United States v. Joshua Newell , 596 F. App'x 203 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4147
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSHUA CARDELL NEWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00165-CCE-1)
Submitted: September 4, 2014 Decided: January 8, 2015
Before GREGORY, DUNCAN and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Greensboro, North
Carolina, Gregory Davis, Senior Litigator, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Winston-Salem, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Michael F. Joseph,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua Cardell Newell pleaded guilty to one count of
brandishing a firearm in connection with a violent crime, 18
U.S.C. § 924(c)(1)(A)(ii), and two counts of armed bank robbery,
id. § 2113(a), (d). Newell argues on appeal that the district
court erred at sentencing by applying a four-level enhancement
for abduction pursuant to U.S.S.G. § 2B3.1(b)(4)(A). For the
reasons that follow, we affirm.
I.
A.
On October 11, 2012, Newell robbed a branch of the Southern
Community Bank and Trust (“SCB”). When one of SCB’s tellers,
BV, approached the bank’s front door, Newell, armed with a gun
and wearing a ski mask, told BV to “open up.” Newell then
forced BV inside the bank. Once inside, Newell walked with BV
to the vault and ordered ES, a teller already in the bank, to
open it. In complying with Newell’s demands, both ES and BV
moved from the front of the bank to the vault. After ES opened
the vault, Newell took $101,000 and fled the bank on foot.
Roughly three months later, on January 7, 2013, Newell
robbed a branch of the Branch Banking and Trust Company
(“BB&T”). After EB, one of BB&T’s tellers, opened the bank’s
back door and let two fellow tellers in, Newell came up behind
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EB and pushed her inside the bank. Newell then ordered the
three tellers to walk to the vault and open it. After the
tellers attempted to open the vault without success, Newell
ordered the tellers at gunpoint to empty their cash drawers.
Newell took $7,650 from the drawers and left the bank.
B.
On April 30, 2013, a grand jury returned a four-count
indictment charging Newell with two counts of armed robbery and
two counts of brandishing a firearm in connection with those
robberies. Newell pleaded guilty to all but the fourth count,
which charged him with brandishing a firearm in connection with
the BB&T robbery. *
The Presentence Investigation Report (“PSR”), which the
trial court adopted in its entirety, recommended a four-level
enhancement pursuant to U.S.S.G. § 2B3.1(b)(4)(A) for abduction.
Newell objected to the enhancement, but the trial court found
that Newell had abducted the tellers by forcing them to move
into and within the banks. The court sentenced Newell to two
concurrent 97-month terms of imprisonment for Counts One and
*
The government agreed not to “oppose a motion to dismiss
the remaining count of the Indictment” if Newell pleaded guilty
to the other three counts. J.A. 18; see also Fed. R. Crim. P.
11(c)(1)(A). The district court granted the government’s motion
to dismiss this count at Newell’s sentencing. See J.A. 57, 60.
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Three, and a consecutive 84-month term of imprisonment for Count
Two.
II.
A.
In assessing whether a sentencing court properly applied
the Guidelines, “we review the court’s factual findings for
clear error and its legal conclusions de novo.” United States
v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).
B.
Newell makes two arguments on appeal. First, he argues
that the district court erroneously determined that he forced an
employee into each of the respective banks. Appellant’s Br. at
7–8. Second, he claims that “forcing the employees to move
around inside the bank branch does not satisfy the definition of
abduction” in U.S.S.G. § 1B1.1 cmt. n.1(A). Appellant’s Br. at
8. We reject Newell’s first argument, so we find it unnecessary
to consider his second argument.
The abduction enhancement applies “[i]f any person was
abducted to facilitate commission of the offense or to
facilitate escape.” U.S.S.G. § 2B3.1(b)(4)(A). The Guidelines
commentary defines “abducted” as when “a victim was forced to
accompany an offender to a different location.” Id. § 1B1.1
cmt. n.1(A). We apply a “flexible, case by case approach to
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determining when movement ‘to a different location’ has
occurred.” United States v. Osborne, 514 F.3d 377, 390 (4th
Cir. 2008).
Newell argues that the district court erroneously
determined that he forced an employee into each of the banks.
The trial court stated that “the robberies actually began
outside the bank, and the tellers were forced into the bank.”
J.A. 27. This finding is not clearly erroneous because the
facts recited in the PSR support the court’s finding, and Newell
presents no reason to believe that the PSR is unreliable. See
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990)
(holding that district courts may adopt findings in a
presentence report unless the defendant “make[s] a showing that
the information in the presentence report is unreliable, and
articulate[s] the reasons why the facts contained therein are
untrue or inaccurate”).
The PSR states that both tellers were outside their
respective banks when the robberies began. During the first
robbery, BV “went to the front door of the bank to enter the
door” when Newell, holding a handgun, told her to “open up.”
J.A. 72. The second robbery began when Newell, “holding a
pistol, . . . came up from behind [EB] and pushed her inside the
bank.” Id. Therefore, the trial court’s conclusion that the
robberies began outside the bank is not clearly erroneous.
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The PSR also supports the conclusion that Newell forced
the tellers inside the banks. As to the first robbery, the PSR
indicates that the teller did not enter the bank until after
Newell threatened her with a weapon. See id. As to the second
robbery, the PSR states that Newell pushed the teller through
the bank’s back entrance. See id. Therefore, the trial court’s
conclusion that Newell forced the tellers inside the banks is
not clearly erroneous. Accordingly, the district court did not
err in concluding that Newell’s actions constituted abduction
within the meaning of U.S.S.G. § 2B3.1(b)(4)(A). See United
States v. Davis, 48 F.3d 277, 278–79 (7th Cir. 1995) (applying
the abduction enhancement where a bank teller was inserting her
key into the bank’s outside door when the defendant announced
the robbery and forced her inside); cf. United States v.
Whooten, 279 F.3d 58, 61 (1st Cir. 2002) (noting that “the
abduction enhancement . . . applies whether the abduction is
carried out by threat or by physical force”).
III.
For the foregoing reasons, we affirm Newell’s sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court, and argument would not aid the decisional process.
AFFIRMED
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