United States v. Bourne

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 95-6548 and 95-6602
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D.C. Docket Nos. CR 94-91 and CR 95-102
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUY BROCKWELL BOURNE,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Alabama
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December 15, 1997)
Before BIRCH, Circuit Judge, FAY, Senior Circuit Judge, and COHILL*, Senior District Judge.
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*Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of Pennsylvania,
sitting by designation.
PER CURIAM
Appellant Guy Brockwell Bourne pled guilty to three counts of bank robbery . He appeals the
computation of his sentence and the amount of restitution he was ordered to pay one of the banks. We
have jurisdiction over the appeal of a sentence under 28 U.S.C. § 1291. Because we find that the
district court erroneously employed double counting in calculating Bourne’s base offense level, we will
vacate the judgment of sentence and remand for resentencing.
I. BACKGROUND
The consolidated sentencing was for three robberies committed by Bourne in the Spring of
1994. The first bank robbery occurred in Mobile, Alabama on April 11, 1994 at the First Alabama
Bank where Bourne allegedly stole $11,527.00. From his next robbery at Horizon Bank in Pensacola,
Florida on May 5, 1994 Bourne garnered $1,600.00. The trilogy of bank robberies was completed on
May 19, 1994 at the Compass Bank, also in Mobile, Alabama, where Bourne stole $604.00. His
modus operandi was similar in each robbery. Bourne would ask a bank teller for coin wrappers. As
the teller was getting the wrappers Bourne would produce a demand note. In the Pensacola bank
robbery Bourne also displayed a revolver to the teller.
Bourne first pled guilty to the two-count indictment for the two bank robberies which were
committed in Mobile, Alabama. Pursuant to a plea agreement with the government under Rule 20 of
the Federal Rules of Criminal Procedure, the Pensacola case was later transferred to the U.S. District
Court for the Southern District of Alabama for the guilty plea and sentencing. As Bourne was already
in prison in Alabama for yet another bank robbery, this consolidated sentencing allowed Bourne to
avoid being sentenced as a career offender.
At the sentence hearing on June 24, 1995 the district court engaged in a dialogue with counsel
for both sides concerning application of the presentence report’s adjustments based on the use of a
firearm in the Pensacola bank robbery. The base offense level included a three-level increase for the
use of a firearm. After hearing argument, the court determined that the sentencing range would be
between 70 to 87 months.
The guideline calculation had a combined adjusted offense level for the three robberies. The
presentence report provided for only a two-level adjustment for acceptance of responsibility. Bourne
argued that he should be given a three-level downward adjustment for acceptance of responsibility for
the Pensacola offense, rather than two levels, and that this three-level adjustment should apply to the
entire consolidated sentencing. The district court found that Bourne was not entitled to the additional
one-level reduction because a local rule of the Southern District of Alabama requires a defendant to file
notice of intent to plead guilty no later than the pretrial conference. Bourne argued that his notice of
intent was timely only as to the Pensacola charge.
Bourne also disputed the validity of the district court’s finding that he used a death threat in his
written note in the Pensacola robbery. From the record, it appears that this note was never actually put
into evidence. Rather, an FBI agent stated that the bank teller had told him that she had received a
written note from Bourne stating “This is a hold up, I will kill you.” The agent had never seen the
note. Bourne testified that he had used the same note in the Pensacola robbery as he had in the
previous robbery of First Alabama Bank. This note was entered into evidence and did not have an
explicit threat of death. The district court determined that the FBI agent’s testimony was more
credible than the direct testimony of Bourne. The finding of a death threat increased his guideline
computation by two levels with a commensurate increase in the range to 87 to 108 months.
Bourne objected to the amount of restitution ordered for the First Alabama Bank robbery
stating “that is not how much money I received, it was eighty-eight hundred dollars.” [R.2-1-70]. The
government’s special agent testified that bank auditors from First Alabama had determined that the
amount of loss from the robbery was $11,527. On cross examination the agent admitted that he had
not brought the audit with him, that he had not verified the information in the audit, and that he could
not state with certainty how the audit was performed. Bourne took the stand . He admitted that he had
been using marijuana during the robbery, but claimed that his marijuana use had not affected his
memory because “he ran a corporation with five hundred employee while I was using marijuana.”
[R.2-1-70]. The district court accepted the agent’s testimony.
Bourne was sentenced to 108 months on each count to run concurrently with the other robbery
sentences, a supervised release term of five years, a $50 special assessment and restitution.
II. STANDARD OF REVIEW
Our standard of review of a district court's application of the Sentencing Guidelines is de novo.
