed Cited as authority (rule) United States v. George E. Moore (88-5932) and Charles R. Morse, (88-5942)
6th Cir. · 1990 · confidence medium
See United States v. Shavers, 820 F.2d 1375, 1378 (4th Cir.1987), aff'd on remand, 842 F.2d 1293 (1988); United States v. Harris, 832 F.2d 88, 91 (7th Cir.1987); United States v. York, 830 F.2d 885 (8th Cir.1987), cert. denied, 484 U.S. 1074 , 108 S.Ct. 1047 , 98 L.Ed.2d 1010 (1988); and United States v. Springfield, 829 F.2d 860, 865 (9th Cir.1987).
discussed Cited as authority (rule) United States v. Ronald D. Menard
7th Cir. · 1990 · confidence medium
The government correctly notes that this court in United States v. Harris, 832 F.2d 88, 90 (7th Cir.1987) specifically rejected a claim that the defendant could not be sentenced for both armed bank robbery and using a firearm during the commission of a crime.
discussed Cited as authority (rule) United States v. Michael Holloway
5th Cir. · 1990 · confidence medium
United States v. Harris, 832 F.2d 88, 91 (7th Cir.1987); United States v. Shavers, 820 F.2d 1375, 1377-78 (4th Cir.1987); United States v. Doffin, 791 F.2d 118, 120-121 (8th Cir.), cert. denied, 479 U.S. 861 , 107 S.Ct. 210 , 93 L.Ed.2d 140 (1986); United States v. Blocker, 802 F.2d 1102, 1103 (9th Cir.1986).
discussed Cited as authority (rule) United States v. James Garrett
7th Cir. · 1990 · confidence medium
News 3182, 3490-92; see also United States v. Sanchez-Lopez, 879 F.2d 541 , 559 n. 1 (9th Cir.1989); United States v. Harris, 832 F.2d 88, 90 (7th Cir.1987) (per curiam), United States v. Chalan, 812 F.2d 1302, 1315-16 (10th Cir.1987); United States v. Pisani, 787 F.2d 71, 74 (2d Cir.1986). 13 .
discussed Cited as authority (rule) United States v. Jack Decorte
7th Cir. · 1988 · confidence medium
See Missouri v. Hunter, 459 U.S. 359, 367-68 , 103 S.Ct. 672 , 678-79, 74 L.Ed.2d 535 (1983) (express provision for dual punishment precludes violation of Double Jeopardy clause based on dual punishment); United States v. Harris, 832 F.2d 88, 90-91 (7th Cir.1987) (per curiam) (same).
discussed Cited "see" United States v. Hembree, Michael W.
7th Cir. · 2007 · signal: see · confidence high
See United States v. Colvin, 353 F.3d 569, 575 (7th Cir. 2003), United States v. Harris, 832 F.2d 88 , 89- 91 (7th Cir. 1987) (citing Missouri v. Hunter, 459 U.S. 359 (1983)); see also United States v. Arrington, 159 F.3d 1069, 1073 (7th Cir. 1998).
discussed Cited "see" United States v. Hembree, Michael W. (2×)
7th Cir. · 2007 · signal: see · confidence high
See United States v. Colvin, 353 F.3d 569, 575 (7th Cir.2003), United States v. Harris, 832 F.2d 88, 89-91 (7th Cir.1987) (citing Missouri v. Hunter, 459 U.S. 359 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983)); see also United States v. Arrington, 159 F.3d 1069,1073 (7th Cir.1998).
cited Cited "see" John Robert Stevens v. United States
6th Cir. · 1995 · signal: see · confidence high
See United States v. Harris, 832 F.2d 88, 90-91 (7th Cir. 1987) (per curiam); United States v. Shavers, 820 F.2d 1375, 1377-78 (4th Cir. 1987).
discussed Cited "see" United States v. Quigley
W.D. Mich. · 1992 · signal: see · confidence high
See United States v. Harris, 832 F.2d 88, 91 (7th Cir.1987); United States v. York, 830 F.2d 885 (8th Cir.1987), cert. denied, 484 U.S. 1074 , 108 S.Ct. 1047 , 98 L.Ed.2d 1010 (1988); and United States v. Springfield, 829 F.2d at 865.
discussed Cited "see" United States v. Craig Chapman and Jack E. Wright
7th Cir. · 1992 · signal: see · confidence high
See United States v. Harris, 832 F.2d 88, 90 (7th Cir.1987) (not discussing effective date but affirming conviction under amended § 924(c) for armed robbery occurring in 1986); United States v. Jackson, 835 F.2d 1195 , 1198 n. * (7th Cir.1987) (similar), cert. denied, 485 U.S. 969 , 108 S.Ct. 1244 , 99 L.Ed.2d 442 (1988).
discussed Cited "see" United States v. Paul Fazzini
7th Cir. · 1991 · signal: see · confidence high
See United States v. Harris, 832 F.2d 88, 90 (7th Cir.1987) 4 Fazzini's argument that a court may not enter an enhanced sentence on Sec. 924(c) charges from a common indictment has been rejected by every circuit court that has addressed the issue.
cited Cited "see" United States v. Clarence David Karnes
6th Cir. · 1990 · signal: see · confidence high
See United States v. Harris, 832 F.2d 88, 90-91 (7th Cir.1987) (per curiam); United States v. Browne, 829 F.2d 760, 766-67 (9th Cir.1987), cert. denied, 485 U.S. 991 (1988).
cited Cited "see" United States v. Chapman
N.D. Ind. · 1989 · signal: see · confidence high
See United States v. Harris, 832 F.2d 88 (7th Cir.1987).
discussed Cited "see, e.g." HERRON v. United States
S.D. Ind. · 2025 · signal: see also · confidence medium
There is no merit to this argument because "[a]rmed . . . robbery and use of a gun during a crime of violence are difference offenses for double jeopardy analysis." United States v. Ramos, 494 F. App'x 641, 643 (7th Cir. 2012); see also United States v. Harris, 832 F.2d 88, 91 (7th Cir. 1987).
discussed Cited "see, e.g." United States v. Luis Ramos
7th Cir. · 2012 · signal: see, e.g. · confidence medium
See, e.g., United States v. Harris, 832 F.2d 88, 91 (7th Cir. 1987); United States v. Garcia‐Ortiz, 528 F.3d 74, 85 (1st Cir. 2008); United States v. Yousef, 327 F.3d 56, 164 (2d Cir. 2003); United States v. Michlin, 34 F.3d 896 , 900–01 (9th Cir. 1994).
discussed Cited "see, e.g." United States v. Ramos
7th Cir. · 2012 · signal: see, e.g. · confidence medium
See, e.g., United States v. Harris, 832 F.2d 88, 91 (7th Cir.1987); United States v. Garcia-Ortiz, 528 F.3d 74, 85 (1st Cir.2008); United States v. Yousef, 327 F.3d 56, 64 (2d Cir.2003); United States v. Michlin, 34 F.3d 896, 900-01 (9th Cir.1994).
discussed Cited "see, e.g." United States v. Leroy Carney
6th Cir. · 1992 · signal: see also · confidence low
See also United States v. Harris, 832 F.2d 88 (7th Cir.1987); United States v. Shavers, 820 F.2d 1375 (4th Cir.1987); United States v. Doffin, 791 F.2d 118 (8th Cir.1986), cert. denied, 479 U.S. 861 (1986).
discussed Cited "see, e.g." United States v. Harry Louis Smith, II
6th Cir. · 1988 · signal: see, e.g. · confidence low
See, e.g., United States v. Harris, 832 F.2d 88 (7th Cir.1987); United States v. Shavers, 820 F.2d 1375 (4th Cir.1987); United States v. Ricks, 817 F.2d 692 (11th Cir.1987); United States v. Doffin, 791 F.2d 118 (8th Cir.), cert. denied, 107 S.Ct. 210 (1986); Chalan, supra; United States v. Springfield, 829 F.2d 860, 865 (9th Cir.1987). 15 Because the intent behind the statute is clear, we reject Smith's challenge here because double jeopardy concerns are satisfied.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Orbin HARRIS, Defendant-Appellant
87-1354.
Court of Appeals for the Seventh Circuit.
Oct 16, 1987.
832 F.2d 88
1987 U.S. App. LEXIS 14372
Robert Kuhnmuench, Milwaukee, Wis., for defendant-appellant., Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., Elsa C. Lamelas, Matthew L. Jacobs, James L. Santelle, Asst. U.S. Atty., for plaintiff-appellee.
Wood, Cudahy, Coffey.
Cited by 36 opinions  |  Published
PER CURIAM.

