United States v. Richardson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4337
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRUCE LEE RICHARDSON, a/k/a Chino,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:06-cr-00010-1)
Submitted: January 18, 2008 Decided: February 11, 2008
Before GREGORY and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
M. Victoria Jayne, Hickory, North Carolina, for Appellant. Donald
David Gast, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On September 12, 2005, Bruce Lee Richardson and Alberto
Aleman entered the Champion Credit Union, displaying handguns. The
pair ordered bank personnel to get on the ground, then jumped over
the counter and stole $16,887.23. Three months later, on
December 19, 2005, Richardson and Aleman entered the United
Community Bank, again displaying handguns. As in the earlier
robbery, Richardson and Aleman ordered customers and bank personnel
to the ground at gunpoint, then jumped over the counter, stealing
$30,344. Richardson was ultimately charged, along with two others,
in a nineteen count indictment with various bank robbery and
firearms counts. Pursuant to a plea agreement, Richardson pled
guilty to two counts of bank robbery by force, violence and
intimidation, in violation of 18 U.S.C.A. § 2113(a) (West 2000 and
Supp. 2007), and to two counts of using and carrying a firearm
during and in relation to a crime of violence, in violation of 18
U.S.C.A. § 924(c)(1)(A)(ii) (West 2000 and Supp. 2007).
Prior to Richardson’s sentencing, the probation office
prepared a presentence report. The probation officer determined
that, for both bank robbery counts, Richardson had a base offense
level of twenty. This was increased two points for each count
because the property of a financial institution was taken and two
points were added because bank personnel were restrained in order
to facilitate the offenses. One point on both counts was also
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added due to the amount of loss and an additional two points were
added under U.S. Sentencing Guidelines Manual § 3D1.4. Richardson
received a three point reduction for acceptance of responsibility,
for a total offense level of twenty-four. Richardson’s offense
level combined with a criminal history category of III resulted in
an advisory guidelines range on the bank robbery counts of 63 to 78
months’ imprisonment.
Prior to Richardson’s sentencing, the Government filed a
motion pursuant to § 5K1.1 of the guidelines, recommending that
Richardson be granted a downward departure due to his substantial
assistance in testifying against a co-defendant. The Government
recommended a ten level departure from an offense level of twenty-
four to an offense level of fourteen. The adjusted offense level
and criminal history score resulted in an advisory guidelines range
of 21 to 27 months’ imprisonment. In accordance with the
Government’s motion and recommendation at sentencing, the district
court sentenced Richardson to twenty-one months’ imprisonment on
both bank robbery counts, to be served concurrently, and to seven
years on the first § 924(c) violation and twenty-five years on the
second § 924(c) violation, to be served consecutively. Richardson
timely noted an appeal and has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967).* In his brief, Richardson
*
Richardson was informed of his right to file a pro se
supplemental brief. He has elected not to do so.
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contends that imposition of a twenty-five year sentence for his
second conviction under § 924(c) was excessive or disproportionate.
According to 18 U.S.C. § 924(c)(1)(C)(I), a defendant
convicted of a second or subsequent offense of using or carrying a
firearm during and in relation to a crime of violence “shall . . .
be sentenced to a term of imprisonment of not less than 25 years.”
18 U.S.C. § 924(c)(1)(C)(I). A district court is required to
impose a sentence of at least twenty-five years for a second
§ 924(c) conviction, unless the Government files a motion
requesting the court to impose a lesser sentence so as to reflect
a defendant’s substantial assistance. 18 U.S.C.A. § 3553(e) (West
2000 and Supp. 2007). Here, although the Government filed a motion
pursuant to USSG § 5K1.1 to reduce Richardson’s sentence due to his
substantial assistance, the Government specifically limited its
motion to Richardson’s bank robbery convictions. Accordingly, the
district court was without authority to impose a lesser sentence on
Richardson’s second § 924(c) conviction.
To the extent Richardson complains that his twenty-five
year sentence is disproportionate or unconstitutional, his
contention is without merit. After United States v. Booker, 543
U.S. 220 (2005), a sentencing court must engage in a multi-step
process at sentencing. After calculating the correct advisory
guidelines range, the sentencing court must consider the guidelines
range, any relevant factors set forth in the guidelines, and the
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factors in 18 U.S.C.A. § 3553(a) (West 2000 and Supp. 2007); then
the court may impose sentence. United States v. Hughes, 401 F.3d
540, 546 (4th Cir. 2005).
On appeal, this court will affirm a post-Booker sentence
if it “is within the statutorily prescribed range and is
reasonable.” United States v. Moreland, 437 F.3d 424, 432 (4th
Cir. 2006). A post-Booker sentence may be unreasonable for
procedural or substantive reasons. However, a sentence that falls
within a properly calculated advisory guidelines range is presumed
to be reasonable. Rita v. United States, 127 S. Ct. 2456, 2462
(2007).
At sentencing, the district court properly calculated
Richardson’s advisory guidelines range and then, pursuant to the
§ 5K1.1 motion, reduced his offense level ten points, resulting in
a range of 21 to 27 months’ imprisonment. Prior to sentencing
Richardson, the district court specifically considered the advisory
nature of the guidelines and the factors in § 3553(a). The court
then imposed a sentence at the bottom of Richardson’s advisory
guidelines range on his bank robbery convictions and a sentence in
conformity with the statutory requirements of § 924(c) on the
firearms convictions.
Additionally, Richardson’s sentence was substantively
reasonable. Richardson received a total sentence of twenty-one
months’ imprisonment to be served concurrently on two bank robbery
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convictions that the Assistant United States Attorney described as
“the most violent bank robberies that I’ve had occasion to deal
with since becoming a federal prosecutor.” As noted in the
presentence report, during each robbery, customers and bank
personnel were ordered to the ground at gunpoint. Accordingly,
Richardson’s challenge to his sentence is without merit.
Finally, Richardson argues that “the parties did not
stipulate that a firearm was used, brandished, or discharged” and
that at sentencing “no evidence was presented that Mr. Richardson
ever brandished or (sic) firearm or made threats of death or
exerted force towards another person.” At sentencing, Richardson
specifically stipulated to the information in the presentence
report as establishing a factual basis for the charges to which he
pled guilty. According to the presentence report, Richardson
brandished a firearm during each of the bank robberies.
Accordingly, the district court did not err in imposing a seven
year sentence for Richardson’s first § 924(c) conviction. See 18
U.S.C. § 924(c)(1)(A)(ii).
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the judgment of the district court. This court
requires that counsel inform Richardson, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Richardson requests that a petition be filed, but
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counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Richardson.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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