United States v. Byron Spears

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1932WM
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United States of America, *
*
Appellee, *
* On Appeal from the United
v. * States District Court
* for the Western District
* of Missouri.
Byron Spears, *
*
Appellant. *
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Submitted: November 14, 2000
Filed: January 3, 2001
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Before McMILLIAN, RICHARD S. ARNOLD, and BOWMAN, Circuit Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
Byron Spears appeals from his conviction and sentencing for the crimes of bank
robbery, 18 U.S.C. § 2113(a), and use of a firearm during a bank robbery, 18 U.S.C.
§ 2113(d). He argues that the District Court1 erred in not allowing him to withdraw his
guilty plea as well as in its application of the Sentencing Guidelines. We affirm.
1
The Hon. Nanette K. Laughrey, United States District Judge for the Western
District of Missouri.
I.
As stipulated by the parties at sentencing, the facts are these. One of Mr.
Spears's co-defendants, Jackie Goodseal, was working as the driver of a Brinks
armored truck that carried currency to and from automated teller machines. Ms.
Goodseal's co-worker, Robert Atkins, had just returned from servicing an ATM in a
store when an armed man forced him into the passenger compartment of the van and
ordered Ms. Goodseal to drive off. Some of the robber's co-conspirators followed the
Brinks truck to a deserted road, where they removed the currency from the truck and
took Atkins's weapon, car keys, and two-way radio. The government offered to prove
that the money on the truck belonged to several FDIC-insured institutions.
According to the government, the robbers then drove to Mr. Spears's house. Mr.
Spears allegedly met them there and hid the money in his basement. He testified at his
guilty-plea hearing that he had participated in the planning of the robbery, including the
decision to use a gun, that he knew the Brinks truck would be taken to another location
in the course of the crime, that at the time of the robbery he was acting as a "watchout"
at a nearby convenience store, and that the getaway car was rented on his business
account.
Mr. Spears asserts several justifications for withdrawing his plea. First, he
claims that his decision to plead guilty was not "knowing" because he did not know that
the government considered him a manager or organizer in the conspiracy. Second, he
argues that he has "consistently said he was innocent of the charges," explaining his
sworn admission of every element of the offense as the result of "pressure tactics from
the FBI." Brief of Appellant at 15. Third, he argues that his plea was not a voluntary
and intelligent choice among alternative courses of action because he was under
pressure from the FBI and confused about "who the trier of fact was." Id. Mr. Spears's
argument appears to be that if these reasons are "fair and just," Fed. R. Crim. P. 32(e),
then we should direct the District Court to grant the motion for withdrawal of plea.
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Rule 32(e) is not a mandate, however. It is a grant of discretion, and we reverse only
where that discretion is abused. United States v. Prior, 107 F.3d 654, 657 (8th Cir.
1997).
The District Court concluded that Mr. Spears's guilty plea was knowing and
voluntary. After de novo review, United States v. Gray, 152 F.3d 816, 819 (8th Cir.
1998), we agree. Mr. Spears was represented by counsel at the entry of his plea. He
does not claim on appeal that his lawyer misinformed him or failed to explain to him
the potential legal consequences of his choices. He testified at his guilty-plea hearing
that he understood what he was doing and that no one had threatened him to get him
to plead guilty. Moreover, he admitted to every element of the offense, under oath, in
some detail. Under these circumstances, the relatively mild "pressure tactics" Mr.
Spears attributes to the FBI do not raise serious questions about the validity of his plea.
The prosecution often comes to the plea-bargaining table with an advantage, but we
have not been shown that it abused that advantage in its negotiations with Mr. Spears.
Nor was his plea rendered unknowing by any confusion about how he would fare under
the Sentencing Guidelines. See United States v. Baxter, 128 F.3d 670-71 (8th Cir.
1997) (District Court had discretion to deny withdrawal of plea by defendant who
claimed counsel underestimated his sentence, after defendant had testified at entry of
plea that he was satisfied with counsel and understood the range of imprisonment he
might face). As for his alleged confusion about "who the trier of fact was," we are not
willing to accept without further explanation that a defendant who had a lawyer, and
who stated under oath that he understood his right to a jury trial, was really unsure
about who was responsible for deciding his case. Because Mr. Spears's plea was, to
all appearances, knowing and voluntary, the denial of his plea-withdrawal motion was
not an abuse of discretion.
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II.
Mr. Spears next claims that the District Court erred in enhancing his sentence
under U.S.S.G. § 2B3.1(b)(4)(A). That Guideline dictates that a defendant's offense
level should be enhanced by four levels if "any person was abducted to facilitate
commission of the offense or to facilitate escape . . .." Mr. Spears does not deny that
Mr. Atkins was abducted or that the abduction was committed to facilitate the offense
or the escape. Instead, he insists that he did not agree to, plan for, or commit the
abduction, and was not even present when it was committed. But those facts make no
difference. As long as the abduction of Mr. Atkins was "reasonably foreseeable,"
U.S.S.G. § 1B1.3(a)(1)(B), Mr. Spears's offense level should be enhanced. We think
it would not have been hard to foresee. Mr. Spears knew that Ms. Goodseal would not
be the only employee on the Brinks truck, he knew that one of his partners would rob
the truck at gunpoint, and he knew that the truck would be brought to a deserted
location where the currency would be unloaded into the getaway car. Someone with
that knowledge could hardly have been surprised to learn that steps were taken to
prevent Mr. Atkins from calling the police, and that those steps included forcing him
to accompany the robbers to the place where they planned to leave the truck.
Mr. Spears argues that his offense level should have been reduced because he
played a minor or even minimal role in the offense. In a case factually similar to this
one, we affirmed the denial of a minor-participant reduction where a defendant fully
understood the nature and extent of the criminal enterprise and helped to recruit one of
its members. See United States v. Jankowski, 194 F.3d 878, 882 (8th Cir. 1999). Mr.
Spears not only participated in planning sessions but hosted them at his pager shop,
helped to recruit another participant, served as a lookout, and hid the money in his
basement. The District Court refused to find that Mr. Spears was less culpable than
most of his fellow participants, and we see no clear error in that refusal. See id.(standard of review).
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Finally, Mr. Spears claims that he gave substantial assistance to the government
and that the Court should have reduced his sentence for that reason. This argument is
premature. Mr. Spears bargained for a motion to reduce his sentence under Federal
Rule of Criminal Procedure 35, not for a downward-departure motion under U.S.S.G.
§ 5K1.1. Under Rule 35, the government may move for a reduced sentence at any time
up to one year after sentencing. Fed. R. Crim. P. 35(b). At Mr. Spears's sentencing
hearing, which took place on March 28, 2000, an FBI agent testified that the
government was still trying to corroborate some of the information Mr. Spears had
provided. Because the government could still decide to file a Rule 35 motion, the issue
is not ripe for review.
For the foregoing reasons, the judgment of the District Court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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