Seventh Circuit: Rule 11 “Persist” Omission Not Plain Error When Otherwise Conveyed; Completed Hobbs Act Robbery Remains a § 924(c) Crime of Violence Post-Borden

Introduction

In United States v. Davario McDowell (7th Cir. June 11, 2026) (nonprecedential order), the Seventh Circuit dismissed an appeal after appointed counsel moved to withdraw under Anders v. California. 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)). The district court imposed a total sentence of 216 months.

The appeal centered on whether any nonfrivolous issues existed—particularly concerning (1) the validity of the guilty plea under Federal Rule of Criminal Procedure 11, (2) whether Hobbs Act robbery remains a valid “crime of violence” predicate after Borden v. United States, (3) guideline calculations and enhancements (grouping, physical restraint, and firearm “double counting”), (4) alleged judicial bias and sentencing disparities, and (5) supervised-release conditions and restitution.

Summary of the Opinion

The Seventh Circuit granted counsel’s motion to withdraw and dismissed the appeal. Applying the Anders framework, the court concluded that potential arguments identified by counsel (and those raised by McDowell in his Circuit Rule 51(b) response) were frivolous or foreclosed by precedent, waived, or harmless.

Analysis

Precedents Cited

  • Anders v. California, 386 U.S. 738, 744 (1967): Establishes the procedure for appointed counsel to withdraw when an appeal would be frivolous, requiring a conscientious examination and an explanatory brief.
  • United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014): Permits the appellate court to limit review to the issues counsel discusses (and the defendant raises) when the Anders submission is thorough.
  • United States v. Larry, 104 F.4th 1020, 1022 (7th Cir. 2024): Confirms counsel’s obligation to address plea-validity challenges when a defendant wishes to pursue them.
  • United States v. Collins, 986 F.3d 1029, 1030 (7th Cir. 2021): Sets plain-error review when a defendant did not move to withdraw the guilty plea in the district court.
  • United States v.  Adams, 746 F.3d 734, 746-47 (7th Cir. 2014): Supports the conclusion that an omitted Rule 11 advisement is not plain error when the defendant was otherwise informed of the right at issue (here, the right to “persist” in a not-guilty plea).
  • Borden v. United States, 593 U.S. 420 (2021): Limits what crimes qualify as “violent felonies”/“crimes of violence” under certain elements clauses, particularly excluding offenses satisfied by mere recklessness in that context.
  • United States v. Claybron, 88 F.4th 1226, 1229 (7th Cir. 2023): Holds that completed Hobbs Act robbery remains a crime of violence for § 924(c) purposes even after Borden.
  • United States v. Boyle, 28 F.4th 798, 802 (7th Cir. 2022): Treats an affirmative statement that the guideline calculation is accurate as waiver, foreclosing later guideline challenges on appeal.
  • United States v. White, 80 F.4th 811, 819 (7th Cir. 2023): Explains that being held at gunpoint can be “purely psychological coercion,” which does not qualify for certain physical-restraint enhancements (depending on the guideline provision applied and facts).
  • United States v. Evans, 74 F.4th 833, 839 (7th Cir. 2023); U.S.S.G. § 2K2.4: Addresses when a § 924(c) conviction may preclude firearm enhancements on other counts—particularly where possession reflects a “continuing choice across [multiple] predicate offenses.”
  • United States v.  Donelli, 747 F.3d 936, 941 (7th Cir. 2014): Supports rejecting claims that the district court failed to consider mitigation when the record shows the court addressed those arguments and the defendant conceded adequacy.
  • United States v. Saldana-Gonzalez, 70 F.4th 981, 986 (7th Cir. 2023): Reinforces that considering general deterrence is proper under 18 U.S.C. § 3553(a)(2)(B), undercutting “bias” claims premised on deterrence-focused remarks.
  • United States v. Melega, 173 F.4th 907, 914 (7th Cir. 2026); United States v. Williams, 85 F.4th 844, 847 (7th Cir. 2023): Support the presumption of reasonableness for within-guidelines (and, as applied here, below-guidelines) sentences.
  • United States v.  Harris, 102 F.4th 847, 851-52 (7th Cir. 2024): Treats failure to object to restitution figures in the PSR as waiver/forfeiture barriers on appeal (as framed by the panel here).
  • United States v. Douglas, 806 F.3d 979, 986 (7th Cir. 2015): Requires supervised-release conditions to be reasonably explained and tied to probation/rehabilitation purposes.
  • United States v. Armour, 804 F.3d 859, 870 (7th Cir. 2015): Supports broad discretion for probation-visit conditions (there, home visits), cited by analogy to school/work visits.

