U.S. v. Adams ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-2829
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARION JACKSON ADAMS,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
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(July 8, 1993)
( )
Before GARWOOD, JONES and EMILIO M. GARZA Circuit Judges.
GARWOOD, Circuit Judge:
In this appeal from the sentence imposed following his plea of
guilty to three charges of bank robbery, defendant-appellant Marion
J. Adams (Adams) challenges only the district court's denial of his
request for a downward departure in consideration of his disclosure
of prior offenses, pursuant to U.S.S.G. § 5K2.16, policy statement
(p.s.). We affirm.
Factual Background
In June and July of 1991, Adams went on a three-week spree in
which he robbed three banks, one in Mobile, Alabama, and two in
Houston, Texas, in an effort to obtain money to support his drug
habit. The modus operandi in each robbery was similar: in each,
Adams approached a teller for help with a simple transaction; when
the teller opened the cash drawer, he jumped up on the counter,
grabbed money from the drawer, and fled from the bank.1
Adams was implicated in the Alabama robbery when the
description of the robber provided by persons in the bank at the
time of the robbery proved to be similar to that of the defendant,
then known as Jay Adams, who at that time was under investigation
by the Mobile Police Department for burglary and illegal possession
of credit cards taken in a burglary. Pictures of "Jay Adams" were
included in a photographic lineup presented to witnesses of the
bank robbery; three witnesses positively identified defendant as
the bank robber.
On July 24, 1991, officers of the Houston Police Department
stopped Adams for a traffic violation. When a routine computer
1
On June 17, 1991, Adams robbed a branch of the Altus
Bank in Mobile, Alabama. He approached a teller and requested
change for one dollar; when the teller opened the cash drawer, he
vaulted on top of the counter, grabbed $4,110, including $100 in
bait money, and fled.
On June 24, 1991, Adams entered Bank Plus Savings
Association in Houston, Texas, and asked a teller to change
quarters into dollar bills. When she opened the cash drawer, he
pretended to have a gun in a pocket and told the teller to give
him money and move away from the drawer. Adams jumped onto the
counter, stole approximately $2,300, and ran.
On July 2, 1991, the defendant entered First Gibraltar
Savings Bank in Houston and handed a teller a note informing her
that he was robbing the bank and instructing her to open the
drawer and back away from it. When the drawer was open, he
jumped on the counter, and removed money. He took money in the
same fashion from another teller before fleeing the bank. Adams
stole approximately $2,000 in this robbery.
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check revealed that he was wanted in Alabama for escape from an
Alabama state prison, the officers took him into custody. Adams
later confessed to the three bank robberies.
Proceedings Below
On December 19, 1991, Adams was indicted in the United States
District Court for the Southern District of Alabama on one count of
bank robbery, in violation of 18 U.S.C. § 2113(a).
On February 5, 1992, in the United States District Court for
the Southern District of Texas, Adams was charged by information
with two counts of bank robbery, in violation of 18 U.S.C. §
2113(a), stemming from the robbery of the two Houston banks. Adams
waived indictment in the Texas proceedings and agreed to a transfer
of the Alabama case to the Southern District of Texas, where it was
later consolidated with the other two bank robbery charges pending
against him.
At his rearraignment, Adams pleaded guilty to all three counts
of bank robbery in exchange for the government's promise to
stipulate to Adams's acceptance of responsibility and for its
agreement not to file additional charges related to the three bank
robberies.
A presentence report (PSR) prepared by Adams's probation
officer calculated his offense level at 23, with a criminal history
category of VI, resulting in an imprisonment range of 92 to 115
months.2 In a sentencing recommendation to the district court, the
2
The base offense level for robbery is 20, pursuant to
U.S.S.G. § 2B3.1. Adams received a two-level increase because
his offense involved a financial institution. U.S.S.G. §
3
probation officer recommended that the court depart upward to
sentence Adams to 125 months' imprisonment, a departure justified
by the defendant's extensive criminal history, which included
convictions for burglary not utilized in the computation of his
criminal history category.
