United States v. Morris , 713 F. App'x 777 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 9, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3074
(D.C. No. 2:16-CR-20022-JAR-3)
DANILLE MORRIS, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
The events underlying Danille Morris’s convictions and sentence—a bank
robbery, a car chase, wild gunshots, a rollover accident, and an attempted
carjacking—seem ripped from a movie script. But the 200-month sentence from
which she appeals is quite real. Exercising jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
BACKGROUND
Morris had an intimate relationship with Gary Jordan. On March 9, 2016,
Jordan asked her to be his getaway driver for a bank robbery. Bringing her
19-month-old daughter, Morris drove her 2003 Chevrolet Tahoe to pick up Jordan
and then another man, Jacob Smith. She drove the men as they looked for a good
target, eventually ending up at the First National Bank in Stilwell, Kansas.
Pretending to look for work, Morris went in and cased the bank, then reported
the number of employees to Jordan and Smith. Carrying handguns, Jordan and Smith
robbed the bank of more than $15,000 while Morris waited with the Tahoe running.
After the robbery, Jordan took the wheel. Morris was in the front passenger seat,
with Smith and Morris’ daughter in the backseat. Morris and Smith began putting the
money into a backpack.
Within minutes, police spotted and chased the Tahoe. For approximately
21 miles, Jordan drove at high speeds, evaded “stop sticks” the police deployed, ran
at least a half-dozen red lights, and drove on the sidewalk to get around traffic.
During the chase, Smith fired numerous shots at the pursuing police cars, hitting one
car near the driver’s door.
Believing that the police could not cross state lines, Morris told Jordan to head
for Missouri. Shortly after they entered Missouri, the chase ended when Jordan lost
control and rolled the Tahoe. None of the Tahoe’s occupants (including Morris’
daughter) was seriously injured, and officers were able to arrest Morris and Smith
2
with little trouble. Jordan, on the other hand, ran and tried to carjack another vehicle
before being apprehended.
Morris pleaded guilty to one count of armed bank robbery, in violation of
18 U.S.C. §§ 2113(a) & (d) and 2, and one count of using, carrying, brandishing, and
discharging firearms during and in relation to a crime of violence, and possessing
those firearms in furtherance of a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2. Her presentence report recommended increasing her offense
level by 8 levels for relevant conduct (2 levels for Jordan’s carjacking and another
6 levels for Smith’s firing on police officers). With these increases, the presentence
report established a Guidelines range of 70 to 87 months for the bank robbery. The
firearm conviction carried a mandatory 120-month consecutive sentence.
Suggesting she was a minor participant in the crimes, particularly with regard
to the relevant conduct, Morris requested an offense-level reduction under Sentencing
Guideline § 3B1.2. She also requested that the district court vary downward and
order a sentence totaling 150 months (30 months for the bank robbery and 120
months for the firearm conviction). The government opposed both requests and
moved for an upward variance. The district court denied the § 3B1.2 request and
declined to vary either downward or upward. It imposed a within-Guidelines
sentence of 80 months for the bank robbery and 120 months for the firearms
violation, for a total sentence of 200 months.
3
DISCUSSION
Morris raises two issues on appeal. First, she challenges the district court’s
denial of her § 3B1.2 request. Second, she challenges the substantive reasonableness
of her sentence.
I. Section 3B1.2 Adjustment
Sentencing Guideline § 3B1.2 establishes offense-level deductions for minimal
and minor participants. Morris relies on § 3B1.2(b), which provides a two-level
deduction for a minor participant. A “minor participant” is one “who is less culpable
than most other participants in the criminal activity, but whose role could not be
described as minimal.” U.S. Sentencing Guidelines Manual § 3B1.2, cmt. n.5
(U.S. Sentencing Comm’n 2016).
Morris has the burden of proving minor-participant status by a preponderance
of the evidence. United States v. Adams, 751 F.3d 1175, 1179 (10th Cir. 2014). A
minor-participant determination is a factual finding reviewed for clear error. Id. “To
constitute clear error, we must be convinced that the sentencing court’s finding is
simply not plausible or permissible in light of the entire record on appeal,
remembering that we are not free to substitute our judgment for that of the district
judge.” United States v. Garcia, 635 F.3d 472, 478 (10th Cir. 2011) (internal
quotation marks omitted).
While recognizing that Jordan and Smith did the robbing, Jordan was the
getaway driver, and Smith did the shooting, the district court found that Morris had
provided the Tahoe, had driven Jordan and Smith to the bank, and then had cased the
4
bank. The district court therefore denied the § 3B1.2(b) reduction because she had
“engaged in both the planning and provided the car that allowed for the robbery
itself.” R., Vol. 2 at 63.
Morris asserts that the district court improperly relied on her “essential role” in
the robbery, Aplt. Br. at 9, and it ignored her lower culpability in the relevant
conduct. We disagree. The district court explicitly noted what she did not do, but it
then determined that what she did do exceeded minor participation. On this record,
we cannot conclude that the district court’s findings were implausible or
impermissible.
“[A] defendant is not entitled to a minor-participant reduction merely because
[s]he is the least culpable among several participants in a jointly undertaken criminal
enterprise.” Adams, 751 F.3d at 1179 (internal quotation marks omitted). In Adams,
this court identified several cases in which defendants with roles similar to Morris’s
were denied minor-participant reductions. See id. at 1179-80. Morris’s arguments
how various factors would support a minor-participant reduction essentially seek to
have this court re-weigh the evidence, which we do not do on clear-error review.
See United States v. Gilgert, 314 F.3d 506, 515-16 (10th Cir. 2002).
II. Reasonableness of Sentence
Morris next argues that her sentence is unreasonable in light of the sentencing
factors set forth in 18 U.S.C. § 3553(a) and that the district court should have granted
the downward variance. These arguments invoke substantive reasonableness
analysis. See United States v. Smart, 518 F.3d 800, 804 (10th Cir. 2008) (“A
5
challenge to the sufficiency of the § 3553(a) justifications relied on by the district
court implicates the substantive reasonableness of the resulting sentence.”).
“We review sentences for reasonableness under a deferential
abuse-of-discretion standard.” Adams, 751 F.3d at 1181 (brackets and internal
quotation marks omitted). “A sentencing decision is substantively unreasonable if it
exceeds the bounds of permissible choice, given the facts and the applicable law.
Further, we presume a sentence is reasonable if it is within the properly calculated
guideline range.” United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013)
(brackets, citation, and internal quotation marks omitted). “[G]iven the district
court’s institutional advantage over our ability to determine whether the facts of an
individual case justify a variance . . . , we generally defer to its decision to grant, or
not grant, a variance based upon its balancing of the § 3553(a) factors.” United
States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008).
Morris argues that the district court gave too much weight to those factors
concerning the nature of the offense and too little weight to mitigating factors such as
her complete lack of criminal history. But we do not consider the § 3553(a) factors
de novo. See Smart, 518 F.3d at 808 (“[W]e must . . . defer not only to a district
court’s factual findings but also to its determinations of the weight to be afforded to
such findings.”). “[A]s long as the balance struck by the district court among the
factors set out in § 3553(a) is not arbitrary, capricious, or manifestly unreasonable,
we must defer to that decision even if we would not have struck the same balance in
the first instance.” United States v. Sells, 541 F.3d 1227, 1239 (10th Cir. 2008). And
6
although Morris disagrees with the district court’s balancing, she has failed to show
that the balance the court struck was arbitrary, capricious, or manifestly
unreasonable.
CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court
Gregory A. Phillips
Circuit Judge
7