Legal Reasoning

1) Guilty plea validity: Rule 11 “persist” advisement and plain-error review

Because McDowell did not seek to withdraw his plea in the district court, the Seventh Circuit—following United States v. Collins—would review the plea colloquy only for plain error.

The court acknowledged a technical omission: the district judge did not explicitly state that McDowell had the right to “persist” in his not-guilty plea as referenced in FED. R. CRIM. P. 11(b)(1)(A). But the panel deemed any challenge frivolous because:

  • McDowell had previously pleaded not guilty at arraignment;
  • the judge told him he had the right to plead not guilty and explained the trial rights he would waive by pleading guilty; and
  • the written plea agreement expressly stated the “right to persist in a plea of not guilty.”

Relying on United States v.  Adams, the panel treated these surrounding advisements as defeating any plausible claim that the omission affected McDowell’s substantial rights—an essential component of plain-error relief.

2) § 924(c) predicate: Hobbs Act robbery after Borden

McDowell pleaded guilty to using a firearm in furtherance of a crime of violence, predicated on Hobbs Act robbery. Counsel evaluated whether Borden v. United States undermined Hobbs Act robbery as a § 924(c) “crime of violence.” The panel rejected the issue as frivolous because United States v. Claybron already holds that completed Hobbs Act robbery remains a crime of violence post-Borden.

3) Guidelines issues: waiver, grouping limits, physical-restraint enhancement, and firearm enhancements alongside § 924(c)

a) Waiver by affirming the guideline calculation

After the district court sustained McDowell’s injury-enhancement objection (reducing it from five levels to four), McDowell affirmed the guidelines calculation was accurate. Under United States v. Boyle, that affirmation constituted waiver, foreclosing appellate challenges to the calculation.

b) Grouping

Even aside from waiver, counsel considered whether the court should have grouped counts. The panel agreed this was frivolous because U.S.S.G. § 3D1.2(d) excludes grouping for offenses sentenced under U.S.S.G. § 2B3.1 (robbery guideline), which covered the relevant conduct.

c) Physical restraint enhancement and harmlessness

Counsel flagged a plausible doctrinal question under United States v. White—whether forcing the cashier to move at gunpoint amounts to qualifying physical restraint. The panel did not need to definitively resolve the enhancement’s correctness because it held any error was harmless under the multiple-count “units” computation in U.S.S.G. § 3D1.4. Even if the enhancement were removed, the number of units (and thus the overall combined offense level increase) would remain the same, leaving the final guideline range unchanged.

d) Firearm enhancements on other counts despite a § 924(c) conviction

Counsel evaluated whether U.S.S.G. § 2K2.4 (the guideline tied to § 924(c)) and United States v. Evans would bar firearm enhancements on other counts if McDowell’s firearm possession was one continuous choice across the spree. The panel agreed the argument was frivolous because:

  • the carjackings and robbery occurred on two separate days, not as a single continuous episode; and
  • McDowell brandished the firearm during each offense, evidencing separate decisions to use it.

On these facts, the case fell outside the “continuing choice” scenario contemplated in Evans.

4) Mitigation, alleged bias, sentencing disparities, and substantive reasonableness

The panel rejected as frivolous any claim that the court ignored mitigation (youth and traumatic upbringing), noting that McDowell stated at sentencing that the court had adequately addressed his mitigation arguments—bringing the case within United States v.  Donelli.