In his objections to the PSR, Adams argued, inter alia, that
he was eligible for a downward departure pursuant to U.S.S.G. §
5K2.16, p.s., for his actions in disclosing his involvement in the
bank robberies.
The government filed a sentencing memorandum urging the
district court to sentence Adams pursuant to the career offender
provisions of U.S.S.G. § 4B1.1. In the alternative, the government
moved for an upward departure on the grounds that the criminal
history category otherwise applicable was inadequate.
The probation officer reconsidered his earlier recommendation
and filed an addendum to the PSR recommending that Adams be
considered a career offender. The applicable base offense level
was 32; a two-level reduction for acceptance of responsibility
lowered his final offense level to 30.3 With a criminal history
category of VI, his imprisonment range was 168 to 210 months. The
2B3.1(b)(1). The grouping rules of section 3D1.4(a) required an
adjustment by three units for the three counts of robbery,
yielding an offense level of 25. Finally, Adams received a two-
level reduction for acceptance of responsibility, generating a
net total offense level of 23.
3
The career offender provisions of U.S.S.G. § 4B1.1
establish an offense level of 32 for offenses for which the
statutory maximum is twenty years or more, but less than twenty-
five years. The statutory maximum for Adams's bank robbery
convictions is twenty years, pursuant to 18 U.S.C. § 2113(a).
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addendum also noted, in response to Adams's objections, that
several witnesses in Alabama had identified him and therefore his
offenses would not have remained undiscovered long had he not
already confessed them.
The district court denied any departure upward or downward and
sentenced Adams, as a career offender, to concurrent terms of 200
months' imprisonment on each count, imposed a 3-year period of
supervised release, and ordered Adams to pay restitution in the
amounts of $4,700.10 to Altus Bank in Mobile and $2,196 to First
Gibraltar in Houston.
Adams appeals only the district court's refusal to depart
downwards pursuant to section 5K2.16, p.s.
Discussion
Adams contends that the district court ought to have departed
downward from the applicable guideline range based on his voluntary
disclosure of the three bank robberies after he was arrested,
during a routine traffic stop, on the outstanding escape-related
warrant. He claims that there was no proof that the law
enforcement authorities were investigating him for the Houston bank
robberies or that they had found any connection between those
robberies and the one in Mobile, Alabama.
We will uphold a sentence imposed pursuant to the guidelines
unless it is imposed in violation of law, or is the result of
incorrect application of the guidelines, or is a departure from the
applicable guideline range and is unreasonable. 18 U.S.C. §
3742(e); United States v. Buenrostro, 868 F.2d 135, 139 (5th Cir.
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1989), cert. denied, 110 S. Ct. 1957 (1990). We review the district
court's legal interpretations of the guidelines de novo, United
States v. Suarez, 911 F.2d 1016, 1018 (5th Cir. 1990), and factual
findings for clear error, United States v. Mourning, 914 F.2d 699,
704 (5th Cir. 1990). A factual finding is not clearly erroneous if
it is plausible in light of the record read as a whole. United
States v. Sanders, 942 F.2d 894, 897 (5th Cir. 1991).
Departures from the guidelines are within the broad discretion
of the district court. United States v. Roberson, 872 F.2d 597,
601 (5th Cir.), cert. denied, 110 S. Ct. 175 (1989).
It is well established in this Circuit that we "'will not
review a district court's refusal to depart from the Guidelines,
unless the refusal was in violation of the law.'" United States v.
Mitchell, 964 F.2d 454, 462 (5th Cir. 1992) (quoting United States
v. Hatchett, 923 F.2d 369, 373 (5th Cir. 1991)); United States v.
McKnight, 953 F.2d 898, 906 (5th Cir.), cert. denied, 112 S. Ct.
2975 (1992). See also United States v. Buenrostro, 868 F.2d at 139
("It follows that we will uphold a district court's refusal to
depart from the guidelines unless the refusal was in violation of
law. . . . A claim that the district court refused to depart from
the guidelines and imposed a lawful sentence provides no ground for
relief.").
