United States v. Charles Bret Swoape, 31 F.3d 482 (7th Cir. 1994). · Go Syfert
United States v. Charles Bret Swoape, 31 F.3d 482 (7th Cir. 1994). Cases Citing This Book View Copy Cite
30 citation events (9 in the last 25 years) across 8 distinct courts.
Strongest positive: United States v. Jamaal Mays (ca8, 2020-07-24)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 19 distinct citers.
discussed Cited as authority (rule) United States v. Jamaal Mays
8th Cir. · 2020 · confidence medium
Sections 2B3.1(b)(2) and (b)(3) are offense characteristics that “respond[] to a separate aspect of [the defendant’s] conduct: § 2B3.1(b)(2)(A) that he fired at a person, § 2B3.1(b)(3)(B) that the shot seriously injured the target.” United States v. Swoape, 31 F.3d 482, 483 (7th Cir. 1994).
discussed Cited as authority (rule) United States v. Shane Roush
6th Cir. · 2013 · signal: cf. · confidence medium
Cf United States v. Swoape, 31 F.3d 482, 483 (7th Cir.1994) (citing United States v. Mills, 1 F.3d 414 (6th Cir.1993)) (finding § 3C1.2’s enhancement applicable where the defendant endangered civilians by engaging in a parking lot shootout with police in the presence of bystanders after robbing a bank).
cited Cited as authority (rule) United States v. Duncan
N.D. Ind. · 2004 · confidence medium
The Government admits that both enhancements cannot be applied for the same conduct, shooting at Hobbs, citing United States v. Swoape, 31 F.3d 482, 483 (7th Cir.1994).
discussed Cited as authority (rule) United States v. Gillyard
5th Cir. · 2001 · confidence medium
See, e.g., United States v. Alicea, 205 F.3d 480, 486 (1st Cir.2000) (concluding that a double enhancement under § 3A1.2(b) and § 3Cl.2 for firing shots in an open plaza and firing a pistol at police pursuing the defendant while fleeing the scene was not impermissible double counting); United States v. White, 222 F.3d 363, 376 (7th Cir.2000) (upholding the district court’s enhancement of the defendant's sentence under both § 3A1.2(b) and § 3C1.2 for assaulting an officer with a gun before endangering others in a flight from a bank); United States v. Swoape, 31 F.3d 482, 483 (7th Cir.l994…
discussed Cited as authority (rule) United States v. Carl L. Ledford and Shane A. Thomas (2×) also: Cited "see"
7th Cir. · 2000 · confidence medium
As our opinion in United States v. Swoape, 31 F.3d 482, 483 (7th Cir.1994), recognizes, section 2B3.1(b)(2) focuses on the use of the firearm (or another dangerous weapon), without regard to whether or not injury results.
discussed Cited as authority (rule) United States v. Ledford, Carl L. (2×) also: Cited "see"
7th Cir. · 2000 · confidence medium
As our opinion in United States v. Swoape, 31 F.3d 482, 483 (7th Cir. 1994), recognizes, section 2B3.1(b)(2) focuses on the use of the firearm (or another dangerous weapon), without regard to whether or not injury results.
cited Cited as authority (rule) United States of America,plaintiff-Appellee v. Carlos Hernandez-Sandoval,aka Federico Ortega-Martinez
9th Cir. · 2000 · signal: cf. · confidence medium
Cf. United States v. Swoape, 31 F.3d 482, 483 (7th Cir.1994).
discussed Cited as authority (rule) United States v. Tabari A. Spann
4th Cir. · 1999 · confidence medium
See, e.g., United States v. Rodriguez-Matos , ___ F.3d ___, 1999 WL 727038, at *11 (11th Cir. Sept. 17, 1999); (assault on officer with vehicle followed by high speed chase); United States v. Miner, 108 F.3d 967, 970 (8th Cir. 1997) (same); United States v. Alexander, 48 F.3d 1477, 1493 (9th Cir. 1995) (high-speed chase during which shots fired at pursuing officers resulting in danger to police and public); United States v. Swoape, 31 F.3d 482, 483 (7th Cir. 1994) (high-speed chase in which three officers shot and public endangered).
discussed Cited as authority (rule) United States v. Matos-Rodriguez
11th Cir. · 1999 · confidence medium
Second, as the Seventh Circuit observed in United States v. Swoape, 31 F.3d 482, 483 (7th Cir. 1994), the Fourth Circuit’s gratuitous pronouncement in Sloley simply “is wrong.” The fourth circuit quoted from comment 1 to § 3C1.2, which says: “Do not apply this enhancement where ... another adjustment in Chapter Three ... results in an equivalent or greater increase in offense level solely on the basis of the same conduct.” The Sentencing Commission included a vital qualifier — “solely on the basis of the same conduct” — that disappeared from the fourth circuit’s summary of…
