United States v. Collin McDonald ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2601
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
*
Collin McDonald, *
*
Appellant. *
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Submitted: March 12, 2008
Filed: April 9, 2008
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Before RILEY, GRUENDER, and SHEPHERD, Circuit Judges.
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RILEY, Circuit Judge.
Collin McDonald (McDonald) pled guilty to one count of bank robbery, in
violation of 18 U.S.C. § 2113(a). The district court1 sentenced McDonald to 175
months imprisonment, to be served consecutively to sentences previously imposed in
Missouri state and federal court. McDonald challenges his sentence, arguing the
district court erred by imposing: (1) a two-level increase for being a leader, organizer,
manager, or supervisor of criminal activity under United States Sentencing Guidelines
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
(U.S.S.G.) § 3B1.1; (2) a two-level increase for attempting to obstruct justice under
U.S.S.G. § 3C1.1; and (3) a two-level increase for reckless endangerment during flight
under U.S.S.G. § 3C1.2. McDonald also appeals the part of the sentence which orders
the instant sentence to run consecutively to McDonald’s other undischarged terms of
imprisonment. We affirm.
I. BACKGROUND
On November 25 and December 2, 2003, McDonald robbed two banks in the
Kansas City, Missouri, area. McDonald and his girlfriend, Tiffany Callahan
(Callahan), left Kansas City on December 5, 2003 to get away from the police.
That same day, as they drove through Cedar Rapids, Iowa, McDonald took the
Collins Road Exit off Interstate 380 and decided to rob the Farmers State Savings
Bank on Collins Road in Marion, Iowa.2 McDonald asked Callahan to go into the
bank to determine whether there were any police inside. Callahan walked around the
lobby, and then returned to the car and reported to McDonald that she did not see a
security guard in the bank. McDonald and Callahan drove away from the area to plan
an escape route. While driving around, Callahan unsuccessfully tried to talk
McDonald out of robbing the bank.
McDonald asked Callahan to hold the door of the bank open in case the bank
had an alarm which would cause the door to lock. When they entered the bank,
Callahan held the door while McDonald approached the tellers and demanded money.
McDonald hid a knife up his right shirt sleeve during the robbery. McDonald and
Callahan were in the bank less than one minute, making off with $8,315 in cash.
2
McDonald chose the Collins Road Exit and this bank in Collins Square
because his first name is Collin.
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The following day, McDonald decided they should buy a different car because
the one they were driving had been used to commit multiple bank robberies.
McDonald and Callahan bought a car in South Sioux City, Nebraska, abandoning the
car used in the robberies in the parking lot of their hotel. McDonald controlled the
expenditures of the stolen money, and paid $1,950 from the proceeds of the robberies
to purchase the car.
On December 10, McDonald and Callahan checked into a hotel in Lincoln,
Nebraska, under an alias. Law enforcement had been tracking McDonald’s and
Callahan’s movements. On the afternoon of December 10, officers made contact with
McDonald and Callahan outside their hotel room. The couple retreated and barricaded
themselves in their room, and a standoff ensued. McDonald initially claimed to have
a gun. Officers cleared adjacent rooms of any guests. The Lincoln SWAT team was
called in to assist at the scene. During the standoff, McDonald threw two chairs
through a closed window in their second floor room. Officers below were close to
where the chairs and broken glass landed. When McDonald and Callahan looked out
their window, presumably to escape, officers yelled for McDonald and Callahan to get
their hands up. McDonald and Callahan again retreated into their hotel room.
Officers negotiated with McDonald and Callahan by talking on the phone and through
the door. Near the end of negotiations, McDonald admitted he lied about having a
gun. After a standoff of approximately two and one-half hours, officers forcibly
entered the room and took McDonald and Callahan into custody.
Callahan met with authorities on February 10, 2004, to give a proffer
concerning her involvement in the bank robbery. At some point after Callahan met
with authorities, McDonald wrote Callahan a letter which read in part:
I hope and pray to God you did not say anything about a weapon when
you were in Iowa. Because it will make it worse on me and you even if
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they promised you not to prosecute you that’s not always true I would
hate to see you go to jail it’s a horrible place especially since you are
very sensitive you would have God with you No matter what don’t ever
forget that you will also have my soul to share with you everywhere you
go
At McDonald’s sentencing hearing, Callahan also testified that, when she visited
McDonald in jail after his arrest, he held up a note that said, “Don’t tell them about
the knife.”