The Double Jeopardy Clause of the Constitution provides, “... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.... ” U.S. Const., amend. 5. Orbin Harris was charged with and pleaded guilty to violations of 18 U.S.C. § 2113(d), committing an armed robbery of a savings and loan institution, and 18 U.S.C. § 924(c), using a firearm to commit a federal felony. Harris moved to have the firearm count of his indictment, Count 2, dismissed, arguing that in light of the charge of armed robbery, the charge of using a firearm to commit a felony was “multiplicitous” and, hence, a violation of the Double Jeopardy Clause’s proscription against multiple punishments for the sanie offense. The district court denied Harris’ motion. The question presented on appeal is one of first impression in this circuit. We affirm.

I.

The facts of this case may be stated briefly. On November 18, 1986, a federal grand jury returned a superceding indictment against Orbin Harris. Count 1 charged Harris with the October 17, 1986 armed robbery of a savings and loan institution, in violation of 18 U.S.C. § 2113(d), while Count 2 charged Harris with using a firearm during the commission of a federal felony, in violation of 18 U.S.C. § 924(c). The underlying offense in Count 2 of the indictment was the bank robbery charged in Count 1. Harris moved to dismiss Count 2 of the indictment on various grounds, only one of which, the Constitution’s prohibition against double jeopardy, serves as the basis for this appeal. Pursuant to 28 U.S.C. § 636(b)(1)(B), Harris’ motion was referred to a magistrate who recommended that it be denied. Harris filed timely objections to the magistrate’s recommendation but, on December 31, 1986, after conducting a de novo review of the motion, the district court adopted the magistrate’s recommendation and denied Harris’ motion to dismiss Count 2. As a result, on February 6, 1987, Harris pleaded guilty to both Counts 1 and 2 [1] and was sentenced, inter alia, to serve consecutive sentences of seven years on Count 1 and five years on Count 2.

