United States v. Michael Wilbourn

Case: 11-20564 Document: 00512078044 Page: 1 Date Filed: 12/10/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2012
No. 11-20563 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MICHAEL JAMES WASHINGTON
Defendant - Appellant
No. 11-20564
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MICHAEL ANTHONY WILBOURN
Defendant - Appellant
No. 11-20567
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
Case: 11-20564 Document: 00512078044 Page: 2 Date Filed: 12/10/2012
No. 11-20563
RONALD DWAYNE THOMAS
Defendant - Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC Nos. 4:10-CR-788-1, 4:10-CR-788-2, and 4:10-CR-788-3
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This appeal arises from a bank robbery in which three co-defendants
pleaded guilty and received two sentencing enhancements, which they challenge.
The first is a two-level enhancement for bodily injury pursuant to §
2B3.1(b)(3)(A) and the second is a four-level enhancement for abduction
pursuant to § 2B3.1(b)(4)(A).
Because there is sufficient evidence in the record of a bodily injury and
because the injury is of a kind for which most victims would typically seek
medical attention, we conclude that the application of the bodily-injury
enhancement was appropriate. Furthermore, because the defendants forced the
victims to move, at gunpoint, from the customer-service area of the bank to the
vault, we conclude that the application of the abduction enhancement was also
appropriate. Therefore, we AFFIRM the judgment of the district court.
BACKGROUND
Michael James Washington, Michael Anthony Wilbourn, and Ronald
Dwayne Thomas were charged with aiding and abetting armed bank robbery in
violation of 18 U.S.C. §§ 2, 2113(a), (d) (count one) and with aiding and abetting
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
2
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the brandishing of a firearm during a crime of violence in violation of 18 U.S.C.
§§ 2, 924(c) (count two).1 Each co-defendant pleaded guilty to the indictment
without the benefit of written plea agreements.
At the joint rearraignment hearing for Wilbourn and Thomas, the
prosecutor recited as follows:2
[O]n Thursday, October 14th of 2010, at about 9:45 a.m., the First
National Bank located in the 5800 block of South Gessner, was
robbed by four young black males. . . .
The bank robbers were later identified as Mr. Randle, Mr.
Wilbourn, Mr. Washington, and Mr. Thomas.
Of the four individuals, Mr. Wilbourn, Mr. Washington and
Mr. Thomas entered the bank and there were three bank employees
that they directly addressed. Mr. Wilbourn, Mr. Washington, and
Mr. Thomas were all each armed with a pistol. Mr. Wilbourn
approached one of the bank employees, Ms. Solis, who was standing
in the lobby. He pointed a pistol at her and ordered her to get to the
ground. Mr. Wilbourn approached another bank employee, Ms.
[Sanghvi,] who was seated at her desk in the lobby, pointed a pistol
at her and instructed her to get to the ground.
Mr. Washington pointed a pistol at another employee, Ms.
[Dorsey], who was working behind the teller counter, instructed her
to open the door which leads from the lobby area to the vault room,
as well as to the area behind the teller counter.
Mr. Wilbourn, Washington, and Thomas ordered the
employees to the vault room, where they demanded money. Each of
the three threatened to shoot the employees if they did not hurry up
and show them where the money was.
Mr. Thomas had assaulted Ms. [Dorsey] by grabbing her hair.
Mr. Wilbourn assaulted Ms. [Dorsey] by grabbing her hair and
striking her face.
1
A fourth co-defendant, Kenneth R. Randle, was charged only in the bank robbery
count.
2
A separate rearraignment hearing was held for Washington at which the prosecutor
recited substantially the same facts.
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Ms. Solis, fearing for her life, informed Mr. Wilbourn,
Washington and Thomas that she had the money in her teller
drawer. Ms. Solis gave her teller drawer key to Ms. [Dorsey], and
Ms. [Dorsey] and Mr. Thomas retrieved money from Ms. Solis’[s]
teller drawer.
Mr. Washington approached Ms. Solis, again pointing a pistol
at her, and demanded to know where the rest of the money was.
Ms. [Dorsey], fearing for her life, opened the vault, at which time
Mr. Washington removed some money from the vault while Mr.
Wilbourn and Mr. Thomas maintained control of the bank
employees.
After obtaining the money [and] prior . . . to leaving the bank,
Mr. Wilbourn and Mr. Thomas and Mr. Washington all threatened
to shoot the bank employees if they moved.
Wilbourn and Thomas agreed that the factual basis in its entirety was true, and
Washington agreed that the substantially the same facts recited by the
prosecutor at his rearraignment hearing were true in their entirety.
