United States v. Corey Duffey

Case: 10-10103 Document: 00511712032 Page: 1 Date Filed: 01/03/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 3, 2012
No. 10-10103 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
COREY DEYON DUFFEY, also known as Keyno, also known as Calvin
Brown; ANTONYO REECE, also known as Seven; CHARLES RUNNELS,
also known as Junior; JARVIS DUPREE ROSS, also known as Dookie, also
known as Dapree Dollars, also known as Fifty; TONY R. HEWITT,
Defendants - Appellants
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:08-CR-167-1
Before JOLLY, DEMOSS, and PRADO, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
Corey Duffey, Tony Hewitt, Antonyo Reece, Jarvis Ross, and Charles
Runnels devoted their respective talents to the enterprise of robbing banks.
They were convicted of multiple counts of armed robbery, attempted robbery,
and conspiracy and received prison sentences ranging, respectively, from a
minimum of 140 years, to a twenty-nine life sentence imposed on one defendant.
*
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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-10103 Document: 00511712032 Page: 2 Date Filed: 01/03/2012
No. 10-10103
Although their criminal enterprise enjoyed some success, the enterprise of
appealing their convictions is likely of marginal value to them, given the
extensive sentences they will have to serve. First, the Appellants argue that
there was only one, overarching conspiracy to rob banks and that their multiple
conspiracy convictions are duplicative, violating the Double Jeopardy Clause.
Second, they argue that their convictions on two counts of attempted bank
robbery are not supported by the evidence, because there was no showing of
“actual force and violence, or intimidation,” which is required to support a
conviction under the first paragraph of 18 U.S.C. § 2113(a) and (d). Because the
government did not establish the underlying offense of attempted bank robbery
on these two counts, they further argue that the two § 924(c)(1) counts for use
of a firearm during the alleged attempted robberies are invalid. Finally, Hewitt,
individually, raises a sentencing issue contending that the presentence report
exaggerates his total offense level, which we reject. For the reasons that follow,
we AFFIRM the convictions except for the two attempted robbery and the two
concomitant § 924(c)(1) convictions under Counts Three, Four, Eighteen, and
Nineteen, which we REVERSE and VACATE. Given that we vacate these
convictions with respect to all Appellants, we VACATE all sentences and
REMAND to the district court to re-sentence all defendants in the light of this
opinion.
I.
A.
From January to June of 2008, Corey Duffey, Tony Hewitt, Antonyo Reece,
Jarvis Ross, and Charles Runnels (collectively, “Appellants”), as well as two co-
conspirators — Darobie Stenline and Yolanda McDow — constituted a loose
confederacy of bandits who, with varying degrees of success, robbed five banks
in the Dallas-Fort Worth area. Four other individuals — referred to as Nitty,
2
Case: 10-10103 Document: 00511712032 Page: 3 Date Filed: 01/03/2012
No. 10-10103
T.S., Kenny, and J.T. — participated in one or more of the robberies, but were
not indicted for their alleged crimes.
Both Duffey and Hewitt assumed leadership roles of their co-defendants.
They would case banks, invite potential partners to join in the crimes, delegate
roles and responsibilities to their co-conspirators, and participate in the
robberies.
The confederacy made its debut on January 28, 2008 at the Citi Bank in
Garland, Texas. Duffey, Hewitt, Ross, Runnels, Stenline, Nitty, and T.S. were
the actors in this robbery. Hewitt organized the robbery and gave instructions
to the “takeover team” via walkie talkie. The robbers stole a white Oldsmobile
(or Buick) sedan for transportation. This enterprise yielded about $5,000. The
robbers netted a disappointingly paltry sum, because the bank was too large for
the robbers and raiders to control effectively, even with their assortment of guns.
Consequently, they planned for a new, smaller undertaking a few days later.
