United States v. Banks-Giombetti ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1869
United States of America,
Plaintiff-Appellee,
v.
Shanti Banks-Giombetti,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 99 CR 62--Rudy Lozano, Judge.
Argued January 30, 2001--Decided March 30, 2001
Before Flaum, Chief Judge, and Ripple and Rovner,
Circuit Judges.
Per Curiam. On the day of his trial for charges
stemming from a bank robbery, Shanti Banks-
Giombetti entered open guilty pleas to the entire
indictment. Because Mr. Giombetti had waited
until the last minute to change his pleas, the
district court ordered him to pay the cost of
assembling the jury venire for his trial. Mr.
Giombetti appeals, arguing through counsel that
the district court had no authority to assess
jury costs against him. Mr. Giombetti has also
submitted a pro se brief attacking his
convictions and sentences. For the reasons stated
below, we vacate the order assessing jury costs,
but affirm the judgment of the district court in
all other respects.
I
Armed with a loaded 9mm handgun, Mr. Giombetti
robbed the Lake Federal Savings and Loan
Association in Highland, Indiana on April 12,
1999. After ushering the bank’s employees into
the vault at gunpoint, he fled the scene with
$56,149 in stolen cash. The police quickly
spotted Mr. Giombetti’s Ford Explorer several
blocks away from the bank and gave chase. He
turned onto a dead-end street and abandoned his
truck, gun, and the stolen money. He then fled on
foot into a residential neighborhood, entered the
unlocked home of 62-year-old Evelyn Wojas, and
held her against her will while hiding in her
basement. In the process of preventing Mrs. Wojas
from escaping and calling the police, Mr.
Giombetti pulled her down a flight of stairs,
causing her to hit her head on the floor and
crack several teeth. After a standoff with the
police, Mr. Giombetti allowed Mrs. Wojas to
safely exit her home and later surrendered. Mrs.
Wojas required medical attention after the
incident.
The government filed a criminal complaint
charging Mr. Giombetti with armed bank robbery,
18 U.S.C. sec. 2113(a), (d); forcing a person to
accompany him in an attempt to avoid capture, 18
U.S.C. sec. 2113(e); and using a firearm during
and in relation to a crime of violence, 18 U.S.C.
sec. 924(c)(1). A federal grand jury later
returned a three-count indictment charging the
same. Mr. Giombetti pleaded not guilty. Trial was
scheduled for 8:30 a.m. on January 3, 2000. That
morning Mr. Giombetti requested that new counsel
be appointed, but after a short hearing he
withdrew his request and informed the court that
he wished to proceed. As the court prepared to
assemble the jury venire, however, Mr. Giombetti
announced that he wished to plead guilty. Another
hearing was held during which the district court
questioned Mr. Giombetti at length regarding his
decision. Mr. Giombetti stated that he fully
understood the charges against him and that he
would be pleading guilty to the entire indictment
without any promises or concessions from the
government. At the end of the colloquy, the
district court accepted Mr. Giombetti’s guilty
pleas and concluded the hearing by stating:
Because I indicated this before and because it is
the practice of this Court, because the jury was
called and the plea was not done until after the
jury was here, the Court is assessing jury costs
to the defendant.
Later, the district court issued an order
assessing $1,315.90 in jury costs against Mr.
Giombetti for "failure to proceed with case at
trial, selection of jurors and presentation of
witnesses."
Mr. Giombetti’s bank robbery conviction placed
his base offense level at 20 under U.S.S.G. sec.
2B3.1(a), and the district court increased his
base level by a total of eight because Mr.
Giombetti robbed a financial institution, took a
hostage, injured a victim, and stole more than
$50,000, see U.S.S.G. sec. 2B3.1(b)(1), (3), (4),
(7). The court adjusted his offense level upward
by four levels for obstructing justice, U.S.S.G.
sec. 3C1.1, and reckless endangerment during
flight, U.S.S.G. sec. 3C1.2. The district court
next found that Mr. Giombetti was subject to an
84-month consecutive prison sentence under 18
U.S.C. sec. 924(c) and U.S.S.G. sec. 2K2.4(a) for
brandishing a firearm during the robbery. With a
Criminal History Category of VI, these
calculations yielded a combined guideline
imprisonment range of 294 to 346 months. But the
district court also determined that if Mr.
