United States v. Herring

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 25, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 06-3161
v. (D.C. No. 05-CR-20066-KHV)
(Kansas)
BENNIE J. HERRING II,
Defendant-Appellant.
AMENDED ORDER AND JUDGMENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Bennie J. Herring II appeals the district court’s imposition of a 32 year
sentence, arguing the sentence is unreasonable. W e affirm.
On M ay 18, 2005, M r. Herring entered the Capitol Federal Savings Bank in
Olathe, Kansas. There were ten bank employees and one customer present. M r.
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Herring directed all eleven individuals to remove their clothing but for their
undergarments. He restrained the bank manager and five other bank employees
with zip ties. He chained five of the restrained employees together and seated
them in the bank waiting area. M r. Herring then proceeded to collect his loot,
during which time the police arrived. M r. Herring gave the sole bank customer a
tw o-w ay radio and directed the individual to take the radio outside to the police.
He obtained the keys to a mini-van belonging to one of the employees and gave
them to the assistant bank manager, Patricia Peuser. M r. Herring took the five
bound individuals and M s. Peuser outside and loaded them into the van,
instructing M s. Peuser to drive.
M r. Herring made contact with the police using the two-way radio and
requested they permit the vehicle to exit the bank parking lot. In the absence of
an immediate response from the police, M r. Herring held the handgun to M s.
Peuser’s head and threatened to start shooting hostages if the police did not escort
them aw ay from the premises. A police armored personnel carrier arrived and
pulled up to the van. M r. Herring fired two shots out of the van. M s. Peuser took
the radio from M r. Herring and pleaded for the officers to let the van leave the
bank. She then backed around the armored vehicle, drove over a curb and out of
the parking lot.
M r. Herring directed M s. Peuser to proceed to the local airport. Upon
arrival, M r. Herring instructed M s. Peuser to drive onto the tarmac and park near
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a small private plane that was awaiting take-off. He exited the van, bringing M s.
Peuser w ith him. He approached the plane and told the occupants to get out.
W hen M s. Peuser took a step back, the police shot M r. Herring several times,
bringing his criminal episode to a rapid conclusion.
M r. Herring pled guilty to armed bank robbery in which a hostage was
taken in violation of 18 U.S.C. § 2113(e) (Count I), brandishing a firearm in
connection with a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A )(ii)
(Count II), and attempted aircraft piracy in violation of 49 U.S.C. § 46502 (Count
III). As calculated in his presentence report (PSR ), M r. Herring’s guideline range
was 188-235 months. Because the attempted aircraft piracy conviction carried a
statutory mandatory minimum of twenty years, the guideline minimum became
240 months. The § 924(c) charge also carried a mandatory 7 year sentence
required to run consecutively to any other sentence imposed, which added an
additional mandatory 84 months. The government was obligated under the plea
agreement to recommend a sentence within the applicable guideline range and
thus recommended 27 years or 324 months at sentencing. Instead, the district
court sentenced M r. Herring to a total of 32 years or 384 months, imposing a
sentence of 25 years on Counts One and Three to be served concurrently and 7
years on Count Two to be served consecutively. M r. Herring contends his
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sentence is unreasonable. 1
“U nder Booker, we are required to review district court sentencing
decisions for ‘reasonableness.’” United States v. Cage, 451 F.3d 585, 591 (10th
Cir. 2006). In United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006), we
announced a two-step approach to review the procedural and substantive
components of sentences post-Booker. First, if challenged, we consider whether
the district court properly calculated the defendant’s guidelines sentence and
considered the factors set forth in 18 U.S.C. § 3553(a). See United States v.
Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006). If the district court properly
calculated the guidelines sentence, we then determine whether the sentence
imposed is reasonable in light of the factors set forth in 18 U.S.C. § 3553(a).
Kristl, 437 F.3d at 1054-55. Sentences imposed within the advisory guideline
range are presumed reasonable. Id. Even without that presumption, however, w e
are not convinced M r. Herring’s sentence is unreasonable when viewed in light of
the sentencing factors delineated in § 3353(a). See U nited States v. Ruiz-
Terrazas, 477 F.3d 1196, 1203-04 (10th Cir. 2007).
Because of the mandatory minimum sentences required here by statute, the
1
Tenth Circuit Rule 28.2(A)(1), (2) instruct appellants to attach to their brief a
copy of the transcript containing oral findings and conclusions. We admonish counsel
for failing to attach a copy of the transcript of Mr. Herring’s sentencing hearing, which
contained the district court’s sentencing decision and reasoning. Counsel’s failure was
particularly egregious given that he asserts as grounds for reversal the alleged lack of
reasoning in the district court’s decision.
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recommended guideline range became irrelevant and the mandatory minimums
became the guidelines range. U.S.S.G. § 5G1.1(b). Thus, the guidelines
sentence was properly calculated. Kristl, 437 F.3d at 1054-55. M oreover, the
court specifically considered the factors set forth in § 3553(a). See Rec., vol. II at
43-44. The court found the 27 year sentence inadequately reflected M r. Herring
discharging his weapon, creating substantial risks of death to not only the
hostages but also to law enforcement and the public, and abducting six hostages.
Id. at 39-40. See 18 U.S.C. § 3553(a)(1), (2)(A), and (3).
The court considered the abduction of hostages particularly important and
noted the guideline enhancement for hostages taken in the course of a bank
robbery only accounts for one hostage. See Rec., vol. II at 39-40; U.S.S.G. §
2B3.1(4) (affording four level increase for abduction of any one person). Adding
an additional year for each hostage, id. at 40, was a logical result given the
magnitude of M r. Herring’s actions. The guidelines themselves suggest a
departure where the offense level reflects only harm to one victim. See U.S.S.G.
§ 5K2.0, cmt. n.3(B)(ii) (noting guideline departure may be w arranted w here
guidelines only account for harm to one person). The district court
appropriately used the guidelines as its “starting point.” United States v. Terrell,
445 F.3d 1261, 1264 (10th Cir. 2006) (quoting United States v. Sitting Bear, 436
F.3d 929, 935 (8th Cir. 2006)). It then fashioned an appropriate sentence by
considering the factors set forth in § 3553(a). This was a reasoned method of
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calculating M r. Herring’s sentence. W e thus find no error in the procedural
component of M r. H erring’s sentence.
W e similarly see no problem with the substantive component of M r.
Herring’s sentence. Considering the reasonableness of a sentence requires us to
consider the weight the court accorded the various factors. Cage, 451 F.3d at
595. M r. Herring’s sentence only exceeded the mandatory minimum by five
years. Given M r. Herring’s actions during his crimes— taking six hostages,
putting his gun to at least one hostage’s head, shooting at the police, attempting to
hijack an airplane— M r. Herring’s sentence is reasonable. This case simply does
not involve the extraordinary discrepancy between the guidelines range and the
actual sentence required to determine it unreasonable. See Cage, 451 F.3d at 594-
95 (finding six day sentence unreasonable where bottom of applicable sentencing
range would have been forty-six months).
Under Booker, sentencing is discretionary and the district court used that
discretion to fashion a sentence that was reasonably tailored to M r. Herring’s
crimes. W e therefore A FFIR M .
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge.
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