The claim of judicial bias based on the judge’s desire to “send a message” was rejected because general deterrence is a statutory sentencing factor under 18 U.S.C. § 3553(a)(2)(B), and United States v. Saldana-Gonzalez supports the propriety of deterrence-focused reasoning.

On sentencing disparities, the panel emphasized the lack of developed comparison details (codefendants’ histories/sentences) and relied on the presumption of reasonableness described in United States v. Melega and United States v. Williams, noting in particular that the concurrent 132-month terms were below the guideline range and the 84-month § 924(c) term was mandatory consecutive time.

5) Supervised release condition and restitution

Restitution was deemed unchallengeable because McDowell received the PSR’s restitution calculation and did not object, which the panel treated as waiving appellate review under United States v.  Harris.

As to the supervised-release condition allowing probation to visit him at work or school, the panel found the district court’s explanation sufficient under United States v. Douglas and supported by analogy to probation-visit discretion recognized in United States v. Armour. The district court tied the condition to compliance monitoring and officer safety and emphasized the limitation that visits be “reasonable.”

Impact

Although explicitly labeled NONPRECEDENTIAL DISPOSITION, the order is still informative in several ways:

  • Rule 11 practice: It underscores how the Seventh Circuit evaluates a missing “persist in not guilty” advisement—looking to the broader record (plea agreement + colloquy) to determine whether any plain error exists.
  • § 924(c) litigation posture: It signals that, within the circuit, arguments that Borden dislodges completed Hobbs Act robbery as a § 924(c) predicate remain foreclosed by United States v. Claybron.
  • Guidelines error analysis: It provides a practical example of how “units” under U.S.S.G. § 3D1.4 can render an enhancement dispute harmless even if the enhancement is questionable under cases like United States v. White.
  • Firearm-enhancement boundaries post-Evans: It clarifies that multi-day sprees with repeated brandishing are unlikely to be treated as a single “continuing choice” that would bar firearm enhancements on non-§ 924(c) counts.
  • Appellate preservation: It reiterates the high costs of (i) affirming guideline calculations (waiver under United States v. Boyle) and (ii) failing to object to PSR restitution calculations (barriers under United States v.  Harris).

Complex Concepts Simplified

  • Anders procedure: If appointed counsel concludes an appeal has no nonfrivolous issues, counsel may seek to withdraw by filing an Anders brief. The court independently checks for any arguable issue before allowing withdrawal and dismissing/deciding the appeal.
  • Plain error: A demanding standard applied when an issue was not raised below. The defendant generally must show an obvious legal mistake that likely changed the outcome and seriously affects the fairness or integrity of proceedings.
  • “Crime of violence” under § 924(c): A qualifying predicate offense triggers mandatory consecutive penalties for firearm use. Here, the Seventh Circuit treated completed Hobbs Act robbery as qualifying under existing circuit precedent.
  • Guidelines “grouping” and “units”: Some counts are combined (“grouped”) when they represent essentially the same harm; others are not. When not grouped, the guidelines use “units” to calculate how much additional punishment is added for multiple counts. Even if one count’s offense level drops, the final range may not change if the unit total still yields the same increase.
  • Waiver vs. forfeiture: Waiver is an intentional relinquishment (often ending appellate review), while forfeiture is a failure to timely object (often allowing only plain-error review). The panel treated McDowell’s guideline affirmation as waiver.

Conclusion

United States v. Davario McDowell applies established Seventh Circuit doctrine to conclude that no nonfrivolous appellate issues existed: a Rule 11 “persist” omission was not plain error when the right was otherwise communicated; completed Hobbs Act robbery remains a § 924(c) predicate after Borden v. United States per United States v. Claybron; several guideline challenges were waived, meritless, or harmless; deterrence-based sentencing remarks did not show bias; and restitution/conditions challenges failed due to lack of objection or adequate justification. Even as a nonprecedential order, it offers a clear, practice-oriented map of how the Seventh Circuit screens plea, § 924(c), guidelines, and supervision issues in the Anders posture.