Giombetti had not been charged and convicted
under sec. 924(c), his use of a weapon during the
robbery would have resulted in an additional
increase to his base offense level of at least
seven levels under U.S.S.G. sec. 2B3.1(b)(2),
yielding a combined guideline imprisonment range
of 360 months to life. See U.S.S.G. sec. 2K2.4,
comment. (n.2); United States v. Mrazek, 998 F.2d
453, 454-55 (7th Cir. 1993). The district court
believed that the lesser overall imprisonment
range based on his sec. 924(c) conviction did not
adequately reflect Mr. Giombetti’s extensive
criminal history and departed upward from the
guideline range, sentencing him to a total of 360
months’ imprisonment, five years’ supervised
release, and $300 in special assessments. The
district court also ordered that he pay $223.46
in restitution to Mrs. Wojas for her medical
costs.
II
On appeal, Mr. Giombetti’s appointed counsel
argues only that the district court was without
authority to sanction him with the costs of
assembling the jury venire. The government agrees
and confesses error. Nevertheless, we must still
independently evaluate the merits of Mr.
Giombetti’s claim. See United States v. Jones,
235 F.3d 342, 346 (7th Cir. 2000).
The district court’s authority to assess costs
against criminal defendants such as Mr. Giombetti
is found in 28 U.S.C. sec. 1918(b) and Rule 57(b)
of the Federal Rules of Criminal Procedure.
Section 1918(b) provides that district courts may
in their discretion assess the costs of
prosecution against unsuccessful criminal
defendants in non-capital cases. See United
States v. Standiford, 148 F.3d 864, 870 n.4 (7th
Cir. 1998); United States v. Hiland, 909 F.2d
1114, 1141 (8th Cir. 1990). The costs that may be
assessed, however, must be authorized by statute,
United States v. Gering, 716 F.2d 615, 626 (9th
Cir. 1983); United States v. Tzakis, 736 F.2d
867, 873 (2d Cir. 1984); United States v.
DeBrouse, 652 F.2d 383, 391 (4th Cir. 1981);
United States v. Pommerening, 500 F.2d 92, 101
(10th Cir. 1974), and every court to address the
issue has held that, absent some other explicit
statutory authority, 28 U.S.C. sec. 1920 lists
the costs of prosecution that a court may assess
under sec. 1918(b), see Hiland, 909 F.2d at 1142;
Gering, 716 F.2d at 626; DeBrouse, 652 F.2d at
391; cf. Roadway Express Corp. v. Piper, 447 U.S.
752, 759-60 (1980) (28 U.S.C. sec. 1927, allowing
courts to assess costs for vexatiously
multiplying proceedings, must be read in
conjunction with sec. 1920); United States v.
Claros, 17 F.3d 1041, 1044-45 (7th Cir. 1994)
(same). Under sec. 1920, a court may tax as costs
(1) fees of the clerk and marshal; (2) fees of
the court reporter for transcripts; (3) fees for
printing and witnesses; (4) fees for
exemplification and copies of documents; (5)
docket fees; and (6) compensation of court-
appointed experts and interpreters. Section 1920
does not list jury costs as a cost of
prosecution.
Rule 57(b) allows district courts to regulate
the practice of litigants and attorneys in any
manner consistent with federal law, the Federal
Rules of Criminal Procedure, and their local
rules. But absent an authorizing statute, a
Federal Rule of Criminal Procedure, or a local
rule, a district court may not impose a sanction
or other disadvantage for noncompliance with any
requirement arising from a source other than a
statute or rule without first giving the party
actual notice of the requirement. Fed. R. Crim.
P. 57(b). Both parties represent that the
Northern District of Indiana does not have an
applicable local rule and that Mr. Giombetti did
not have actual notice of the possibility of
being assessed jury costs if he changed his plea
on the eve of trial. The parties explain that the
only order that might be construed as having
given Mr. Giombetti actual notice that the
district court required him to change his plea no
later than five days before trial is an August 4,
1999 order setting the case for final pretrial
conference and scheduling a trial. That order,
however, only directed the parties to be ready to
discuss at the pretrial conference the status of
plea negotiations and any reasons that might
prevent a deal from being completed within five
days of trial. We do not believe that this order
put Mr. Giombetti on actual notice of the
possibility of having to pay jury costs. We
therefore accept the government’s confession of
error.
III
Mr. Giombetti has also submitted a pro se brief
in which he attacks his bank robbery conviction
and his sentences. He first asserts that his sec.