The group launched their second strike on February 1, 2008 at the
Comercia Bank in Desoto, Texas. Duffey, Hewitt, Runnels, Stenline, McDow,
Nitty, Kenny, and T.S. worked this job and made travel arrangements by
stealing a Ford Explorer. This venture netted a handsome $245,000. Stenline,
T.S., and Hewitt acted as lookouts, while the other participants, bearing an
array of guns, acted as the “takeover team.”
At 1:15 p.m. on March 28, 2008, Duffey, Hewitt, Ross, Runnels, Stenline,
McDow, Nitty, and J.T. ganged up on the Century Bank in Dallas, Texas,
choosing for transportation a stolen white Chevy Suburban on this occasion.
Before this operation, Hewitt sent McDow a text message asking whether she
“wanted to make some money.” Obviously ambitious, McDow put her
considerable talents to work for Hewitt by casing the bank and reporting her
observations to Hewitt. The robbery was captured on the bank’s security
cameras, which showed several men wearing masks and armed with handguns
3
Case: 10-10103 Document: 00511712032 Page: 4 Date Filed: 01/03/2012
No. 10-10103
and a taser. Stenline, Hewitt, and McDow acted as lookouts. As the risk-takers
were making their getaway, a dye-pack stowed with the stolen bills exploded,
rendering almost all of the money tainted. Recognizing that all business
undertakings are not successful, the gang quickly abandoned the tainted funds
and the getaway car in a local apartment complex. After this failure, Hewitt met
McDow at a drug store and told her that the bandits had not made any money
because the money bag had broken. McDow, who testified for the government,
was not informed of any future plans to rob a bank that day.
Because the Century Bank robbery failed, Duffey and Hewitt were
discouraged, but only temporarily. Indeed, they decided to rob another bank the
same day. Hewitt called Stenline at home that afternoon and invited him to join
a job in Garland. At 4:00 p.m., the same dye-stained group that victimized the
Century Bank, except for McDow and J.T., robbed the State Bank of Texas in
Garland. Because the group needed another getaway car, Nitty hoped to reverse
their loss with a different colored stolen Suburban — lucky-blue. Stenline and
Hewitt acted as lookouts while the others robbed the bank at gunpoint. The
robbers took small, but worthwhile profit of about $14,700 from the State Bank
of Texas.
On April 24, all five Appellants, along with Stenline and McDow, robbed
a Bank of America in Irving, Texas. Both Stenline and McDow agreed to work
the robbery that day. The group traveled in the same stolen, lucky-blue
Suburban that served them well in the State Bank of Texas job a month earlier.
This time, instead of just threatening the bank’s employees with guns, the
robbers used a taser to stun bank tellers. Hewitt, Stenline, and McDow acted
as lookouts for the robbery. This worthwhile venture yielded $84,000. It was,
however, the last productive showing of this loosely coordinated gang of bandits.
It was May 15 that FBI agents, on high alert because of the gang’s crime
spree, observed Stenline and Hewitt near the Bank of America in Fort Worth,
4
Case: 10-10103 Document: 00511712032 Page: 5 Date Filed: 01/03/2012
No. 10-10103
Texas. Based on Hewitt and Stenline’s suspicious behavior, the agents believed
that the men were casing a bank in the area. The following day, FBI agents once
again observed Hewitt, Stenline, McDow, and other suspected bandits in the
same area. The bank takeover team, armed with guns, drove to the bank and
parked. The team waited for Duffey to give the sign. But, no signal came.
Outside the bank, a man seemed to give Duffey a knowing wink, which led
Duffey to think the man indicated some knowledge of what was happening. He
immediately canceled the robbery. The rest of the group dispersed and returned
to Dallas. McDow testified that she “was prepared” but then she got a message
from Hewitt “saying it wasn’t going to happen, and everybody basically went
their separate ways.”
On May 21, an FBI surveillance team spotted Duffey, Ross, and Stenline
casing the two, different Bank of America locations in Richardson, Texas. FBI
agents, in short order, initiated an emergency wiretap. On May 22, information
gathered from the wiretap suggested that a robbery was imminent. The robbers
abandoned the plan to rob the banks in Richardson, however, because they
believed that the “alphabet boys,” also known as the FBI, were on to the plan.
