United States v. Terrell Carter , 536 F. App'x 294 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-1245
_____________
UNITED STATES OF AMERICA
v.
TERRELL K. CARTER,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 08-cr-00262-001)
District Judge: Hon. John E. Jones, III
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Submitted Under Third Circuit LAR 34.1(a)
September 10, 2013
Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges.
(Filed: September 12, 2013)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Terrell K. Carter appeals a sentence of 115 months in prison imposed by the
United States District Court for the Middle District of Pennsylvania. For the following
reasons, we will affirm.
I. Background
Carter and three co-conspirators – co-defendant Jovan Williamson and unindicted
co-conspirators Jacinda Bonilla and Trista Falls – agreed to rob the Altoona First Savings
Bank (the “Altoona Bank” or the “Bank”), in Altoona, Pennsylvania. The group stole a
car in Williamsport, Pennsylvania, and, in the early morning hours of November 16,
2007, drove it from Williamsport to Altoona to carry out the conspiracy. After arriving
in Altoona, Falls returned home, and the remaining co-conspirators attempted to rob the
Bank. Shortly before 9:00 a.m., Carter and Williamson placed a blue bag near the rear of
the Bank. While Carter waited behind the Bank in the stolen car, Williamson phoned in a
bomb threat, telling a Bank employee that “he had put three bombs on the roof and two
outside and that he was a professional and that [she] needed to follow his directions or
else he was going to blow up the bank.” (App. at 147.) Frightened by the bomb threat,
Bank employees immediately evacuated and locked the building, thwarting the robbery
attempt. The co-conspirators returned to Williamsport empty handed.
Several months later, a federal grand jury in the Middle District of Pennsylvania
indicted Carter, charging him with one count of Hobbs Act conspiracy to commit
robbery, in violation of 18 U.S.C. § 1951, for the attempted robbery of the Altoona Bank,
one count of using force, violence, and intimidation to steal $8,500 in a separate bank
robbery in Jersey Shore, Pennsylvania, in violation of 18 U.S.C. §§ 2113(a) and (d), and
additional charges that are not relevant to this appeal. Carter pleaded not guilty to all
counts. The jury found him guilty of conspiring to rob the Altoona Bank, but it was
unable to reach a verdict on the charge pertaining to the Jersey Shore bank robbery. He
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was acquitted of all other charges. In the face of a retrial for the Jersey Shore robbery
charge, Carter reached a plea agreement with the government as to that charge. 1
With respect to the conviction for Hobbs Act conspiracy to rob the Altoona Bank,
Carter filed a motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules
of Criminal Procedure, arguing that venue did not lie in the United States District Court
for the Middle District of Pennsylvania, where he was tried, because the Altoona Bank is
located in the Western District. The District Court denied that motion, concluding that
venue was proper because, “while it is true that the victim was located in the Western
District,” some conspiratorial conduct took place in Williamsport, which is in the Middle
District. (App. at 5.)
The United States Probation Office prepared a presentence report (“PSR”) that
included a number of calculations based on the United States Sentencing Guidelines (the
“Guidelines” or “U.S.S.G.”). Of relevance to this appeal, Carter challenged a
determination in the PSR that the bomb threat constituted a threat of death, justifying a
two-level increase in his offense level pursuant to U.S.S.G. § 2B3.1(b)(2)(F). He also
objected to the addition of two criminal history points, which elevated his criminal
history category from V to VI, for his 2002 conviction under a Pennsylvania statute that
prohibits “malicious[] loiter[ing] or malicious[] prowl[ing]” at night “around a dwelling
house or any other place used wholly or in part for living or dwelling purposes, belonging
to or occupied by another.” 18 Pa. Cons. Stat. Ann. § 5506 (the “Malicious Loitering
1
As part of the plea agreement, Carter agreed to waive any appeal pertaining to
the Jersey Shore robbery charge.
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Statute”). Carter argued that the inclusion of his conviction under the Malicious
Loitering Statute in calculating his criminal history score was improper because U.S.S.G.