2113 conviction should be vacated as void because
the federal government had no authority to
prosecute an offense against a bank not located
on federal land. His challenge to the federal
territorial jurisdiction of the district court is
frivolous and requires no further discussion. See
United States v. Jones, 938 F.2d 1425, 1428 & n.6
(7th Cir. 1993); United States v. Koliboski, 732
F.2d 1328, 1329-30 (7th Cir. 1984); United States
v. Dunham, 995 F.2d 45 (5th Cir. 1993); United
States v. Collins, 920 F.2d 619, 629 (10th Cir.
1990); see also Westfall v. United States, 274
U.S. 256, 258-59 (1927) (Congress may punish
offenses against federally-regulated banks); Hugi
v. United States, 164 F.3d 378, 380-81 (7th Cir.
1999) (government’s burden to prove interstate
commerce nexus for federal crimes is waived by
valid guilty plea).
Mr. Giombetti next argues that the district
court erred in calculating his sentence. He
contends that the district court impermissibly
double counted his use of a firearm by sentencing
him to a seven-year consecutive sentence under 18
U.S.C. sec. 924(c) and U.S.S.G. sec. 2K2.4(a) and
departing upward from the guideline range to take
into account the greater sentence he would have
received had he not been convicted under sec.
924(c). We disagree. Sentencing courts may depart
upward to ensure that defendants convicted under
both sec. 924(c) and the underlying crime of
violence do not receive more lenient sentences by
virtue of the sec. 924(c) conviction than if they
had been convicted of the underlying offense
alone. United States v. Ledford, 218 F.3d 684,
689 n.1 (7th Cir. 2000); United States v.
Seawood, 172 F.3d 986, 990 (7th Cir. 1999);
United States v. Johnson-Dix, 54 F.3d 1295, 1310
(7th Cir. 1995). If Mr. Giombetti had not been
convicted under sec. 924(c), the district court
could have increased his base offense level by
five under sec. 2B3.1(b)(2)(C), yielding a total
offense level of 37 and a sentencing range of 360
months to life. U.S.S.G. sec. 2K2.4, comment.
(n.2); Mrazek, 998 F.2d at 454. The district
court’s upward departure placed him in the same
sentencing range as if he had been convicted
under sec. 2113 alone. Nothing has been counted
twice.
He next argues that the district court should
not have increased his base offense level by two
for obstructing justice under sec. 3C1.1. The
district court applied this adjustment because it
found that Mr. Giombetti perjured himself when he
testified at his change of plea hearing that he
did not actually brandish or point his handgun at
any of the bank employees during the robbery. We
review the district court’s factual findings for
clear error, giving special deference to findings
based on credibility determinations. United
States v. White, 240 F.3d 656, 660-61 (7th Cir.
2001). At sentencing, the bank manager and one of
the tellers testified that Mr. Giombetti pointed
the gun at them and held it to their backs, and
the manager stated that Mr. Giombetti held the
gun to his head. The district court credited the
testimony of the bank employees over Mr.
Giombetti’s and found by a preponderance of the
evidence that Mr. Giombetti’s testimony was both
false and material, and accordingly did not
clearly err in finding that Mr. Giombetti
committed perjury during his change of plea
hearing. See id. at 662.
In the same vein, Mr. Giombetti contends that
he should have received a two-level decrease to
his base offense level for acceptance of
responsibility under U.S.S.G. sec. 3E1.1 because
he pleaded guilty and cooperated with the
government. Last-minute guilty pleas, however,
rarely demonstrate acceptance of responsibility.
United States v. Galbraith, 200 F.3d 1006, 1016
(7th Cir. 2000); United States v. Ewing, 129 F.3d
430, 436 (7th Cir. 1997).
Finally, Mr. Giombetti argues that his guilty
pleas were involuntary. He bases this claim,
however, on trial counsel’s alleged ineffective
assistance. We decline to address this argument.
Mr. Giombetti’s contention that he would not have
pleaded guilty but for trial counsel’s allegedly
erroneous advice relates to facts outside of this
record and is therefore better suited for a
motion to vacate, set aside, or correct his
sentence under 28 U.S.C. sec. 2255. See United
States v. Hamzat, 217 F.3d 494, 501 (7th Cir.
2000); United States v. Taglia, 922 F.2d 413,
417-18 (7th Cir. 1991).
IV
The district court’s January 5, 2000 order
assessing $1,315.90 in jury costs against Shanti
Banks-Giombetti is VACATED. Mr. Giombetti’s
convictions and sentences are AFFIRMED in all other
respects.