Stenline testified that the robbery scheme included plans to kidnap a bank
manager. At trial, the government introduced a purple notebook in which
Duffey had recorded details about the Bank of America branches, including bank
employee names, employee vehicle descriptions and license plate numbers, and
employee home addresses. When asked at trial why they abandoned the scheme
to rob these banks, Stenline said: “I guess the plan didn’t come together.”
Finally, through telephone intercepts, FBI agents learned that the
Appellants, along with Stenline and McDow, were planning a robbery venture
at the Regions Bank in Garland, Texas on June 2. On June 1, Duffey followed
the usual plan and stole a Suburban — this time, silver in color. FBI agents
overheard Duffey saying that he had called for all hands at the ready and the
5
Case: 10-10103 Document: 00511712032 Page: 6 Date Filed: 01/03/2012
No. 10-10103
response was full participation, at least by our Appellants, for this particular job.
The FBI was also ready. Near the Regions Bank, FBI agents observed Duffey
and Ross parking the stolen, silver Suburban. They saw the two men meet with
Hewitt and McDow in the bank’s parking lot. The co-conspirators, Runnels and
Reece, parked behind the stolen Suburban in Runnels’s vehicle. Law
enforcement officials then moved in to arrest the gathered gang. Stenline and
McDow were arrested without incident, but Appellants — all of whom were
heavily armed — turned their attention from their crime to flight, at which point
the FBI and police turned their attention from arrest to pursuit. The Appellants
were ultimately apprehended after high-speed chases, hostage-taking,
kidnaping, police stand-offs, and collisions. But in the end, this confederacy of
bandits lay down their arms — if not voluntarily — and were given
transportation in a government Suburban to their new residence.
B.
In July and August of 2009, the case was tried before a jury. The jury
convicted the Appellants, in various combinations contingent upon their
involvement in each particular offense, of nine counts of Conspiracy to Commit
Bank Robbery,2 two counts of Attempted Bank Robbery under 18 U.S.C. §
2113(a) and (d),3 and five counts of Bank Robbery and Aiding and Abetting.4 The
Appellants were also convicted of multiple 18 U.S.C. § 924(c)(1) firearm charges
appurtenant to their violent federal crimes, which carried with them five to
2
Duffey and Hewitt were convicted of nine conspiracy counts, Reece was convicted of
three counts, Ross was convicted of eight counts, and Runnels was convicted of seven counts.
3
All of the Appellants were convicted of both attempted robbery counts under 18 U.S.C.
§ 2113(a) and (d).
4
Runnels, Hewitt, and Duffey were convicted of five bank robbery counts, and Reece
was convicted of one count. Ross was convicted of four counts.
6
Case: 10-10103 Document: 00511712032 Page: 7 Date Filed: 01/03/2012
No. 10-10103
twenty-five year mandatory minimum sentences.5 Additionally, Hewitt, Ross,
and Runnels were convicted as felons in possession of a firearm; and Ross was
convicted of kidnaping. Runnels was also convicted of assaulting a federal officer.
Consequently, the district court sentenced Duffey to 4,253 months (354
years) of imprisonment, Hewitt to 4,260 months (355 years) of imprisonment,
Ross to 3,960 months (330 years) of imprisonment, and Recce to 1,680 months
(140 years) of imprisonment. Based upon a violent recidivist enhancement,
Runnels was sentenced to twenty-nine life sentences and, should he complete
those sentences, to an additional 120 months in prison for being a convicted felon
in possession of a firearm.
II.
Each of the Appellants raise essentially the same arguments: that the
evidence supports only one conspiracy and, thus, the multiple conspiracy counts
in the indictment are duplicative, violating the Double Jeopardy Clause; second,
that the evidence is insufficient to support their convictions on two counts of
attempted bank robbery; and, finally, that the § 924(c)(1) firearm convictions
incidental to the two attempted robbery counts are void for want of an
underlying offense, that is, the attempted robbery charges. Hewitt, individually,
raises a sentencing issue, contending that the PSR inflates his total offense level,
rendering his prison sentence too lengthy.
