United States v. Barnes, Braunwin ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2006
Decided March 29, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-2406
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Central
District of Illinois
v.
No. 04-CR-10027-001
BRAUNWIN BARNES, also known
as BRAUNWIN NEWBORN, Joe Billy McDade,
Defendant-Appellant. Judge.
ORDER
Braunwin Barnes was convicted of armed bank robbery, see 18 U.S.C. § 2113(a), (d), after a bench trial. The district court sentenced her within the guidelines
range to a term of 87 months’ imprisonment and four years’ supervised release. In
addition, she was ordered to pay $8,565 in restitution, less any funds recovered by
the bank. Barnes filed a notice of appeal, but her appointed counsel has moved to
withdraw because he is unable to find a nonfrivolous basis for appeal. Anders v.
California, 386 U.S. 738 (1967). Barnes did not respond to our invitation under
Circuit Rule 51(b) to explain why she believes her appeal has merit, so we review
only the potential issues identified in counsel’s facially adequate brief. United
States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
No. 05-2406 Page 2
Counsel first considers whether Barnes might argue that the district court
erred in denying her motion for judgment of acquittal under Federal Rule of
Criminal Procedure 29(a). Granting such a motion is appropriate only if there is
insufficient evidence to sustain the conviction. United States v. Hausmann, 345
F.3d 952, 955 (7th Cir. 2003). We agree with counsel that an appeal on this ground
would be frivolous. Barnes argued at trial that no direct evidence, or eyewitness
testimony, linked her to the robbery, but there was abundant circumstantial
evidence to support the district court’s finding that she aided and abetted the crime
by driving the getaway car. See United States v. Smith, 415 F.3d 682, 689 (7th Cir.
2005) (noting that driver of getaway car may be treated as principal in robbery). A
witness testified that the robber sped away in the passenger seat of Barnes’s car,
and that the driver was someone roughly matching her description. According to an
investigator, Barnes claimed to be the only one who had driven her car on the day of
the robbery. Moreover, a search of her home turned up a black bag similar to that
carried by the robber and currency wrappers of the sort used by the bank. One of
the wrappers bore Barnes’s fingerprint. And the bag contained more than $3,000 in
cash—which included bills identified by the bank as “bait money.”
Counsel then considers arguing that the district court erred in the calculation
of her sentence. Although now advisory, the guidelines still must be properly
calculated. United States v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006); United
States v. Carter, 410 F.3d 942, 954 (7th Cir. 2005). We review the district court’s
findings of fact for clear error. Robinson, 435 F.3d at 701; United States v. Blaylock,
413 F.3d 616, 618 (7th Cir. 2005). Counsel questions whether the court
appropriately applied a five-level upward adjustment for use of a gun during the
robbery. See U.S.S.G. § 2B3.1(b)(2)(c). Because there was uncontroverted
testimony from two tellers that the robber brandished a gun, we agree with counsel
that the district court did not clearly err. We do not know that Barnes herself ever
touched the gun, but she was properly held accountable for its use because the
brandishment was conduct relevant to the robbery within the meaning of U.S.S.G.
§ 1B1.3(a)(1)(A), which defines relevant conduct as “all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or willfully
caused by the defendant.” See United States v. Wallace, 212 F.3d 1000, 1005 (7th
Cir. 2000) (holding that use of gun was attributable to defendant who aided and
abetted armed robbery but never personally carried gun).
Counsel next considers whether Barnes might argue that the district court
erred in denying her a downward adjustment for acceptance of responsibility. This
argument is frivolous because a defendant who requires the government to prove
her factual guilt at trial is ordinarily ineligible to receive the reduction. See
U.S.S.G. § 3E1.1 cmt., n.2; United States v. Williams, 202 F.3d 959, 962 (7th Cir.
2000). The purpose of the reduction is to reward defendants who plead guilty, and
thus save the government the time and expense of trial, or who are genuinely
contrite, because this implies a lesser risk of recidivism. United States v. Woodard,
No. 05-2406 Page 3
408 F.3d 396, 397 (7th Cir. 2005). Barnes neither pleaded guilty nor displayed
contrition.
Finally, counsel considers whether Barnes might argue that her sentence was
unreasonable in the context of the factors listed in 18 U.S.C. § 3553(a). See United
States v. Booker, 543 U.S. 220, 261-62 (2005); United States v. Jordan, 435 F.3d 693,
696 (7th Cir. 2006); United States v. Vaughn, 433 F.3d 917, 924 (7th Cir. 2006). We
agree with counsel that appeal on this ground would be frivolous. Because Barnes’s
sentence is within the recommended guidelines range, it is presumptively
reasonable, see United States v. Williams, 436 F.3d 767, 768 (7th Cir. 2006); United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). The district court did not
support its determination with detailed findings, but it need not do so. It is enough
if we can tell from the record that the relevant factors were considered. United
States v. Brock, 433 F.3d 931, 933-34 (7th Cir. 2006); United States v. Williams, 425
F.3d 478, 480 (7th Cir. 2005). It is clear from the sentencing transcript that the
district court considered Barnes’s history and characteristics. See 18 U.S.C.
3553(a)(1). The court heard testimony from her mother that she was “under the
influence” of the robber (her boyfriend), and from a minister who said that she was
one of his best friends and described a number of public service projects she had
been involved in. The court concluded that the sentence it imposed was necessary
in light of the need for consistent sentencing of defendants with similar records who
have been found guilty of similar conduct. See 18 U.S.C. 3553(a)(6).
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.