207 F.3d 839 (6th Cir. 2000), 98-5552, United States v Butler

Docket Nº:COURTNEY BUTLER (98-5552) AND JULIUS RETIC (98-5554), DEFENDANTS-APPELLANTS.
Citation:207 F.3d 839
Party Name:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V.
Case Date:March 29, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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207 F.3d 839 (6th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

V.

COURTNEY BUTLER (98-5552) AND JULIUS RETIC (98-5554), DEFENDANTS-APPELLANTS.

Nos. 98-5552, 98-5554

UNITED STATES COURT OF Appeals, FOR THE SIXTH CIRCUIT

March 29, 2000

Argued and Submitted: June 18, 1999

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 97-20030--Julia S. Gibbons, Chief District Judge.

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[Copyrighted Material Omitted]

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Tony R. Arvin (argued and briefed), Asst. U.S. Atty., Memphis, TN, for Plaintiff-Appellee.

Randall P. Salky (briefed), Law Office of Randall Salky, Memphis, TN, for Defendant-Appellant Courtney Butler.

Stephen R. Leffler (argued and briefed), Memphis, TN, for Defendant-Appellant Julius Retic.

Before: Jones, Cole, and Clay, Circuit Judges.

CLAY, J., announced the judgment of the court and delivered an opinion, in which JONES and COLE, JJ., concurred except as to Part II.B.1. JONES, J. (pp. 849-52), delivered a separate opinion, in which COLE, J. concurred, which constitutes the opinion of the court on the issue addressed in Part II.B.1.

OPINION

Clay, Circuit Judge.

Defendant Courtney Butler appeals from his judgment of conviction and sentence to 235 months of imprisonment for his commission of armed bank robbery in violation of 18 U.S.C. § 2113 and 18 U.S.C. § 2. Defendant Julius Retic appeals from his judgment of conviction and sentence to 120 months of imprisonment for his commission of armed bank robbery in violation of 18 U.S.C. § 2113 and 18 U.S.C. § 2, and for using and carrying a firearm during and in relation to a crime in violation of 18 U.S.C. § 924(c). For the reasons below, we AFFIRM the judgment of the district court as to Butler, but VACATE Retic's sentence and REMAND his case for resentencing.

I.

On February 19, 1997, a federal grand jury sitting in the Western District of Tennessee returned an indictment charging Courtney Butler and Julius Retic, along with three other individuals, with twelve counts of criminal activity. The relevant facts surrounding their separate offenses and their respective sentencings are as follows.

A. BUTLER

On May 29, 1996, Butler and Julian Shelton robbed the Volunteer Bank in Henning, Tennessee. During the robbery, Butler wore a wig covered with a hat and Shelton wore safety glasses and a hat, while Shelton was armed with a hand gun. Together they stole a total of $12,269 from the bank. When the federal grand jury handed down its twelve-count indictment, it charged Butler in Count 5 with aiding and abetting armed bank robbery in violation of 18 U.S.C. § 2113 and 18 U.S.C. § 2 in connection with his participation in this robbery at Volunteer Bank. The indictment also charged Butler in Counts 1 through 4, Counts 6 through 8, and Counts 11 and 12 with numerous other bank robberies and the use of firearms during those offenses. On March 5, 1998, Butler pleaded guilty to Count 5 of the indictment pursuant to a plea agreement in which the government dismissed the remaining charges against him.

At sentencing on April 3, 1998, the district court determined that Butler had three convictions that qualified him for career offender status under § 4B1.1 of the Sentencing Guidelines. Specifically, the district court took note of a 1990 conviction for conspiracy to sell cocaine, a 1994 conviction for delivery of under a half-gram of cocaine, and a 1994 conviction for aggravated burglary. Additionally, the district court denied Butler's request for a

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downward departure. The district court enhanced Butler's criminal history category accordingly, and sentenced Butler to 235 months of imprisonment, 3 years of supervised release, and payment of restitution in the amount of $6,134.50, or one-half the loss to the bank. Butler filed a timely notice of appeal to this Court on April 14, 1998.