III.
We begin our consideration of this appeal by addressing whether the
evidence shows only a single conspiracy to commit the multiple bank robberies,
as opposed to separate conspiracies for each robbery. If there is only one
conspiracy, the Appellants’ sentences would be significantly reduced.
5
Runnels, Hewitt, Duffey were convicted of fourteen § 924(c) counts. Ross was
convicted of thirteen counts, and Reece was convicted of six counts.
7
Case: 10-10103 Document: 00511712032 Page: 8 Date Filed: 01/03/2012
No. 10-10103
Courts may look to circumstantial evidence in order to determine the
conspiracy’s scope. United States v. Kalish, 690 F.2d 1144, 1151 (5th Cir.1982),
cert. denied, 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983). Unless the
evidence presented at trial establishes separate conspiracies as a matter of law,
whether a single conspiracy or multiple conspiracies existed is a question for the
jury to determine.6 United States v. Elam, 678 F.2d 1234, 1245 (5th Cir.1982);
United States v. Michel, 588 F.2d 986 (5th Cir.), cert. denied, 444 U.S. 825(1979). We follow a five-step analysis, commonly referred to as the “Marable
factors,” United States v. Marable, 578 F.2d 151, 154 (5th Cir.1978), to ascertain
whether the record demonstrates that a criminal venture constitutes one or more
conspiracies: (1) the time frame during which the alleged conspiracies occurred;
(2) the extent to which the same persons were involved and the nature of their
involvements; (3) whether the statutory offenses charged in the indictments
were the same; (4) whether the nature and scope of the defendants’ activities
charged in connection with each alleged conspiracy were repetitive and
continuous; and (5) whether the locations where the events alleged as part of
each conspiracy took place were the same. United States v. Atkins, 834 F.2d 426,
432-33 (1987); Kalish, 690 F.2d at 1151-52. No single Marable factor is outcome
determinative, and the Government bears the burden of proving that separate
offenses occurred by a preponderance of the evidence. United States v. Greer,
939 F.2d 1076, 1087 n.11 (5th Cir. 1991) (citing United States v. Levy, 803 F.2d
1390, 1393-94 (5th Cir.1986)). In evaluating the five factors, the Court must
consider the evidence in the light most favorable to the jury’s verdict. Elam, 678
F.2d at 1247.
6
The jury was not instructed to find whether a single conspiracy or multiple
conspiracies exist here. The jury was, however, instructed on nine conspiracy counts,
requiring the prosecution to present proof of nine, separate agreements. Presumably, if the
prosecution failed to meet this burden, then the jury would not have returned convictions on
nine, different conspiracies.
8
Case: 10-10103 Document: 00511712032 Page: 9 Date Filed: 01/03/2012
No. 10-10103
1. Time Frame. The robberies occurred over the course of six months in
2008. This inquiry is informed not only by the temporal duration of the
conspiracy but also whether there was any chronological overlap in the planning
of the crimes, i.e. whether two or more conspiracies were planned or conducted
during the same time period. See Levy, 803 F.2d at 1394-95; United States v.
Goff, 847 F.2d 149, 172 (5th Cir. 1988).
Two robberies occurred on March 28, 2008. The Government presented
evidence, however, that the group planned the second robbery only after the first
robbery was unsuccessful, because they had not netted sufficient loot. McDow
testified at trial that she only knew of the first robbery that day and was not
invited to take part in the second crime. Additionally, Stenline went home after
the first robbery and was not aware that there was going to be a second robbery
until after Hewitt called him at home. Thus, the evidence shows that two
separate agreements were reached, hours apart, to rob different banks on the
same day; and, consequently, agreements relating to these two robberies did not
exist in any overlapping or simultaneous time frame.
Although the Appellants contend that their agreement was a single, six-
month-long, conspiracy to rob banks, the Appellants presented no evidence
showing that there was an overarching plan connecting one robbery to another.
