By Andrea J. LaMontagne
Valparaiso University Law School
J.D. Candidate, 2016
Keyjacking, or Carjacking? Should it matter? These are the questions that recently faced the Seventh Circuit Court of Appeals, when it rendered a decision concerning a sentencing enhancement for an armed robbery gone amuck. The sentencing enhancement stemmed from the theft of car keys from a bank employee’s purse (a keyjacking), and the use of her vehicle as a getaway car (a carjacking).
On February 4, 2015, the Seventh Circuit Court of Appeals followed the example of its sister courts when it held that level sentencing enhancements are applicable when a carjacking results from armed robbery, regardless of whether the car keys were taken by a direct exhibition of force.
In June of 2013, Defendant Duryea Rogers was involved in an armed robbery where a bank employee’s car keys were taken and used to carjack her vehicle in an attempt to escape from FBI agents after the robbery failed. Rogers argued that he should not be given a sentencing enhancement for carjacking in addition to the three charges he pled guilty to. Ultimately, the Seventh Circuit Court of Appeals held that applying the enhancement was proper.
Rogers, Xavier Hardy, and other co-conspirators pointed their guns at the first employee to arrive at the Community Bank of Fishers, Indiana and forced her to enter the bank. Upon entering the bank, the employee was directed to do all of the things she normally did upon arrival, such as turning on lights and deactivating the alarms. However, because of the circumstances, the employee did not signal to other bank employees that it was safe for them to come in to the bank, as she otherwise would have done.
While the employee was attempting to open the bank’s vault under the watchful eye of Rogers, Hardy searched her purse and stole her car keys and identification. The bank employee was unable to open the bank vault due to a safety precaution that only allowed the vault to be opened in the presence of at least two bank employees. As a result, the robbery was unsuccessful, and the bank employee was left unharmed, lying in the break room with her hands and feet zip-tied
Rogers and Hardy left in the employee’s Chevy Equinox, while the co-conspirators fled in two other vehicles. However, FBI agents had been maintaining surveillance on one of the co-conspirators, as they suspected his involvement in other recent robberies. The agents, who had been surveying the co-conspirator, gave chase and eventually caught up to Hardy and Rogers after they deserted the employee’s vehicle and attempted to flee on foot.
Rogers pled guilty to three charges: conspiracy to commit bank robbery; armed bank robbery; and knowingly using, carrying, and brandishing a firearm during and in relation to a crime of violence. Because of his act of carjacking, the district court decided to apply a two-level enhancement in addition to the already applied enhancement for restraining the victim. Rogers objected and subsequently appealed on the grounds that the two-level enhancement for the theft of the motor vehicle was improper.
According to the U.S. Sentencing Commission (“USSC”) Guidelines, a two-level enhancement is given for robberies including a carjacking. A carjacking is defined as “the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation.” §2B3.1, cmt. n. 1.
Here, Rogers’ argument hedges on the fact that he did not use force when he took the car, and that he was neither taking the car directly from the person or from the presence of the owner of the vehicle. According to Rogers, his act was “keyjacking”, not carjacking, as far as the guidelines are concerned, because there was no further evidence of “force and violence or intimidation” as the guideline requires. On appeal, Rogers further argued that the mere rummaging around and finding keys in a purse did not constitute a holding of carjacking, because there was no force involved.
Under a similar fact pattern, the Sixth Circuit Court of Appeals found in United States v. Boucha, a case where after a robbery, an employee was forced by the defendant to surrender her keys; the two-level enhancement for carjacking was applicable.
Similarly, the Seventh Circuit Court held here that in order to fulfill the guidelines, “a defendant who takes a victim’s keys by force or threat of force, and who later takes the car, may be sentenced as if he took the victim’s car in the presence of the victim by force or threat of force.” The Seventh Circuit Court further held that since the employee was in the presence of a weapon at all relevant times during the robbery, it was reasonable to determine that the events took place through “force and violence or by intimidation.”
Regardless of whether a carjacking or a keyjacking has taken place after a robbery, in both the Sixth and Seventh Circuits it is apparent that such an act will enhance the sentencing of the guilty parties.