§ 4A1.2(c)(2) provides that “[l]oitering” offenses, or offenses that are “similar to”
loitering, “by whatever name they are known, are never counted” in computing a criminal
history score.
Prior to the sentencing hearing, the District Court ruled on Carter’s objections to
the PSR. Although the Court sustained some of his objections, it overruled his objections
to the offense level enhancement for using a threat of death and to the increase in his
criminal history score for the conviction under the Malicious Loitering Statute. After the
Court ruled on all of Carter’s objections, the Probation Office submitted an updated
advisory sentencing guideline range of 92 to 115 months in prison, based on an offense
level of 23 and a criminal history category of VI. At the conclusion of the sentencing
hearing, the District Court imposed a sentence of 115 months in prison, a $200 special
assessment, three years of supervised release, and $8,500 in restitution for the Jersey
Shore bank robbery.
Carter then filed this timely appeal.
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II. Discussion2
On appeal, Carter reasserts three arguments that were rejected by the District
Court. First, he claims that venue in the Middle District was improper because the
government’s evidence failed to “establish that any substantial step in the attempted
robbery of the Altoona Bank occurred” there. (Appellant’s Br. at 10.) Second, he insists
that the bomb threat did not constitute a threat of death because none of the Altoona Bank
employees actually saw any bomb and none testified that they feared they might die.
Finally, he argues again that his 2002 conviction under the Malicious Loitering Statute
should not have been used to increase his criminal history score. We examine those
arguments in turn.
A. Venue
The Hobbs Act does not contain a specific venue provision. When Congress has
“not indicate[d] where [it] consider[s] the place of committing the crime to be,” we
determine venue “from the nature of the crime alleged and the location of the act or acts
constituting it.” United States v. Rodriguez-Moreno, 526 U.S. 275, 279 & n.1 (1999)
(quoting United States v. Anderson, 328 U.S. 699, 703 (1946)) (internal quotation marks
2
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). “On appeal from the grant
or denial of a motion for judgment of acquittal, this Court exercises plenary review and
independently applies the same standard as the district court.” United States v. Brodie,
403 F.3d 123, 133 (3d Cir. 2005). “[W]e exercise plenary review over the District
Court’s venue determination.” United States v. Pendleton, 658 F.3d 299, 302 (3d Cir.
2011). Finally, “[w]e review the District Court’s interpretation of the Sentencing
Guidelines de novo, and scrutinize any findings of fact for clear error.” United States v.
Cespedes, 663 F.3d 685, 688 (3d Cir. 2011) (quoting United States v. Aquino, 555 F.3d
124, 127 (3d Cir. 2009) (internal quotation marks omitted).
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omitted). The Hobbs Act criminalizes not only robberies that affect interstate commerce,
but also attempts and conspiracies to commit such robberies. See 18 U.S.C. § 1951(a)
(subjecting to criminal penalty anyone who “in any way or degree obstructs, delays, or
affects commerce … by robbery … or attempts or conspires so to do”). Carter was
convicted of conspiracy to commit Hobbs Act robbery, and the essential elements of such
a conspiracy are “(1) a shared unity of purpose, (2) an intent to achieve a common goal,
… (3) an agreement to work together toward the goal,” United States v. Perez, 280 F.3d
318, 342 (3d Cir. 2002) (internal quotation marks omitted), and (4) the commission of an
overt act to further the conspiracy, United States v. Manzo, 636 F.3d 56, 66 (3d Cir.
2011). “When the crime consists of distinct acts occurring in different places, venue is
proper where any part of the crime occurs.” United States v. Pendleton, 658 F.3d 299,
303 (3d Cir. 2011); see also 18 U.S.C. § 3237(a) (providing that when any offense is
begun in one district and completed in another, or committed in more than one district,
venue will lie in each).
We agree with the District Court that Carter and his co-conspirators committed
overt acts in furtherance of their Hobbs Act conspiracy in the Middle District. They stole
a car in Williamsport and used it in the attempted robbery. Moreover, they congregated
in Williamsport in the early morning hours, and traveled from there to Altoona to commit
the robbery. Given that “[v]enue in the prosecution for conspiracy may be laid in any
district in which any act in furtherance thereof was committed by any of the
conspirators,” United States v. Cohen, 197 F.2d 26, 28 (3d Cir. 1952) (internal quotation
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marks omitted), the District Court did not err in determining that those overt acts
established venue in the Middle District.