Furthermore, they presented no evidence supporting the existence of a single,
umbrella-agreement, covering their myriad of criminal escapades. Indeed, the
planning and agreement for the respective robberies and attempted robberies
appears to have been from day-to-day and bank-to-bank.
2. Personnel. This court has said that “where the membership of two
criminal endeavors overlap, a single conspiracy may be found.” Elam, 678 F.2d
at 1246. We have also noted that a “mere shuffling of personnel in an otherwise
on-going operation with an apparent continuity will not, alone, suffice to create
multiple conspiracies.” United States v. Nichols, 741 F.2d 767, 772 (5th Cir.
9
Case: 10-10103 Document: 00511712032 Page: 10 Date Filed: 01/03/2012
No. 10-10103
1984). Here, all of the robberies had three men in common: Duffey, Hewitt, and
Stenline. Moreover, the evidence suggests that both Hewitt and Duffey had
major responsibilities in the planning of the crimes. See United States v. Therm-
All Inc., 373 F.3d 625, 637 (5th Cir. 2004) (“A single conspiracy exists where a
‘key man’ is involved in and directs illegal activities, while various combinations
of other participants exert individual efforts toward a common goal.”) (quoting
United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir. 1987)); see also
Richerson, 833 F.2d at 1154 (“Parties who knowingly participate with core
conspirators to achieve a common goal may be members of an overall
conspiracy.”). Furthermore, although the same people did not participate in
each and every bank robbery, there was regular similarity in the group’s actors.
Thus, because Hewitt and Duffey acted as key men in organizing the crimes and
because the band of robbers on each occasion appears to have been drawn from
the same general group of outlaws, this consideration indicates a single
conspiracy.
3. Offense Charged. All nine conspiracy counts relate to the violation of 18
U.S.C. § 2113(a) and (d), which is indicative of a single conspiracy.
4. Overt Acts. Although all of the conspiracy counts related to bank
robbery, there was no duplicating evidence presented as proof of each crime. See
Kalish, 690 F.2d at 1152 (requiring that different, non-overlapping acts be
presented as evidence of separate conspiracies). Here, separate and distinct
evidence supports each conspiracy count. Still further, the evidence shows a
separate agreement for each robbery. For instance, Stenline and McDow
testified that the agreement to rob a bank would often be made mere days before
the intended robbery. Thus, because the evidence presented to prove each
conspiracy did not overlap, the absence of a unifying plan weighs in favor of
multiple conspiracies.
10
Case: 10-10103 Document: 00511712032 Page: 11 Date Filed: 01/03/2012
No. 10-10103
5. Geography. The Appellants assert that because all robberies occurred
in the Dallas Metroplex, the conspiratorial acts took place in one geographic
location. The robberies, however, took place at different banks throughout the
Dallas area, with no two banks robbed twice. Our geographic analysis can be
guided by a consideration of how the crime at issue is usually committed. Given
the episodic nature of the crime of bank robbery, as opposed to other criminal
schemes; the sporadic nature of these robberies; and the jury’s verdict of
multiple conspiracy convictions, we find that each bank served as a separate and
distinct location for the purposes of Marable. Compare United States v. Greer,
939 F.2d at 1087-88 (holding that when white supremacists committed sporadic
hate crimes, blocks away from each other, in a park and in a synagogue, the
evidence supported a finding of different locations, which endorsed the existence
of multiple conspiracies); with United States v. Nichols, 741 F.2d 767, 772 (5th
Cir. 1984) (holding that, in the case of a massive, established drug importation
scheme, New Orleans and Raceland, Louisiana; Belize; and Colombia were the
same geographic location, supporting the existence of one conspiracy).