McDonald ultimately pled guilty to one count of bank robbery, in violation of
18 U.S.C. § 2113(a). At the time of sentencing, McDonald was serving a 54-month
sentence imposed in the Western District of Missouri for the Kansas City bank
robberies. McDonald was previously ordered to serve a one year consecutive sentence
for forgery in Bates County, Missouri. McDonald was then scheduled to begin
another thirteen year sentence for a March 6, 2004, attempt to escape from jail in
Bates County, Missouri, followed by an additional seven year term for armed criminal
action and second degree assault arising from his escape attempt. Thus, at the time
of sentencing, McDonald had already been sentenced to serve 54 months for the
Kansas City bank robberies, followed by 252 months for his Missouri state court
convictions. After applying increases for McDonald’s aggravating role in the instant
offense, obstruction of justice, and reckless endangerment during flight, the district
court sentenced McDonald to 175 months imprisonment, to be served consecutively
to McDonald’s other undischarged terms of imprisonment.
II. DISCUSSION
A. McDonald’s Role in the Offense
McDonald claims the district court erred in assessing a two-level increase for
his role in the offense, arguing Callahan was an equal partner and willing participant
in the robbery. “We review for clear error the district court’s factual findings
underlying the imposition of a sentencing enhancement based on the defendant’s role
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in the offense.” United States v. Rosas, 486 F.3d 374, 376 (8th Cir. 2007) (citation
omitted). Under U.S.S.G. § 3B1.1(c), “[i]f the defendant was an organizer, leader,
manager, or supervisor in any criminal activity [not involving five or more
participants], increase by 2 levels.” The terms “organizer,” “leader,” “manager,” and
“supervisor” are to be construed broadly. Rosas, 486 F.3d at 376; United States v.
Willis, 433 F.3d 634, 636 (8th Cir. 2006). In determining whether a defendant had
a managerial or supervisory role in an offense, application note 4 to U.S.S.G. § 3B1.1
directs the district court to consider such factors as:
the exercise of decision making authority, the nature of participation in
the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and scope
of the illegal activity, and the degree of control and authority exercised
over others.
U.S.S.G. § 3B1.1, cmt. n.4
At the sentencing hearing, Callahan testified McDonald made the decision to
rob a bank, chose the Farmers State Savings Bank on Collins Road, asked Callahan
to enter the bank and see if any police were in the bank, and instructed her to hold the
door open for him so the door would not lock. McDonald was the one who carried a
knife and demanded money while Callahan held the door. Callahan also testified it
was McDonald who decided they should buy a different car because the one they were
driving had been used to commit multiple bank robberies. Callahan further testified
McDonald paid the purchase price for the new car from the proceeds of the robberies,
as McDonald held the cash and controlled the expenditures. This evidence was more
than sufficient to support a two-level enhancement for McDonald’s aggravating role
in the offense.
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B. Obstruction of Justice
McDonald argues the district court erred in applying a two-level enhancement
for obstruction of justice because Callahan’s testimony was not credible. “We review
a district court’s factual findings underlying an obstruction of justice enhancement for
clear error[.]” United States v. Peters, 394 F.3d 1103, 1105 (8th Cir. 2005) (citation
omitted). “When the factual findings by the trial court are based on the credibility of
witnesses, they are virtually unreviewable.” United States v. Moore, 242 F.3d 1080,
1081 (8th Cir. 2001) (internal quotation marks and citation omitted).
U.S.S.G. § 3C1.1 provides:
If (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the defendant’s
offense of conviction and any relevant conduct; or (ii) a closely related
offense, increase the offense level by 2 levels.
In McDonald’s case, the district court based the obstruction of justice
enhancement on: (1) Callahan’s testimony that, when she visited McDonald while he
was incarcerated, he showed her a note urging her not to say anything about the knife;
and (2) the letter McDonald wrote to Callahan which stated in part, “I hope and pray
to God you did not say anything about a weapon when you were in Iowa. Because it
will make it worse on me and you even if they promised not to prosecute you[.]” The
district court did not err by finding Callahan’s testimony “totally believable,” nor did
it err by imposing a two-level increase for obstruction of justice based on McDonald’s
attempts to prevent Callahan from revealing McDonald carried a concealed knife
during the bank robbery.
C. Reckless Endangerment During Flight
McDonald contends the district court erred by imposing a two-level
enhancement for reckless endangerment during flight because insufficient evidence
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existed to support the enhancement. “We review for clear error a district court’s
findings with respect to reckless endangerment during flight.” United States v.