In the presentence report (PSR), the probation officer recommended
imposing a two-level enhancement pursuant to § 2B3.1(b)(3)(A) because a victim
sustained a bodily injury. This enhancement was based on the probation
officer’s finding that, during the robbery, Wilbourn struck one of the bank
employees in the face with his fist, causing her pain.
The probation officer also recommended imposing a four-level
enhancement pursuant to § 2B3.1(b)(4)(A) because bank employees were
abducted during the offense.3 This enhancement was based on the probation
officer’s finding that, during the robbery, Washington, Wilbourn, and Thomas
ordered the bank employees to move, at gun point, from the lobby of the bank to
the vault area so that the robbers could obtain money.
3
The probation officer misidentified the relevant Guidelines subsection as §
2B3.1(b)(4)(B).
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Washington, Wilbourn, and Thomas objected to the PSR. Wilbourn and
Thomas argued that the application of the enhancement for bodily injury was
inappropriate because the injury suffered was insufficient to support the
enhancement. All three objected to the application of the abduction
enhancement, arguing that they did not abduct anyone during the offense
because ordering bank employees to the vault area was insufficient to support
the enhancement.
At sentencing, one of the bank employees, Ms. Dorsey, testified that,
during the robbery, she was punched in the face by Washington, not Wilbourn.
She did not aver that the punch caused her to be injured, that she suffered pain,
or that she sought medical attention.
The district court conducted a joint sentencing hearing for the four
defendants. The district court determined that a punch to the face was a bodily
injury under § 2B3.1(b)(3)(A) and overruled the defendants’ objections to the
application of the bodily-injury enhancement. The court also ruled that ordering
the bank employees to move to the vault constituted abduction under §
2B3.1(b)(4)(A) and denied the defendants’ objections to the application of the
abduction enhancement.
The district court sentenced Washington to a total of 234 months of
imprisonment, Wilbourn to a total of 181 months of imprisonment, and Thomas
to a total of 221 months of imprisonment. The court also imposed on each
defendant terms of supervised release and assessed a special assessment and
restitution payment on all defendants. Washington, Wilbourn, and Thomas each
filed timely notices of appeal.
STANDARD OF REVIEW
By objecting to the enhancements, Washington, Wilbourn, and Thomas
have preserved these issues for appellate review. See United States v. Neal, 578
F.3d 270, 272 (5th Cir. 2009). This court reviews the district court’s application
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or interpretation of the Guidelines de novo and its factual findings for clear
error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
“Unless the factual finding is implausible in light of the record as a whole, it is
not clearly erroneous.” United States v. Griffith, 522 F.3d 607, 611-12 (5th Cir.
2008).
DISCUSSION
A.
1.
Section 2B3.1, which pertains to robbery, provides that a defendant whose
offense involves a “bodily injury” shall receive a two-level increase to his or her
offense level. U.S.S.G. § 2B3.1(b)(3)(A). Bodily injury means “any significant
injury; e.g., an injury that is painful and obvious, or is of a type for which
medical attention ordinarily would be sought.” Id. § 1B1.1 cmt. n.1(B) (emphasis
added).
2.
Washington, Wilbourn, and Thomas argue that the district court erred in
imposing a two-level enhancement pursuant to § 2B3.1(b)(3)(A) based on Dorsey
having sustained a bodily injury during the robbery. They maintain that
although Washington punched a bank employee in the face, this did not cause
a bodily injury within the meaning of that section because (1) the government
did not produce any evidence that any injury suffered was painful or obvious; (2)
Dorsey’s injury is not the type for which a person would typically seek medical
attention because it did not involve bleeding, swelling, or pain; and (3) Dorsey
in fact declined medical treatment at the scene of the crime.
These arguments are without merit. First, the PSR states that Dorsey felt
pain, an assertion confirmed by Dorsey’s interview with the probation officer, in
which she told him “that she was punched on the nose with a closed fist, which
caused her pain in that area.” This is sufficient to show that the injury was
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painful. Regarding the obviousness of the injury, although the government
conceded that there were no “obvious open wounds, bleeding wounds, anything
like that that required immediate medical attention,” we find the lack of
bruising, swelling, or bleeding is not dispositive. The defendants attempt to rely
on United States v. Guerrero, in which, although the victim was pistol whipped
and struck in the back, the court reversed the application of the bodily-injury
enhancement, 169 F.3d 933, 945, 947 (5th Cir. 1999). However, their reliance
is misplaced because that case is factually distinguishable. First, we observed
that the district court incorrectly defined “bodily injury.” Id. at 947. Second, we
noted that there was “no evidence of any injury” in the record. Id. Although we
suggested that “an exception lies for certain types of attacks for which the
resulting injury follows automatically and is obvious,” we specifically noted that
that was not the case in Guerrero and thus had no opportunity to further
explicate that standard. Id.4 Both errors, we concluded, justified reversal. By
contrast, the district court in this case correctly defined bodily injury, and there
is sufficient evidence of Dorsey’s injury in the record to justify the application of
the bodily-injury enhancement.