Applying the Marable factors to the instant facts, we conclude that the
evidence is sufficient to establish multiple conspiracies. Although the
conspiracies had a certain continuity of personnel and a certain similarity in
method, the jury’s return of multiple conspiracy convictions is supported by the
evidence: there were separate and distinct agreements for each robbery; the
actual acts in the separate counts of the indictment, both alleged and proved,
were different; the geographic locations of the individual crimes were sufficiently
distinct, and the timing of the conspiracy was sufficiently long to suggest the
existence of separate agreements. Stated differently, although a loose
confederacy committed the crimes and the crimes underlying the conspiracies
were the same, the evidence relating to the other Marable factors is substantial,
so as to support the jury’s finding of multiple conspiracies.
11
Case: 10-10103 Document: 00511712032 Page: 12 Date Filed: 01/03/2012
No. 10-10103
IV.
A.
We come now to the Appellants’ challenge to the sufficiency of the evidence
relating to their two attempted robbery convictions under the first paragraph of
18 U.S.C. § 2113(a) and (d).7 Each Appellant was convicted under the same
federal statutes for attempted robbery, as they were for armed robbery; that is
to say that the crime of attempted bank robbery is enfolded in the same
statutory paragraphs as the crime of actual bank robbery, and one subsection
can reference another in stating the requirements of a particular crime.
The jury convicted all Appellants of two attempted robbery counts, when
the actual robbery plan was abandoned: first, based on their plan to rob the
Bank of America in Fort Worth and, second, based on their gathering at the
Regions Bank in Garland. At the Bank of America in Fort Worth, the takeover
team, armed with guns, drove to the bank and waited in a stolen Suburban for
Duffey to initiate the robbery. Duffey called off the plan at the last minute
because a bank patron winked at him, leading him to believe that the patron was
aware of the impending robbery. The Appellants left the bank parking lot
without any incident. There was no attempt to enter the bank or take the bank
by force that day.
Similarly, at the Regions Bank in Garland, an FBI surveillance team
observed the Appellants parking both a stolen silver Suburban and maroon pick-
7
The Appellants were not indicted under the second paragraph of 18 U.S.C. § 2113(a),
nor would the evidence in this case support an indictment against the Appellants under the
second paragraph of 2113(a). See 18 U.S.C. § 2113(a) (“Whoever enters or attempts to enter
any bank, credit union, or any savings and loan association, or any building used in whole or
in part as a bank, credit union, or as a savings and loan association, with intent to commit in
such bank, credit union, or in such savings and loan association, or building, or part thereof,
so used, any felony affecting such bank, credit union, or such savings and loan association and
in violation of any statute of the United States . . . [s]hall be fined under this title or
imprisoned not more than twenty years, or both.”). Here, under the counts at issue, the
Appellants did not enter or attempt to enter the bank.
12
Case: 10-10103 Document: 00511712032 Page: 13 Date Filed: 01/03/2012
No. 10-10103
up truck. After hearing Duffey say that he was ready to rob the bank, the agents
moved in to arrest the Appellants. At no point in time during this transaction
did the Appellants attempt to take the bank by force, enter the bank, or brandish
a firearm.
We start our sufficiency of the evidence analysis by differentiating between
the first paragraph of subsection (a) and subsection(d) of the federal bank
robbery statute. Whereas 18 U.S.C. § 2113(a)8 makes bank robbery and
attempted bank robbery a federal crime, § 2113(d)9 relates to armed robbery and
serves as an enhancement to the crimes under § 2113(a), when they are
accompanied by the use of firearms or an assault.10
The Appellants argue that § 2113(d), by its own terms, requires proof of
all of the elements of § 2113(a) plus the use of a firearm; and, thus, § 2113(a) is
a lesser-included offense of § 2113(d). This is true. Comparing the statutes set
out in the margins below, the plain language of the first paragraph of subsection
8
Whoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another, or
obtains or attempts to obtain by extortion any property or money
or any other thing of value belonging to, or in the care, custody,
control, management, or possession of, any bank, credit union, or
any savings and loan association
...
Shall be fined under this title or imprisoned not more than twenty years,
or both.