II.

On appeal, Harris asserts that his indictment offends the Double Jeopardy Clause of the federal Constitution because each count of the indictment charges him with the “same offense.” [2] Harris relies chiefly on Simpson v. United States, 435 U.S. 6,[*90] 98 S.Ct. 909, 55 L.Ed.2d 70 (1978), in which the Supreme Court held that Congress did not intend to authorize, in the case of a bank robbery committed with a firearm, the already enhanced penalty prescribed in 18 U.S.C. § 2113(d) [3] as well as the additional consecutive penalty prescribed under what was then 18 U.S.C. § 924(c). [4] The Court in Simpson, however, expressly declined to reach the constitutional issue of whether cumulative punishments for violations of §§ 2113(d) and 924(c) were constitutionally permissible and instead concluded that the legislative history of the statutes demonstrated that Congress did not intend to authorize the imposition of the additional penalty of § 924(c) for commission of a bank robbery with a firearm, an offense already subject to enhanced punishment under § 2113(d). Id. at 11-13.

Since the Supreme Court’s 1978 Simpson decision, Congress has amended § 924(c) in the Comprehensive Crime Control Act of 1984. The amendment altered § 924(c) to provide in relevant part:

Whoever, during and in relation to any crime of violence or drug trafficking crime, including a crime of violence or drug trafficking crime, which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device, for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a machinegun, or is equipped with a firearm silencer or firearm muffler, to imprisonment for ten years ... (emphasis added).

On its face, § 924(c) clearly indicates that a conviction and sentence under § 924(c) is authorized even when, as here, the underlying offense, § 2113(d), already contains an enhancement provision of its own. Thus, application of the Simpson analysis to § 924(c), as amended, can yield but one conclusion — that Congress specifically did intend to authorize an additional penalty for use of a firearm in the commission of the already enhanced charge of armed robbery of a savings and loan institution. We[*91] proceed to the question of whether punishment for a violation of both §§ 924(c) and 2113(d) is prohibited by the Double Jeopardy Clause of the Constitution. Recent Supreme Court precedent is dispositive of this question.

In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Supreme Court held unequivocally that where, as here, Congress “specially authorizes]” cumulative punishments for even the same offense, the Double Jeopardy Clause is not offended. Id. at 367, 103 S.Ct. at 679 (citing Whalen v. United States, 445 U.S. 684, 693, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980)). More specifically, the Court in Hunter held that with respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” 459 U.S. at 366, 103 S.Ct. at 678. Our earlier discussion of the 1984 amendment to § 924(c) establishes the clear intent of Congress to authorize cumulative punishments for those who violate § 2113(d) while possessing a firearm. Because § 924(c) satisfies the litmus test of legislative intent articulated in Missouri v. Hunter, the consecutive sentences imposed on Harris do not offend the Double Jeopardy Clause.

As we noted, the question presented by this case is one of first impression in this circuit; however, our holding is in agreement with the decisions of the Eighth Circuit in United States v. Doffin, 791 F.2d 118 (8th Cir.) (per curiam), cert. denied, — U.S. -, 107 S.Ct. 210, 93 L.Ed.2d 140 (1986), and the Ninth Circuit in United States v. Gonzalez, 800 F.2d 895 (9th Cir.1986), and United States v. Blocker, 802 F.2d 1102 (9th Cir.1986), which have previously held that the Double Jeopardy Clause does not prohibit convictions and sentences under both §§ 924(c) and 2113(d). Accordingly, the decision of the district court denying Harris’ motion to dismiss Count 2 of the indictment is

Affirmed.

1

. By pleading guilty, Harris did not waive his right to raise a double jeopardy defense in this court. See Hoffer v. Morrow, 797 F.2d 348, 350 (7th Cir.1986).

2

. The Supreme Court, in North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), held that the Double Jeopar[*90] dy Clause “protects against multiple prosecutions for the same offense.”

3

. Title 18 U.S.C. § 2113(d) must be read in conjunction with 18 U.S.C. § 2113(a), together these provisions provide:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny—
Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
******
(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.
4

. As is discussed, infra, although 18 U.S.C. § 924(c) was amended in crucial respects subsequent to the Simpson decision, at the time Simpson was decided § 924(c) stated:

(c) Whoever—
(1) uses a firearm to commit any felony for which he may be prosecuted in a court of the United States, or
(2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States, shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years ... [Njotwithstanding any other provision of law, the court shall not suspend the sentence in the case of a second or subsequent conviction of such person or give him a probationary sentence, nor shall the term of imprisonment imposed under this subsection run concurrently with any term of imprisonment imposed for the commission of such felony.