Within this circuit, we have affirmed the application of the bodily-injury
enhancement in cases involving minor but identifiable injuries.5 Other circuits
have also affirmed enhancements based on identifiable injuries.6 However, we
4
Even if we were to endorse this dictum from Guerrero, it would suggest that some
injuries are so necessarily obvious that no evidence would need to be presented in order to
justify application of the bodily-injury enhancement. See id. Were that the case, it would still
provide no guidance on whether the evidence in this case is sufficient for that enhancement.
5
See United States v. Jefferson, 258 F.3d 405, 413-14 (5th Cir. 2001) (“knot” on head,
cuts, scrapes, and bruises); United States v. Green, 455 F. App’x 469, 472 (5th Cir. 2011)
(temporary hearing loss, irritation, and ringing in ears for which victim sought medical
attention).
6
See United States v. Maiden, 606 F.3d 337, 339-40 (7th Cir. 2010) (burning sensation
in eyes from mace, causing victim to be unable to wear contact lenses), cert. denied, 131 S. Ct.
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cannot conclude that the bodily-injury enhancement applies only if the injury
was both painful and obvious or identifiable. For instance, in United States v.
Fitzwater, the Sixth Circuit affirmed the application of the bodily-injury
enhancement to a co-defendant involved in an armed bank robbery in which one
of the bank tellers sustained an injury when she “hit her head and hip on her
teller’s drawer in the course of lying down on the floor during the robbery.” 896
F.2d 1009, 1012 (6th Cir. 1990). Although the precise contours of the injury the
bank teller sustained were not discussed in great detail, see id., it is not difficult
to compare that injury to the one sustained here. If a victim hitting her head
and hip on a drawer in the course of lying down is sufficiently obvious to warrant
application of the bodily-injury enhancement, we see no difficulty holding the
same as to a victim being struck in the nose by a closed fist.
Regarding the defendants’ contention that, in order for the bodily-injury
enhancement to apply, the injury must last for some meaningful period, we
believe that this proposition has little support in precedent. Admittedly, the
defendants may find some support for this proposition in United States v.
Lancaster, in which the Fourth Circuit affirmed the finding that a security guard
who was sprayed with mace did not suffer bodily injury because the effect was
momentary and produced no lasting harm. 6 F.3d 208, 210 (4th Cir. 1993).
However, stretching a denial of the enhancement for a “momentary” injury that
348 (2010); United States v. Hargrove, 201 F.3d 966, 969-70 (7th Cir. 2000) (injured neck
muscle for which muscle relaxants were prescribed); United States v. Hoelzer, 183 F.3d 880,
882-83 (8th Cir. 1999) (bruises to face, chest, and legs); United States v. Taylor, 135 F.3d 478,
482 (7th Cir. 1998) (several injuries from mace that required victims to obtain medical
treatment and miss several days of work); United States v. Perkins, 132 F.3d 1324, 1326 (10th
Cir. 1997) (“small laceration and bruising” and continued neck and shoulder pain); United
States v. Robinson, 20 F.3d 270, 278-79 (7th Cir.1994) (pain for hours and residual effects for
days from mace); United States v. Hamm, 13 F.3d 1126, 1127-28 (7th Cir. 1994) (victim
knocked down, causing bumps, bruises, and a back injury that required chiropractic
treatment); United States v. Greene, 964 F.2d 911, 912 (9th Cir. 1992) (slap in the face, causing
pain, swelling, and redness); United States v. Isaacs, 947 F.2d 112, 114-15 (4th Cir. 1991) (slap
in the face, causing red and puffy mark).
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produced no lasting harm into a requirement that the injury must last for some
meaningful period strikes us as a bridge too far. Moreover, any requirement
that the injury last for some meaningful period is not a necessary—although it
may, under certain circumstances, be a sufficient—condition for application of
the enhancement. In fact, the text of the enhancement contains no such
duration component. See U.S.S.G. § 2B3.1(b)(3)(A).
Second, application of the bodily-injury enhancement does not require that
the victim in fact seek medical treatment. See id. § 1B1 cmt. n.1(B) (defining
“bodily injury” as “any significant injury; e.g., an injury that is painful and
obvious, or is of a type for which medical attention ordinarily would be sought”)
(emphasis added); Guerrero, 169 F.3d at 946-47. Therefore, the defendants’
emphasis on the fact that Dorsey did not seek medical attention is not
dispositive. Rather, we conclude that a closed-fist punch to the nose is the kind
of injury for which most victims would normally seek medical treatment.