18 U.S.C. § 2113(a).
9
Whoever, in committing, or in attempting to commit, any offense
described in subsections (a) or (b) of this section assaults any
person, or puts in jeopardy the life of any person by the use of a
dangerous weapon or device, shall be fined under this title or
imprisoned for not more than twenty-five years or both.
18 U.S.C. § 2113(d).
10
The punishment for bank robbery is a maximum of twenty years in prison. 18 U.S.C.
§ 2113(a). The punishment for armed bank robbery is a maximum of twenty-five years in
prison. 18 U.S.C. § 2113(d).
13
Case: 10-10103 Document: 00511712032 Page: 14 Date Filed: 01/03/2012
No. 10-10103
(a) specifically requires proof of the defendant’s actual use of “force and violence”
or “intimidation” as an element of attempted robbery; and subsection (d) only
applies to defendants who have committed all of the elements of an offense
outlined in subsections (a) or (b). Because the first paragraph of § 2113(a)
requires evidence of the use of “force and violence” or “intimidation,” charges
under § 2113(d), premised upon violations of the first paragraph of subsection
(a), ipso facto require evidence of the use of “force and violence” or “intimidation.”
The Appellants further argue that the Government failed to offer any evidence
that they acted with “force and violence” or “intimidation,” while attempting to
rob the Bank of America in Fort Worth and the Regions Bank in Garland. Thus,
the Government’s failure to prove all of the statutory elements of the first
paragraph of § 2113(a) and (d) renders the Appellant’s attempted robbery
convictions invalid as a matter of law. We agree.
To be candid, the Government’s counter argument is without the slightest
merit. Essentially, the Government contends that the phrase “in attempting to
commit” in § 2113(d) excuses the Government of its burden of proving the
elements of the first paragraph of § 2113(a), including the defendants’ use of
“force and violence” or “intimidation.” The Government advances this argument
notwithstanding unanimous precedent to the contrary and the plain language
of the statute making it unequivocally clear that an attempt crime under §
2113(d) requires proof of the elements of § 2113(a) or (b).
Indeed, we have previously confirmed that the “natural reading of the
text” of the first paragraph of § 2113(a) requires that the evidence show an
actual use of “force and violence, or intimidation.” United States v. Bellew, 369
F.3d 450, 454 (5th Cir. 2004). Furthermore, the natural language of § 2113(d)
enfolds all of the elements of § 2113(a), rendering § 2113(a) a lesser-included
offense of § 2113(d). Burger v. United States, 454 F.2d 723 (5th Cir. 1972) (per
curiam) (“Section 2113(a) is a lesser included offense of Section 2113(d).”)
14
Case: 10-10103 Document: 00511712032 Page: 15 Date Filed: 01/03/2012
No. 10-10103
(brackets omitted); see also United States v. Fletcher, 121 F.3d 187, 193 (5th Cir.
1997) (“[T]he elements of § 2113(d) include all of the elements of § 2113(a), plus
the additional element of assault.”), overruled on other grounds by United States
v. Cotton, 535 U.S. 625 (2002); United States v. Davila-Nater, 474 F.2d 270 (5th
Cir. 1973); Rose v. United States, 448 F.2d 389 (5th Cir. 1971);United States v.
White, 440 F.2d 978 (5th Cir.), cert. denied 404 U.S. 839 (1971). Indeed, the
Supreme Court has described § 2113(a) as “the same offense as § 2113(d) without
the elements of aggravation.” Green v. United States, 365 U.S. 301, 303 (1961);
see also Prince v. United States, 352 U.S. 322, 327, 327 n.6 (1957) (explaining
that, in enacting the Bank Robbery Act, “[i]t was manifestly the purpose of
Congress to establish lesser offenses,” and noting that § 2113(d) is “a special
provision for increased punishment for aggravated offenses”).
Thus, in order for the Appellants’ attempted robbery convictions to survive
a sufficiency of the evidence review, the Government must have presented
evidence that the Appellants acted with “force and violence, or intimidation”
during the incidents at the Bank of America in Fort Worth and the Regions
Bank in Garland. See United States v. Stracener, 959 F.3d 31, 33 (5th Cir. 1992).