B. The “Threat of Death” Enhancement
Section 2B3.1(b)(2)(F) of the Guidelines calls for a two-level increase in a
defendant’s offense level if, during the commission of the relevant offense, the defendant
made “a threat of death.” A defendant need not “directly indicate that [he] intends to kill
or otherwise cause the death of the victim” to trigger § 2B3.1(b)(2)(F). United States v.
Figueroa, 105 F.3d 874, 878 (3d Cir. 1997) (quoting United States v. Alexander, 88 F.3d
427, 431 (6th Cir. 1996)) (internal quotation marks omitted). Rather, when determining
the existence of a “threat of death,” we focus on the “reasonable response of the victim of
the threat.” United States v. Thomas, 327 F.3d 253, 255 (3d Cir. 2003); see also U.S.S.G.
§ 2B3.1(b)(2)(F) cmt. 6. (“The court should consider that the intent of this provision is to
provide an increased offense level for cases in which the offender(s) engaged in conduct
that would instill in a reasonable person, who is a victim of the offense, a fear of death.”).
Under that standard, we have held that a robber’s mere statement that he has a gun
triggers the enhancement, even if unaccompanied by a specific death threat, because,
“[w]hen a robber announces, by word or by action, that he possesses a gun, he also is
communicating to the reasonable victim his intention to use that weapon.” Figueroa, 105
F.3d at 879. Even oblique threats can qualify for the “threat of death” enhancement. See
Thomas, 327 F.3d at 254 (holding that the following note was a death threat for purposes
of sentencing: “Do exactly what this says, fill the bag with $100s, $50s and $20s, a dye
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pack will bring me back for your ass, do it quick now.” (internal quotation marks
omitted)).
It is true, as Carter points out, that “[n]one of the bank employees observed a
bomb” (Appellant’s Br. at 11), but that does not mean that they did not have a reasonable
fear of death. In fact, there can be little doubt that the bomb threat constituted a threat of
death. As the Altoona Bank employee who answered the threatening call testified at trial,
co-defendant Williamson said that he had placed five bombs on or around the building,
that “he was a professional,” and that if she disobeyed his instructions he would “blow up
the bank.” (App. at 147.) If those facts were true (and, thankfully, none were), the
Altoona Bank employees were in imminent threat of deadly peril. See United States v.
Bomski, 125 F.3d 1115, 1118 (7th Cir. 1997) (finding a threat of death where the
defendant “placed a bag on the counter and told the teller: ‘this is a bomb’, followed by
‘give me all of your money’”).
For the same reasons, it is of no moment that none of the Altoona Bank employees
testified specifically at trial that they feared for their lives. Even if they did not explicitly
say that they interpreted the phone call as a threat of death, and, indeed, even if these
specific victims did not consider the situation life threatening (a circumstance that is
unlikely given that they immediately evacuated the building), a “reasonable person” in
their shoes would. U.S.S.G. § 2B3.1(b)(2)(F) cmt. 6; see also Bomski, 125 F.3d at 1118(holding that a bomb threat qualified for the “threat of death” enhancement). The
enhancement thus properly applies.
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C. “Malicious Loitering”
Under the Guidelines, “the default rule is that courts, when calculating a criminal
history score, should count prior misdemeanor convictions except when the Guidelines
expressly provide for exclusion.” United States v. Hines, 628 F.3d 101, 109-10 (3d Cir.
2010). The Guidelines list eight types of misdemeanors and petty offenses for exclusion,
stating that they, “and offenses similar to them, by whatever name they are known, are
never counted.” U.S.S.G. § 4A1.2(c)(2). The list includes “[l]oitering,” id., and Carter
contends that the District Court thus erred in counting his 2002 conviction under the
Malicious Loitering Statute. To succeed on his challenge, Carter must show either that
the Malicious Loitering Statute embodies the type of loitering expressly excluded by
§ 4A1.2(c)(2) from the criminal history score calculation, or that it is sufficiently “similar
to” it.