In this case, there is sufficient evidence that the injury Dorsey sustained
was painful; it is not difficult to describe being punched in the nose with a closed
fist as sufficiently obvious for the purpose of the bodily-injury enhancement; and
it is enough to reason that such an injury is the type for which most victims
would seek medical treatment. Accordingly, we conclude that the application of
the bodily-injury enhancement was warranted.
B.
1.
Under § 2B3.1, a defendant shall receive a four-level increase in his or her
offense level “[i]f any person was abducted to facilitate commission of the offense
or to facilitate escape.” U.S.S.G. § 2B3.1(b)(4)(A). A victim is “abducted” if he
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or she is “forced to accompany an offender to a different location.” Id. § 1B1.1
cmt. n.1(A).7
We have held that, in determining whether the abduction enhancement
is applicable, the term “different location” should be interpreted flexibly and on
a case-by-case basis. United States v. Hawkins, 87 F.3d 722, 727-28 (5th Cir.
1996). For example, in United States v. Johnson, the defendant argued that the
application of a four-level enhancement based on § 2B3.1(b)(4)(A) was not
warranted because he did not force a teller to enter or exit a structure and he did
not remove her from the bank. 619 F.3d 469, 473 (5th Cir. 2010). He also
argued that there was no threat of additional harm that abduction could present
and that we had never held that movement within a single enclosed structure
or within the same room of a single enclosed structure constituted abduction.
Id. at 473-74. Nevertheless, we determined that application of the abduction
enhancement was proper even though the teller remained in a single room; the
defendant used the teller to accompany him from her teller station to the front
of the bank, then forced her back to her teller station, and, finally, forced her to
accompany him to the rear door of the bank to facilitate his escape. Id. at 474.
Thus, application of the abduction enhancement does not depend on a finding
that a victim was forced to enter or exit a structure. See also United States v.
Osborne, 514 F.3d 377, 388-90 (4th Cir. 2008) (holding that “an abduction
enhancement may properly be applied even though the victim remained within
the confines of a single building”).
2.
Washington and Thomas argue that the district court erred in imposing
a four-level enhancement pursuant to § 2B3.1(b)(4)(A) because the offense
7
The comments to § 1B1.1 provide as an example “a bank robber’s forcing a bank teller
from the bank into a getaway car.” Id.
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conduct did not constitute abduction even under the flexible standard adopted
by this court.8
Washington and Thomas make a number of arguments in opposition to the
application of the abduction enhancement—that no victim was removed from the
building or taken across some threshold, that no victim was forced to depart with
the defendants in their getaway vehicle, that no hostages were taken to facilitate
escape, and that the victims were moved together from the bank-teller area to
the vault area—but we find none of them persuasive. First, movement within
a building may constitute movement “to a different location” within the meaning
of the abduction enhancement. See Johnson, 619 F.3d at 474. In other words,
that the bank employees remained within the bank is not dispositive. Second,
the abduction enhancement applies where a victim is abducted “to facilitate the
commission of the offense or to facilitate escape.” U.S.S.G. § 2B3.1(b)(4)(A)
(emphasis added). Thus, that the defendants did not force the victims to
accompany them in their getaway vehicle or take them hostage in order to
facilitate escape is immaterial. The defendants forced Dorsey, Sanghvi, and
Solis to move, at gunpoint, from the lobby and teller area of the bank to the vault
where Solis entered the vault’s access code, thus enabling the robbers to commit
the crime. Washington and Thomas do not dispute this. The forced movement
of a bank employee from one room of a bank to another—so long as it is in aid
of commission of the offense or to facilitate escape—is sufficient to support the
enhancement given the flexible approach we have adopted in this circuit. See
Johnson, 619 F.3d at 474. Finally, nothing in the abduction enhancement
8
The two also contend that application of the enhancement was improper because the
probation officer incorrectly cited § 2B3.1(b)(4)(B)—instead of § 2B3.1(b)(4)(A)—in the PSR.
In the Addendum to the PSR, however, the probation officer correctly cited § 2B3.1(b)(4)(A).
Moreover, this typographical error in the PSR is insufficient for reversal. See United States
v. Huerta, 182 F.3d 361, 363-65 & n.1 (5th Cir. 1999) (upholding guidelines enhancement
despite typographical error in citation to guidelines section in the PSR that was corrected in
addendum).
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requires that the victims be separated in order for the enhancement to be
applied. See U.S.S.G. § 2B3.1(b)(4)(A). Accordingly, we conclude that the
application of the abduction enhancement was warranted.
CONCLUSION
For the foregoing reasons, we AFFIRM the application of both the bodily-
injury and abduction enhancements.
12