discussed Cited as authority (rule) United States v. Matos-Rodriguez
11th Cir. · 1999 · confidence medium
Second, as the Seventh Circuit observed in United States v. Swoape, 31 F.3d 482, 483 (7th Cir.1994), the Fourth Circuit’s gratuitous pronouncement in Sloley simply “is wrong.” The fourth circuit quoted from comment 1 to § 3C1.2, which says: “Do not apply this enhancement where ... another adjustment in Chapter Three ... results in an equivalent or greater increase in offense level solely on the basis of the same conduct.” The Sentencing Commission included a vital qualifier—“solely on the basis of the same conduct”— that disappeared from the fourth circuit’s summary of its…
discussed Cited as authority (rule) United States v. Mark Eric Hayes
6th Cir. · 1998 · confidence medium
We, therefore, hold that the District Court erred in applying a two-level enhancement under § 3C1.2. 1 Cf. United States v. Miner, 108 F.3d 967, 970 (8th Cir.)(without discussion of double counting issue, court held that sentence was properly enhanced under § 3A1.2(b) for assaulting a police officer while slamming into a police roadblock and under § 3C1.2 for endangering others vehicles while engaged in a chase), cert. denied, — U.S.-, 118 S.Ct. 259 , 139 L.Ed.2d 186 (1997); United States v. Alexander, 48 F.3d 1477, 1493 (9th Cir.l995)(no double counting under § 3A1.2(b) and § 3C1.2 whe…
cited Cited as authority (rule) United States v. Gerald Miner
8th Cir. · 1997 · confidence medium
See Guidelines §§ 3A1.2(b), 3C1.2; United States v. Swoape, 31 F.3d 482, 483 (7th Cir.1994).
cited Cited as authority (rule) United States v. Jefferey Sorensen and Dennis J. Karda
7th Cir. · 1995 · confidence medium
See U.S.S.G. § 3A1.2(b); United States v. Swoape, 31 F.3d 482, 483 (7th Cir.1994).
cited Cited as authority (rule) United States v. Kurt Eugene Latimer, United States of America v. Linwood Paul Pittman
4th Cir. · 1995 · confidence medium
United States v. Swoape, --- F.3d ----, 1994 WL 391207 at * 1 (7th Cir. July 29, 1994).
discussed Cited "see" United States v. Rodney White
7th Cir. · 2000 · signal: see · confidence high
See United States v. Swoape, 31 F.3d 482, 483 (7th Cir.1994) (holding that it was appropriate to enhance the defendant’s sentence under several different guidelines for his conduct in engaging in a shoot-out with police followed by his reckless driving during flight from a bank robbery).
discussed Cited "see" United States v. White, Rodney
7th Cir. · 2000 · signal: see · confidence high
See United States v. Swoape, 31 F.3d 482, 483 (7th Cir. 1994) (holding that it was appropriate to enhance the defendant’s sentence under several different guidelines for his conduct in engaging in a shoot-out with police followed by his reckless driving during flight from a bank robbery).
cited Cited "see" United States v. Troy D. Jones
5th Cir. · 1998 · signal: see · confidence high
See United States v. Swoape, 31 F.3d 482, 483 (7th Cir.1994); United States v. Muhammad, 948 F.2d 1449, 1458 (6th Cir.1991).
discussed Cited "see" United States v. Bobby Perkins
6th Cir. · 1996 · signal: see · confidence high
See United States v. Swoape, 31 F.3d 482, 483 (7th Cir.1994) (upholding cumulative enhancements under U.S.S.G. § 2B3.1(b)(2)(A) based on the defendant’s firing a shotgun in the course of fleeing a bank robbery, under U.S.S.G. § 2B3.1(b)(3)(B) based on the fact that the gunshot seriously injured the target, and under U.S.S.G. § 3A1.2(b) because the defendant knew the target to be a peace officer because each enhancement “responded to a separate aspect of [the defendant’s] conduct”).
cited Cited "see, e.g." United States v. Zater
4th Cir. · 2001 · signal: see also · confidence low
See also United States v. Swoape, 31 F.3d 482 (7th Cir.1994).
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles Bret SWOAPE, Defendant-Appellant
94-1412.
Court of Appeals for the Seventh Circuit.
Jul 29, 1994.
31 F.3d 482
Barry R. Elden, Asst. U.S. Atty., Pamela Pepper (argued), Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee., James A. Graham (argued), Chicago, IL, for defendant-appellant.
Cudahy, Flaum, Easterbrook.
Cited by 24 opinions  |  Published
EASTERBROOK, Circuit Judge.