We confronted a similar challenge to a criminal history calculation in Hines. The
defendant in that case argued that the district court had incorrectly calculated his criminal
history score when it counted his four prior convictions under New Jersey’s loitering
statute, N.J. Stat. Ann. § 2C:33-2.1, which prohibits “[l]oitering for [the] purpose of
illegally using, possessing or selling [a] controlled substance.” We held in Hines that the
type of “loitering” contemplated by § 4A1.2(c)(2) is far different from the one described
in the New Jersey loitering statute. Whereas “loitering” in the Guidelines “refers to
loitering simpliciter,” defined as “the ‘criminal offense of remaining in a certain place
(such as a public street) for no apparent reason,’” Hines, 628 F.3d at 108 (quoting Black’s
Law Dictionary 1027 (9th ed. 2009)), or, in other words, “loitering in the least-culpable
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sense,” id. at 109, the New Jersey statute “targets ‘loitering plus’ – by which we mean …
loitering combined with the specific intent to obtain or distribute a controlled substance
unlawfully,” id. at 108. Because “the Guidelines’ plain text says only ‘loitering,’ and
nothing more,” we held that “the plain text of the Guidelines suggests that what they
describe is loitering simpliciter,” not loitering plus. Id. at 108-09.
Unlike the statute at issue in Hines, the Malicious Loitering Statute does not target
loitering with the specific intent to obtain or distribute illegal narcotics. Pennsylvania
courts have, however, interpreted the word “malicious[]” in the statute to require an
“intentional act, without legal justification or excuse, which has as its purpose injury to
the privacy, person or property of another.” Commonwealth v. De Wan, 124 A.2d 139,
141 (Pa. Super. Ct. 1956); see also Commonwealth v. Williams, 137 A.2d 903, 905 (Pa.
Super. Ct. 1958) (explaining that the term “maliciously” means “an intent to do a
wrongful act and that it is also used to define that state of mind of a person who does a
wrongful act intentionally and without legal justification or excuse” (internal quotation
marks omitted)). Given that interpretive gloss placed on the Malicious Loitering Statute
by Pennsylvania courts, we conclude that a conviction under that statute is not one for
merely loitering simpliciter.
Next, we must evaluate whether the Malicious Loitering Statute is sufficiently
“similar to” loitering simpliciter to render a conviction under it out of bounds for
purposes of calculating a criminal history score. To determine whether an offense is
sufficiently similar to an offense listed in § 4A1.2(c)(2), we apply a “multi-factor
approach,” using the following five factors: “(1) a comparison of punishments imposed
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for listed and unlisted offenses; (2) the perceived seriousness of the offense as indicated
by the level of punishment; (3) the elements of the offense; (4) the level of culpability
involved; and (5) the degree to which the commission of the offense indicates a
likelihood of recurring criminal conduct.” Hines, 628 F.3d at 110 (quoting U.S.S.G. §
4A1.2 cmt. n.12(A)) (internal quotation marks omitted).
The first factor weighs against a finding of similarity in this case. A conviction
under the Malicious Loitering Statute is a third-degree misdemeanor, 18 Pa. Cons. Stat.
Ann. § 5506, which is punishable by “a term of imprisonment, the maximum of which is
not more than one year,” id. § 106(b)(8). In contrast, for a misdemeanor to qualify for
exclusion under the Guidelines, it cannot “involve[] more than thirty days’ imprisonment
or [more than] one year of probation.” Hines, 628 F.3d at 111 (citing U.S.S.G.
§ 4A1.2(c)(1)). Given that the maximum sentence for Carter’s conviction is “more than
thirty days’ imprisonment,” the Malicious Loitering Statute is not “similar to” loitering
simpliciter under the first factor. See Hines, 628 F.3d at 111 (concluding that “[b]ecause
the potential six-month jail sentence for violating [New Jersey’s statute] § 2C:33-2.1(b) is
greater than the thirty-day line the Commission drew, … § 2C:33-2.1(b) is not ‘similar
to’ loitering simpliciter under the first factor”).