United States v. Diaz, 26 F.3d 1533, 1544 (11th Cir. 1994), cert. denied, 513 U.S. 1134, 115 S.Ct. 952,
130 L.Ed.2d 895 (1995). We review the district court’s factual findings as to the amount of restitution
under the clearly erroneous standard. United States v. Asseff, 917 F.2d 502, 505 (11th Cir. 1990).
III. DISCUSSION
a. Acceptance of responsibility
Under section 3E1.1 of the Sentencing Guidelines a defendant is allowed a two-level decrease
if he or she accepts responsibility for the offense. U.S.S.G. § 3E1.1(a). Another one-level reduction is
permitted if, inter alia, his entry of a guilty plea is timely. U.S.S.G. § 3E1.1(b)(2). The district court
allowed a two-level reduction for Bourne’s acceptance of responsibility , but found that since his guilty
plea in the Mobile bank robberies was not timely, a further reduction was not warranted. Bourne
contends that his timely plea in the Pensacola bank robbery should merit an additional one-level
adjustment.
Under the Sentencing Guidelines, when there are multiple counts of conviction, adjustment
for acceptance of responsibility is applied after all the offenses have been aggregated pursuant to
section 1B1.1. To be entitled to an adjustment a defendant must accept responsibility for each crime
to which he is being sentenced. United States v. Ginn, 87 F.3d 367, 370 (9th Cir. 1996); United States
v. Kleinebreil, 966 F.2d 945, 951-53 (5th Cir. 1992); United States v, McDowell, 888 F.2d 285, 293
(3d Cir. 1989). The rationale is quite simple: a defendant would receive "a benefit on his offense for
both robberies even though he accepted responsibility for only one robbery." Ginn, 87 F.3d at 371.
Bourne does not dispute that his plea in the Mobile cases was untimely. The district court was correct
in not applying another one-level reduction for acceptance of responsibility for timeliness.
b. Double counting
Under U.S.S.G. § 2B3.1, the base offense level for robbery is 20. Under the “Special Offense
Characteristics”, there is a two-level enhancement for involvement of a financial institution and a
graduated enhancement beginning with an express threat of death and ending with discharging a
firearm. In calculating the base offense level for the Pensacola bank robbery the district court applied a
three-level increase for brandishing a dangerous weapon and then added a two-level increase for a
threat of death in Bourne's note to the bank teller. Bourne argues that this enhancement amounts to
double-counting in violation of the Guidelines provisions.
This court recently addressed double counting under section 2B3.1(b)(2) and found that the
"use[] of a firearm or dangerous weapon, should not include an independent increase, whether by
departure or otherwise, for an express threat of death." United States v. LNU, 16 F.3d 1168, 1171 (11th
Cir. 1994), modified, United States v. Omar, 24 F.3d 1168 (11th Cir. 1994). The Government
concedes that LNU controls and has waived its argument that Bourne failed to preserve this issue on
appeal. Since a threat of death is implicit when a dangerous weapon is displayed, the district court
erred when it added two levels for an express threat of death. We note that Bourne's concern that the
district court improperly admitted evidence concerning the express death threat contained in the note is
moot.
c. Restitution
The burden of proof for establishing restitution is upon the government by a preponderance of
the evidence. 18 U.S.C. § 3664(d). The court, in determining the appropriate amount of restitution,
may consider hearsay evidence that bears “minimal indicia of reliability” so long as the defendant is
given an opportunity to refute that evidence. United States v. Hairston, 888 F.2d 1349, 1353 (11th
Cir.1989). To show that the evidence lacks “minimal indicia of reliability” a defendant must establish
“(1) that the challenged evidence is materially false, and (2) that it actually served as a basis for the
sentence.” Id. (Quoting United States v. Reme, 738 F.2d 1156, 1167 (11th Cir. 1984)).
We cannot find that the district court was clearly erroneous in accepting the testimony of the
special agent as to the amount of loss from First Alabama Bank. Bourne has not shown that the
hearsay upon which the district court relied is materially false or unreliable. The special agent based
his testimony on his recollection of the bank auditor’s report prepared on the day of the robbery. It is
the type of evidence routinely relied upon by the FBI in determining amounts stolen from banks.
However, since this matter is to be remanded for sentencing, we suggest that the district court revisit
the amount of restitution. It should be a simple matter for the special agent to obtain the auditor’s
report or for the bank auditor to testify . This should then serve to determine the exact amount of
restitution to be ordered.
IV. CONCLUSION
The judgment of sentencing is REVERSED and the case is REMANDED for proceedings
consistent with this opinion.