The Government, however, does not offer any proof of “force and violence, or
intimidation” to support of either attempted robbery count. Instead, it concedes
that, “[u]nder Bellew [Fifth Circuit case interpreting § 2113(a)][,] . . . the
defendants here would likely prevail.” Appellee br. at 48. Because the
Government acknowledges that the defendants did not act with “force and
violence, or intimidation,” as required by the first paragraph of 18 U.S.C. §
2113(a) and (d) during the incidents at the Bank of America in Fort Worth and
the Regions Bank in Garland, we reverse and vacate both attempted robbery
convictions and sentences.
B.
15
Case: 10-10103 Document: 00511712032 Page: 16 Date Filed: 01/03/2012
No. 10-10103
We next examine the two, separate § 924(c)(1)11 charges appurtenant to
the two attempted robbery charges. Section 924(c)(1) punishes the use of a
firearm in the commission of a federal crime of violence. Id. We held in United
States v. Munoz-Fabela that in order for the Government to convict a defendant
under § 924(c)(1), “it is only the fact of the offense . . . that is needed to establish
the required predicate.” 896 F.2d 908, 911 (5th Cir.), cert. denied, 498 U.S. 824(1990). The Government failed to establish “the fact of the offense” when it
failed to establish the elements of attempted robbery were present during the
incidents at the Bank of America in Fort Worth and the Regions Bank in
Garland. Thus, the § 924(c)(1) charges are not predicated upon behavior that
constitutes the predicate federal offense. See id. We therefore reverse and vacate
the Appellants’ two § 924(c)(1) convictions and sentences.
V.
Finally, Hewitt challenges his sentence, asserting that the presentence
report overstates his total offense level; and, thus, his sentence is excessive.
First, Hewitt challenges the inclusion of multiple conspiracy counts in his
sentence. This issue has already been addressed and has no merit.
11
18 U.S.C. § 924(c)(1)(I) provides:
“Except to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other provision
of law, any person who, during and in relation to any crime of
violence or drug trafficking crime (including a crime of violence
or drug trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or dangerous
weapon or device) for which the person may be prosecuted in a
court of the United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such crime of violence or
drug trafficking crime . . . be sentenced to a term of
imprisonment of not less than 5 years”
16
Case: 10-10103 Document: 00511712032 Page: 17 Date Filed: 01/03/2012
No. 10-10103
Second, Hewitt asserts that the presentence report exaggerates his
leadership role in the robberies and thereby improperly assigns multiple, four-
point enhancements to his sentences. When a sentencing judge, in the exercise
of discretion, imposes a sentence “within a properly calculated Guideline range,
in our reasonableness review we will infer that the judge has considered all the
factors for a fair sentence set forth in the Guidelines” and that “it will be rare for
a reviewing court to say such a sentence is ‘unreasonable.’” United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005). Hewitt fails to provide a factual or
legal basis explaining why these enhancements were erroneous; this issue is
thus waived. Even if the challenge to the enhancements has not been waived,
there is ample evidence that Hewitt took a leadership position in the confederacy
of robbers. Thus, we find no merit to Hewitt’s challenges to the presentence
report.
VI.
To sum up, we reject the Appellants’ assertions (1) that the Government
violated the double jeopardy clause by charging multiple conspiracies instead of
a single conspiracy, and (2) that the presentence report overstates Hewitt’s
offense level. We hold, however, that the Government presented insufficient
evidence to convict the Appellants on the counts of attempted robbery and the
corresponding § 924(c)(1) counts.
Thus, we AFFIRM all of the Appellants’ convictions, with the exception of
the Appellants’ two attempted robbery and two accompanying firearm offenses.
We REVERSE and VACATE the convictions of all Appellants on Counts Three,
Four, Eighteen, and Nineteen. Accordingly, we REMAND for resentencing in
accordance with this opinion.
AFFIRMED in part, REVERSED and VACATED in part, and
REMANDED for resentencing.
17