Bazaldua, 506 F.3d 671, 674 (8th Cir. 2007). Under U.S.S.G. § 3C1.2, “[i]f the
defendant recklessly created a substantial risk of death or serious bodily injury to
another person in the course of fleeing from a law enforcement officer, increase by 2
levels.” The term “during flight” should be “construed broadly” and includes conduct
“in the course of resisting arrest.” U.S.S.G. § 3C1.2, cmt. n.3.
McDonald acknowledges he is responsible for “his own conduct and for
conduct that he aided or abetted, counseled, commanded, induced, procured, or
willfully caused.” (quoting U.S.S.G. § 3C1.2, cmt. n.5). However, McDonald
contends the reckless endangerment enhancement does not apply because McDonald
did not aid, abet, counsel, command, induce, procure, or cause the SWAT team to be
dispatched or the police forcibly to enter his hotel room to end the standoff.
McDonald also claims he should not be subject to the two-level increase because he
never threatened anyone and there was no evidence throwing chairs through the closed
second story window was intended to harm anyone or created a substantial risk to
anyone.
These arguments are unpersuasive. First, it is not the actions of law
enforcement, in dispatching the SWAT team or breaking down the door of
McDonald’s hotel room, that “recklessly created a substantial risk of death or serious
bodily injury to another person.” Instead, it is McDonald’s conduct (barricading
himself in a hotel room for over two hours, claiming to be armed with a gun, and
hurling furniture through a closed second story window) that constituted reckless
endangerment. Even though McDonald lied about having a gun, officers were
nevertheless at heightened risk of physical injury as a result of having to enter
McDonald’s hotel room with force to arrest him. Officers cleared adjacent rooms of
any guests due to the perceived threat. Anyone stationed on the ground in the vicinity
of McDonald’s hotel room window could have been hit by the falling chairs or broken
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glass. Ample evidence existed to support the district court’s finding the risks
McDonald created in his attempt to avoid arrest warranted a two-level increase for
reckless endangerment during flight.
D. Consecutive Sentences
McDonald argues the district court abused its discretion and imposed an
unreasonable sentence by ordering his sentence to run consecutively to McDonald’s
other undischarged terms of imprisonment. “We review a district court’s decision to
impose a consecutive or concurrent sentence for reasonableness.” United States v.
Winston, 456 F.3d 861, 867 (8th Cir. 2006). To allow for meaningful appellate
review, “[t]he district court must explain its reasoning for imposing a concurrent or
consecutive sentence[.]” Id.The district court considers the factors set forth in 18 U.S.C. § 3553(a) to
determine whether to impose a consecutive or concurrent sentence. See United States
v. Shafer, 438 F.3d 1225, 1227 (8th Cir. 2006) (quoting 18 U.S.C. § 3584(b)). “When
the defendant is subject to an undischarged term of imprisonment for an unrelated
crime, ‘the sentence for the instant offense may be imposed to run concurrently,
partially concurrently, or consecutively to the prior undischarged term of
imprisonment to achieve a reasonable punishment.’” Id. (quoting U.S.S.G. § 5G1.3(c)
(policy statement)). The district court has “wide discretion” under U.S.S.G. §
5G1.3(c) to order a sentence to be served consecutively to an undischarged sentence.
See United States v. Mathis, 451 F.3d 939, 941 (8th Cir. 2006).
In McDonald’s case, the district court noted, “[f]or all the reasons stated by [the
government], it’s clear to me that a consecutive sentence is appropriate in this case
under the advisory [G]uidelines.” The district court also stated it had “considered all
the other statutory factors, even though I may not have discussed them specifically.
I have considered them very carefully in deciding what the appropriate sentence is.”
The sentencing transcript makes clear that the district court gave substantial
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consideration to all the appropriate factors. The district court was well within its
broad discretion in ordering McDonald’s sentence to be served consecutively to his
other undischarged terms of imprisonment.
III. CONCLUSION
Having carefully reviewed the sentencing record and the parties’ arguments, we
conclude ample evidence supported the district court’s imposition of: (1) a two-level
increase for McDonald’s aggravating role in the offense; (2) a two-level increase for
McDonald’s attempts to obstruct justice; and (3) a two-level increase for reckless
endangerment during flight. We further conclude the district court did not abuse its
discretion by ordering McDonald’s sentence to run consecutively to his other
undischarged terms of imprisonment. The reasonable sentence imposed by the district
court is affirmed.
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