The second factor also weighs against a finding of similarity. For his conviction
under the Malicious Loitering Statute, Carter received a sentence of nine days to one year
in prison. Although that sentence represents a broad range of possible punishment, it
does entail at least some prison time, which distinguishes this case from Hines. See
Hines, 628 F.3d at 111 (holding that “[t]he second factor … suggests that § 2C:33-2.1(b)
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is ‘similar to’ loitering” because the defendant in that case “received a series of sentences
ranging from 10 to 90 days in jail, all of which were suspended”). Given that Carter
received actual jail time for his 2002 conviction, the second factor suggests that the
Malicious Loitering Statute is not “similar to” loitering simpliciter.
The third factor requires us to compare the elements of loitering simpliciter with
the elements of the Malicious Loitering Statute.3 The Malicious Loitering Statute targets
those who maliciously loiter or maliciously prowl around a dwelling at night time. 18 Pa.
Cons. Stat. Ann. § 5506. As already noted, the statute requires that the loitering or
prowling be done “maliciously” – in other words, with the specific intent to cause “injury
to the privacy, person or property of another.” De Wan, 124 A.2d at 141. In addition,
the statute requires the loitering and prowling to take place “at night time” and “around a
dwelling house or any other place used wholly or in part for living or dwelling purposes.”
18 Pa. Cons. Stat. Ann. § 5506. In contrast, loitering simpliciter requires “little more
than suspiciously remaining in a public place, and requires no specific intent element at
all.” Hines, 628 F.3d at 111-12. Given the requirements of specific intent and a specific
time and place, the elements of the Pennsylvania statute are not “similar to” loitering
simpliciter. See id. at 112 (concluding that, “because the elements of § 2C:33-2.1(b)
include a specific intent element that is absent from the non-culpable status crime
described by loitering simpliciter, … the elements of § 2C:33-2.1(b) are not ‘similar to’
the elements of loitering under the Guidelines”).
3
In evaluating this factor, we interpret the statute of the conviction “according to
state law and the Guidelines according to federal law.” Hines, 628 F.3d at 111.
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Fourth, we compare the levels of culpability involved for each offense.
“Culpability is another way of describing the mens rea a statute requires of each material
element of an offense.” Hines, 628 F.3d at 113. As a general matter, “if the mens rea of
two offenses are divergent, the offenses are not similar.” Id. Here, the mens rea of the
two offenses are dissimilar, as “loitering simpliciter requires merely being in a public
place with no apparent purpose,” id., while the Malicious Loitering Statute requires the
specific intent to cause “injury to the privacy, person or property of another,” De Wan,
124 A.2d at 141. The two offenses are accordingly dissimilar under the fourth factor.
See Hines, 628 F.3d at 113 (holding that “the culpability requirements are divergent
enough to render the offenses dissimilar under this portion of the Guidelines’ balancing
test”).
Finally, the government concedes that the fifth factor actually suggests similarity,
because neither type of conviction would indicate a likelihood of recurring criminal
conduct. In Hines, by way of contrast, the defendant had been “convicted under a statute
that targets people who intend to buy or sell controlled substances, and the Sentencing
Commission has indicated that such people, once convicted, tend to recidivate.” Hines,
628 F.3d at 113.
In sum, of the five factors, only one weighs in favor of concluding that the
Malicious Loitering Statute is “similar to” loitering simpliciter. That is not enough to
overcome the other four factors. See Hines, 628 F.3d at 113-14 (identifying one factor –
the degree of punishment the defendant received for his loitering-plus violations – that
weighed in the defendant’s favor, yet holding that “[t]hat is not enough in this case to
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overcome the other four” factors, and concluding that New Jersey’s loitering statute, N.J.
Stat. Ann. § 2C:33-2.1(b), “is not ‘similar to’ loitering under the Guidelines”).
Accordingly, we conclude that the Malicious Loitering Statute is not “similar to”
loitering simpliciter, and we see no error in the District Court’s application of the
Guidelines.
III. Conclusion
For the foregoing reasons, we will affirm the sentence imposed by the District
Court.
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