B. RETIC

On July 19, 1996, at the age of twenty, Retic robbed the Munford Union Bank in Atoka, Tennessee along with Curtis Harden, who was seventeen years of age at the time. Butler was waiting nearby in a getaway vehicle. During the robbery, which took place in the middle of the afternoon, Retic put a handgun to the head of a customer service representative, instructed her not to push the alarm button, and told her that if she moved, he would "cap" her. Harden repeatedly asked Retic not to shoot the representative, and Retic complied. Harden jumped the teller counter and removed money. During the robbery, Retic saw a bank teller motion to her husband and children, who were about to enter the bank to pick her up, not to enter. Retic ordered the husband and children into the bank. As Retic and Harden were leaving the bank, they encountered another customer. Retic grabbed him, pointed the gun at him and ordered him into the bank. Ultimately, Retic and Harden left the bank with $16,330. Later that evening, local police picked up Harden walking along the highway. Harden later made an admission identifying Butler as the individual who planned the robbery and Retic as the individual who accompanied him into the bank.

In connection with this incident, the indictment charged Retic in Count 11 with armed bank robbery in violation of 18 U.S.C. § 2113 and 18 U.S.C. § 2, and in Count 12 with using and carrying a firearm during and in relation to that bank robbery in violation of 18 U.S.C. § 924(c). On July 16, 1997, Retic pleaded guilty to Count 11, and on November 14, 1997, he pleaded guilty to Count 12. At a sentencing hearing held on April 3, 1998, Retic received a reduction in his sentence pursuant to § 5K1.1 of the Sentencing Guidelines for acceptance of responsibility. However, the district court enhanced Retic's offense level by two levels pursuant to § 3B1.4 of the Guidelines on the grounds that he had encouraged a minor, Harden, to participate in the crime. The district court ultimately sentenced Retic to sixty months of imprisonment for Count 11 and sixty months of imprisonment for Count 12, to be served consecutively. Retic filed a timely notice of appeal to this Court on April 15, 1998.

II.

Before this Court, both Butler and Retic challenge only their sentences, and not their underlying convictions. We review the district court's legal conclusions regarding the Sentencing Guidelines de novo. See United States v. Garner, 940 F.2d 172, 174 (6th Cir. 1991). Moreover, we review a district court's factual findings in applying the Sentencing Guidelines for clear error. See United States v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997).

A.

Butler argues that the district court erred by sentencing him as a career offender pursuant to the Sentencing Guidelines. The Guidelines provide that a defendant is a career offender if (1) he was at least eighteen when he committed the offense of conviction; (2) the offense of conviction is a felony that is a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of crimes of violence or controlled substance offenses. See USSG § 4B1.1. The Guidelines further provide that a "controlled substance offense" includes any felony offense, state or federal, that involves the distribution of a controlled substance. See USSG § 4B1.2(b). Butler argues that of the three convictions the district court cited in support of its § 4B1.1 enhancement, the two "controlled substance offenses" were actually simple possession offenses and the

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third, a conviction for aggravated burglary, was not a crime of violence. Therefore, Butler argues, his prior convictions did not qualify him as a career offender. Butler's arguments are in vain.

In determining whether a particular offense constitutes a "controlled substance offense" or a "crime of violence" under the Guidelines, this Court employs a categorical approach "limited to an examination of the fact of conviction and the statutory definition of the predicate offense." United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir. 1995). Under this approach, "'it is not only impermissible, but pointless, for the court to look through to the defendant's actual criminal conduct....'" Id. (quoting United States v. John, 936 F.2d 764, 767 (3d Cir. 1991)). Indeed, the categorical approach eliminates "'the practical difficulties and potential unfairness of a factual approach' to each prior conviction." See United States v. Kaplansky, 42 F.3d 320, 322 (6th Cir. 1994) (quoting Taylor v. United States, 495 U.S. 575, 600-02 (1990)).

Significantly, Butler does not contest the fact of his conviction for the three cited offenses, and does not contest that the statutes under which he was convicted are statutes that criminalize "controlled substance offenses" and "crimes of violence." Rather, he argues that this Court should eschew the categorical approach described above by looking at the substantive facts behind each of those offenses. Because it is improper for a court to go beyond the fact of conviction and the definitions of the statutes under which Butler was convicted to determine whether he qualified as a career offender, the district court did not err in enhancing Butler's sentence under § 4B1.1 of the Guidelines.

Finally, although Butler argues that the district court should have departed downwards in sentencing him, this claim is unreviewable. The Sentencing Reform Act of 1984 ("Act") provides for limited appellate review of sentences for federal offenses. See Williams v. United States, 503 U.S. 193, 199 (1992). Under the Act, a defendant may only appeal his sentence if it (1) was imposed in violation of law; (2) reflects an incorrect application of the Sentencing Guidelines; (3) is greater than the sentence specified in the applicable Guidelines range...

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