United States v. Larry Victor , 719 F.3d 1288 ( 2013 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12809
Non-Argument Calendar
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D.C. Docket No. 0:11-cr-60246-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY VICTOR,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 27, 2013)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:
Larry Victor appeals his 121-month sentence imposed after he pleaded
guilty to bank robbery, in violation of 18 U.S.C. § 2113(a) (Count 1), and
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brandishing a firearm in furtherance of a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(ii) (Count 2). After careful review, we affirm.
I.
On September 22, 2011, Victor entered a Pembroke Pines, Florida, credit
union with his hand in his jacket pocket as if concealing a firearm. 1 Victor found a
lobby employee and, while holding in his pocket what the employee believed to be
a gun pointed at her, directed her to the teller line. Victor yelled that he had a gun
and would kill any bank employee who did not comply with his demands. With
the lobby employee frozen in fear beside him, Victor demanded money from the
tellers, who gathered cash from their drawers. Meanwhile, an employee in the
bank’s office called the local police department.
When police arrived on the scene, Victor had fled in a car driven by a friend.
Officers gave chase, and Victor brandished an assault rifle from the rear window of
the car, pointing it at the pursuing officers. When the officers finally apprehended
Victor, he admitted that he robbed the bank while holding the assault rifle’s clip in
his jacket pocket to fool bank employees into believing he was armed, and that he
had aimed the rifle at the officers who followed him. Victor ultimately pleaded
guilty to the bank robbery and to brandishing the assault rifle in furtherance of that
crime.
1
We recite the events as reflected in the presentence investigation report’s factual description of
the offense conduct, to which Victor did not object.
2
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Count 2 – brandishing the assault rifle – carried a statutory mandatory
minimum seven-year sentence to run consecutive to any other term of
imprisonment. See U.S.S.G. § 3D1.1(b)(1). For Count 1, the bank robbery, the
presentence investigation report (PSI) the probation office prepared calculated a
base offense level of 20. See id. § 2B3.1(a). The PSI calculated a two-level
enhancement under § 2B3.1(b)(4)(B) for Victor’s physical restraint of a person
(the lobby employee) to facilitate commission of the robbery. After an additional
enhancement for taking the property of a financial institution and a reduction for
acceptance of responsibility, Victor’s total offense level was 21. Combined with a
criminal history category of I, this yielded a guidelines range of 37 to 46 months’
imprisonment on Count 1, to run consecutively with a range of 7 years to life on
Count 2.
Victor objected to the physical-restraint enhancement, arguing that he did
not physically touch the lobby employee and moved her only a few steps. The
district court overruled the objection. Victor also requested a downward variance,
but the district court rejected his request, citing the sentencing factors listed in 18
U.S.C. § 3553(a). Ultimately, the district court sentenced Victor to 37 months’
imprisonment on Count 1, to be served consecutively to the mandatory minimum 7
years’ imprisonment on Count 2. This is Victor’s appeal.
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II.
Victor first argues the district court erred in applying the two-level physical-
restraint enhancement, reasoning that his conduct did not amount to physical
restraint because he simply walked behind the lobby employee for a short distance
without touching her. See U.S.S.G. § 2B3.1(b)(4)(B). We review a sentencing
court’s findings of fact for clear error and its application of the guidelines de novo.
United States v. Newman, 614 F.3d 1232, 1235 (11th Cir. 2010). 2 The government
bears the burden of establishing the applicability of a sentencing enhancement by a
preponderance of the evidence. United States v. Turner, 626 F.3d 566, 572 (11th
Cir. 2010).
Section 2B3.1(b)(4)(B) “provides an enhancement for robberies where a
victim was . . . physically restrained by being tied, bound, or locked up.” U.S.S.G.
§ 2B3.1, cmt. background; see also id. § 1B1.1 cmt. (n.1(K)). We have made
clear, however, that the enhancement is not limited to those examples it provides,
but also applies when the defendant’s conduct “ensured the victims’ compliance
and effectively prevented them from leaving” a location. United States v. Jones,
32 F.3d 1512, 1518-19 (11th Cir. 1994); see also United States v. Whatley, No. 11-
14151, — F.3d — , 2013 WL 2382278, at *16 (11th Cir. June 3, 2013). Here, by
2
Circuit precedent forecloses the government’s argument that, because Victor objected to the
enhancement after presentation of the PSI but not after imposition of the sentence, the objection
is waived. United States v. Weir, 51 F.3d 1031, 1033 (11th Cir. 1995).
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threatening the lobby employee with what the employee believed to be a gun to
prevent her from escaping, Victor physically restrained her within the guidelines’
meaning. See Jones, 32 F.3d at 1519. The fact that Victor was not actually armed
with a gun at the time is immaterial – he intended to and did make the lobby
employee believe he had one so that she was forced to comply. And, although
Victor argues he did not move the employee for a significant distance, §
2B3.1(b)(4)(B) contains no requirement that the victim be moved at all. See
Whatley, 2013 WL 2382278, at *16 (explaining that the principal distinction
between U.S.S.G. § 2B3.1(b)(4)(A)’s abduction enhancement and (b)(4)(B)’s
physical-restraint enhancement is the movement of a victim to a “different
location”). For these reasons, the district court did not err in applying the
enhancement.
III.
Victor next challenges the substantive reasonableness of his sentence. He
argues that he was desperate for money at the time, had no criminal record, and
expressed remorse for his offense, all of which weighed in favor of a sentence well
below his guidelines range. We review the reasonableness of a sentence for an
abuse of discretion. 3 Gall v. United States, 552 U.S. 38, 41 (2007). “We may set
3
The government contends we should review Victor’s substantive-reasonableness claim only for
plain error. But we need not decide if plain-error review applies because we conclude there was
no error, plain or otherwise.
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aside a sentence only if we determine, after giving a full measure of deference to
the sentencing judge, that the sentence imposed truly is unreasonable.” United
States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en banc).
The district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in § 3553(a), including the need to
reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct. 18 U.S.C. § 3553(a). We examine the
reasonableness of a sentence mindful of the totality of the circumstances. Gall,
552 U.S. at 51. “The party challenging the sentence bears the burden to show it is
unreasonable in light of the record and the § 3553(a) factors.” United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
We conclude that Victor has not demonstrated his sentence was
substantively unreasonable. His 121-month sentence was within the applicable
guideline range, and we ordinarily expect such a sentence to be reasonable. United
States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). And his sentence is supported
by the § 3553(a) factors, which the district court discussed at length. The court
considered the nature and circumstances of Victor’s offenses, emphasizing that,
even when officers arrived on the scene, Victor “prepared himself to respond
forcibly to them.” See 18 U.S.C. § 3553(a)(1). The court also considered Victor’s
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history and characteristics, explaining that Victor had no criminal history, a
supportive family, and a remorseful attitude. See id. And the court stressed the
need for Victor’s sentence to “reflect the seriousness of this crime,” “promote
respect for the law,” and serve as a deterrent. See id. § 3553(a)(2). Based on these
carefully considered factors, we do not agree that the district court’s failure to
impose a below-guidelines sentence was unreasonable.
AFFIRMED.
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