United States v. Jennifer Boyles , 496 F. App'x 364 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4325
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JENNIFER ANN BOYLES,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00373-TDS-1)
Submitted: October 30, 2012 Decided: November 13, 2012
Before AGEE, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Harry L. Hobgood, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jennifer Ann Boyles pled guilty to accessory after the
fact to robbery, 18 U.S.C. § 3 (2006), and received a term of
eight months’ imprisonment. Boyles appeals her sentence,
arguing that the district court used an incorrect legal standard
in overruling her objection to an increase for a firearm that
was “otherwise used,” as that term is defined in U.S. Sentencing
Guidelines Manual § 2B3.1 (2011). We affirm.
Boyles drove Anthony Eric Hill and his friend, Lindsey
Lee Robinson, to a convenience store, waited while Hill
attempted to rob the store, then drove Hill to a hospital after
he pointed his gun at the store clerk and the clerk’s husband
shot him. Boyles previously had driven Hill before and after he
committed an armed robbery. She was aware on this occasion that
Hill intended to rob the store and saw a gun in his hand when he
got out of her car to commit the robbery. Boyles was initially
charged with robbery in conjunction with Hill and Robinson, but
pled guilty to an information charging her with being an
accessory after the fact to the robbery. She cooperated with
the government and testified at Robinson’s trial.
In the presentence report, the probation officer
calculated Boyles’ offense level by beginning with the base
offense level of 20 from § 2X3.1 (Accessory After the Fact) and
USSG § 2B3.1 (Robbery), adding 6 levels for an offense in which
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a firearm is not discharged, but is “otherwise used,” see
§ 2B3.1(b)(2)(B), and subtracting 6 levels as directed by
§ 2X3.1. With a 3-level reduction for acceptance of
responsibility, see USSG § 3E1.1, Boyles’ total offense level
was 17. She was in criminal history category I, which gave her
a recommended advisory Guidelines range of 24-30 months. Boyles
objected to the 6-level increase for a gun that was “otherwise
used” on the ground that the enhancement was applicable only if
she “knew or should have known” 1 that Hill would “otherwise use”
the firearm in the commission of the robbery, i.e., point the
firearm at the clerk. Boyles contends that there was no
evidence to support that conclusion.
The district court overruled Boyles’ objection,
finding that “it was reasonably foreseeable to Miss Boyles that
Mr. Hill would have used the firearm, as that term is
contemplated within the guidelines.” When defense counsel
protested that the mere fact that Boyles saw Hill with the gun
drawn as he went into the store did not establish that she had
“reason to know” that he would do more than brandish it, the
court noted that her “case would be stronger if [Hill] walked
out of the car with the handgun drawn and then said, I am not
going to point it at anybody. I am not going to do anything
1
See USSG § 2X3.1 cmt. n.1; USSG § 1B1.3 cmt. n.10.
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with it.” The district court varied Boyles’ sentence downward
to 12 months based on the 18 U.S.C. § 3553(a) (2006) sentencing
factors, then reduced the sentence again on the government’s
motion for a substantial assistance departure, which resulted in
an 8-month sentence.
Generally, we review a sentence for reasonableness
under an abuse of discretion standard, which requires
consideration of both the procedural and substantive
reasonableness of the sentence. Gall v. United States, 552 U.S.
38, 51 (2007). Improper calculation of the Guidelines range
constitutes significant procedural error. Id. The district
court’s determination of the offense level for the underlying
offense within the meaning of § 2X3.1(a) is an issue of
Guidelines interpretation that is reviewed de novo. United
States v. Cross, 371 F.3d 176, 180 (4th Cir. 2004). However,
properly preserved claims of procedural error are also reviewed
for harmlessness. Puckett v. United States, 556 U.S. 129, 141
(2009); United States v. Savillon-Matute, 636 F.3d 119, 123 (4th
Cir.), cert. denied, 132 S. Ct. 454 (2011). Although Boyles did
not object to the district court’s use of the term “reasonably
foreseeable,” “[a] party may preserve a claim of error by
informing the court–when the court ruling or order is made or
sought–of the action the party wishes the court to take[.]”
4
Fed. R. Crim. P. 51(b) (quoted in United States v. Lynn, 592
F.3d 572, 577-78 (4th Cir. 2010.)
As discussed above, Application Note 1 to § 2X3.1
directs the district court to apply the base offense level for
the underlying offense, plus any specific offense
characteristics “that were known, or reasonably should have been
known” to the defendant. Application Note 1 to § 2X3.1 also
cites Application Note 10 to USSG § 1B1.3 (Relevant Conduct),
which states that the defendant’s relevant conduct, for a
conviction of accessory after the fact, includes “all conduct
relevant to determining the offense level for the underlying
offense that was known, or reasonably should have been known, by
the defendant.”
Boyles contends that the district court erred
procedurally by finding that Hill’s use of his firearm during
the robbery was “reasonably foreseeable” 2 to her, rather than
applying the “known or reasonably should have been known”
standard prescribed for accessory after the fact convictions.
Boyles further contends that the error was not harmless because
the two standards are significantly different and the district
court failed to make factual findings under the correct
standard.
2
See USSG § 1B1.3(a)(1)(B).
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Boyles relies on an unpublished Fourth Circuit case
and two Sixth Circuit cases, all of which are
distinguishable. See United States v. Palmer, No. 97-4684, 1998
WL 654442 (4th Cir. Sept. 21, 1998) (unpublished); United States
v. Anderson, 416 F. App’x 533 (6th Cir. 2011); United States v.
Wuliger, 981 F.2d 1497, 1504 (6th Cir. 1992). The defendant
in Palmer only became involved in the crime several days after
the crime was committed. Although the other decisions deal with
language similar to the terms at issue in this case, they do not
address accessory after the fact sentences and are not relevant
here.
The government argues that, if the district court
erred, the error was harmless, pointing out that courts have
used the terms “known or reasonably should have been known” and
“reasonably foreseeable” interchangeably in discussing sentences
imposed for an accessory after the fact conviction. See United
States v. Goodbear, 676 F.3d 904, 911 (9th Cir. 2012); United
States v. Martinez, 342 F.3d 1203, 1209 n.6 (10th Cir. 2003).
We conclude that the district court erred by using the
term “reasonably foreseeable” in making its finding on Boyles’s
objection to the 6-level increase for a firearm otherwise used;
however, the error was harmless. As Boyles notes in her reply
brief, the “reasonably foreseeable” standard is prospective,
that is, the district court asks whether the defendant could
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anticipate that his co-defendants might take certain actions and
thus makes himself accountable for their conduct by continuing
in the joint criminal activity with that knowledge. By
contrast, the “known or reasonably should have been known”
standard is retrospective; the court asks whether the defendant
knew or should have known that certain conduct had already
occurred when he involves himself in the crime by assisting the
criminal.
Here, Boyles actually participated in the robbery but
was allowed to plead guilty to accessory after the fact. The
facts of her case were thus atypical for an accessory after the
fact conviction, and may explain the district court’s use of the
“reasonably foreseeable” test. We are satisfied that the
court’s analysis would not have been different had it used the
“known or reasonably should have been known” test. The facts
before the court would still have been that Boyles had
previously participated in an armed robbery committed by Hill
and that she saw Hill go into the store with a gun in his hand
to commit the current robbery. Her participation was not
conditioned, either before or after the robbery, on any
limitations on Hill’s use of the gun. We conclude that the
district court’s error did not affect its findings, and that the
district court correctly determined that Boyles was accountable
for Hill’s use of the firearm during the robbery.
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We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
Court and argument would not aid the decisional process.
AFFIRMED
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