The district court did not explain its reasons for denying the
downward departure, nor did it suggest that it believed it was
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without authority to do so.4 In United States v. Soliman, 954 F.2d
1012, 1014 (5th Cir. 1992), we suggested in dicta that we would
review a district court's refusal to depart if that refusal were
based on a mistaken belief that the departure was not legally
permitted. In that case, we found that the district court refused
to depart downwards not because it believed that the guidelines or
other law precluded it from doing so, but rather because it did not
agree that the defendant suffered from an alleged reduced mental
capacity such that he would be eligible for a departure pursuant to
U.S.S.G. § 5K2.13. Similarly, the record before us supports the
conclusion that the district court did not refuse the requested
departure out of any mistaken belief that it was precluded by law
from departing downwards, but rather because it determined that
Adams's actions in confessing his involvement in the bank robberies
did not warrant such a departure. This is evidenced by the fact
that, in sentencing Adams to 200 months' imprisonment, the district
court selected a term in the top half of the applicable sentencing
range of 168 to 210 months. The court plainly had the discretion
to sentence him to 168 months' imprisonment, but it chose not to do
so.
Because we find that the district court's refusal to depart
was not in violation of law, nor made in the mistaken belief that
it was unable to depart, we will not review the denial of Adams's
4
In stating his decision not to depart, the court merely
said: "The Government has recommended an upward departure and
your lawyer has asked me to go downward. I'm going to do
neither. I'm going to stay within the guideline range . . . ."
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request for a downward departure.
Even were we to review the district court's decision, we would
affirm. The district court did not abuse its discretion because a
finding that Adams did not meet the criteria of section 5K2.16,
p.s., on the basis of which the downward departure was sought,
would not be clearly erroneous. Section 5K2.16, p.s., provides
that a departure below the applicable guideline range "may" be
warranted
"[i]f the defendant voluntarily discloses to authorities
the existence of, and accepts responsibility for, the
offense prior to the discovery of such offense, and if
such offense was unlikely to have been discovered
otherwise . . . . For example, a downward departure
under this section might be considered where a defendant,
motivated by remorse, discloses an offense that otherwise
would have remained undiscovered. This provision does
not apply where the motivating factor is the defendant's
knowledge that discovery of the offense is likely or
imminent, or where the defendant's disclosure occurs in
connection with the investigation or prosecution of the
defendant for related conduct." U.S.S.G. § 5K2.16,
policy statement (emphasis added).
Adams claims that he should have received a departure under
this section because the robberies were unlikely to have been
discovered in the absence of his confession. He emphasizes his
remorse, acceptance of responsibility, and the fact that he
requested the transfer of his cases to the federal system although
he would face stricter punishment there.5
The section 5K2.16 departure is not available where the
offense would not likely remain undiscovered or where the
5
Adams was in state custody at the time of his
confessions for pending state charges arising from the Houston
bank robberies.
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defendant's disclosure is motivated by the knowledge that discovery
of his offense is "likely or imminent." Such is the case before
us. Adams does not dispute that the Alabama connection was known
to the Houston police from the time he was stopped for the traffic
violation. Further, Alabama authorities then suspected him in the
Mobile bank robbery on the basis of identification by three
witnesses to that robbery. Finally, the similarities between the
robbery in Alabama and those in Houston heightened the probability
that officers investigating the robberies would have found the
connection. Thus it could reasonably be found that Adams had not
demonstrated that he met the criteria stated in section 5K2.16
because the discovery of his involvement in the robberies was at
least likely, if not imminent.6
The government argues that Adams was not entitled to a section
5K2.16 departure because his offenses were not unknown but only his
status as the offender, i.e., that this section applies only to
undiscovered offenses. It is unnecessary for us to reach this
issue, however.
Conclusion
Because Adams has not established that the district court's
refusal to depart downward was in violation of law, nor that the
district court refused to grant the departure out of a mistaken
6
Even were we to accept Adams's argument that his
involvement in the Texas robberies would have remained
undiscovered, and thus he was eligible for a downward departure
for two of the three counts with which he was charged, we would
not reverse Adams's sentence absent a showing of abuse of
discretion by the district court. This Adams has not shown.
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belief that departure was precluded by law, his appeal is without
merit and his conviction and sentence are
AFFIRMED.
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