C. Bret Swoape entered a bank, leveled a shotgun at a teller, and demanded money. He directed all of the bank’s employees to lie on the floor, leapt the counter, and scooped up more than $12,500 before fleeing in a stolen car. Soon he switched to another stolen car, which loses the police in the movies but not always in real life. A police car took up pursuit, caught Swoape at a roadblock, and pushed his car into a ditch. Swoape bounded out, shot the officer, and got his ear back under way. By now several additional patrol cars were in the hunt. After a high-speed chase through a populated area, an officer rammed Swoape’s car, which swerved into the parking lot of a McDonald’s restaurant. There Swoape made a stand, firing his shotgun and hitting two more officers. Before he could reload, the remaining officers took him into custody. The three wounded officers lived, but one has permanent injuries. Swoape pleaded guilty to armed bank robbery, 18 U.S.C. § 2113(a), (d), and'was sentenced to 212 months’ imprisonment.

The base offense level for robbery is 20. U.S.S.G. § 2B3.1(a). The district[*483] judge added two levels because Swoape robbed a financial institution, § 2B3.1(b)(l), seven levels because he discharged a firearm, § 2B3.1(b)(2)(A), four levels because this inflicted serious bodily injury, § 2B3.1(b)(3)(B), and one level because the loss exceeded $10,-000, § 2B3.1(b)(6)(B). That brought the offense level to 34 within the confines of § 2B3.1. Then the district judge added levels from two generally applicable guidelines: three levels from § 3A1.2(b) because Swoape assaulted a person whom he knew to be a law enforcement officer, and two levels from § 3C1.2 because Swoape “recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer”. Deducting three offense levels for acceptance of responsibility, § 3El.l(b), left a total of 36, which, combined with a criminal history category of I, produced a presumptive sentencing range of 188-235 months. Swoape believes that this is at least two levels too high — that the two point addition under § 3C1.2 is double counting. An offense level of 34 would mean a range of 151-188 months and a substantially lower sentence. Swoape relies on United States v. Sloley, 19 F.3d 149, 154 (4th Cir.1994), which opined that “[i]f both § 3A1.2(b) and § 3C1.2 apply to a defendant, the court must apply only the former and increase the offense level by three levels.”

This sentence is dictum because the district judge in Sloley had applied only § 3A1.2(b). The fourth circuit therefore did not need to consider whether it would have been possible to add two levels under § 3C1.2. The sentence also is wrong. The fourth circuit quoted from comment 1 to § 3C1.2, which says: “Do not apply this enhancement where ... another adjustment in Chapter Three ... results in an equivalent or greater increase in offense level solely on the basis of the same conduct.” The Sentencing Commission included a vital qualifier — “solely on the basis of the same conduct” — that disappeared from the fourth circuit’s summary of its conclusion. It is the Sentencing Commission’s understanding of its rules, and not an incomplete summary by a court of appeals, that governs here. Stinson v. United States, — U.S. -, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Swoape drew the three-level enhancement under § 3A1.2(b) because he shot three police officers. He received the two-level enhancement under § 3C1.2 because during the chase he recklessly endangered many civilians — motorists along the route plus bystanders during the shootout in the parking lot. This is different conduct, making cumulative adjustments appropriate. See United States v. Mills, 1 F.3d 414 (6th Cir.1993). Swoape would have received 37 offense levels had he surrendered immediately after shooting the first officer. His further conduct, including another high-speed chase, shooting two more officers, and subjecting bystanders to danger from both reckless driving and shotgun discharges, produced only another two levels. This is not double counting. His contention that the enhancement under § 3A1.2(b) should not have been combined with other enhancements is even less persuasive. Each enhancement responded to a separate aspect of his conduct: § 2B3.1(b)(2)(A) that he fired at a person, § 2B3.1(b)(3)(B) that the shot seriously injured the target, and § 3A1.2(b) that he knew this target to be a peace officer.

Swoape has gotten off easily. The district court readily could have departed upward on the ground that the calculation under the Guidelines did not account for two of the three officers he wounded. Instead the judge imposed a sentence 23 months below the maximum for the level 36 range. Swoape has been sentenced to 40 years by Illinois for the attacks on the police, but the state will give credit for time served in federal prison. Good time credits will reduce the state sentence to a little less than 20 years. Because Swoape is eligible for parole from the state sentence, he may be released from state custody for these events before his federal sentence has expired. (Release will just transfer custody to a different sentence; he has recently pleaded guilty to a murder unrelated to this robbery.) Swoape has no legitimate complaint.

Affirmed.