U.S. v. Duerson

• Decision Date: 03 June 1994
• Docket Number: No. 93-2331,93-2331
• Citation: 25 F.3d 376
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David W. DUERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 376

25 F.3d 376

UNITED STATES of America, Plaintiff-Appellee, v. David W. DUERSON, Defendant-Appellant.

No. 93-2331.

United States Court of Appeals Sixth Circuit.

Argued April 21, 1994.

Decided June 3, 1994.

Jeffrey E. Theodore, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Grand Rapids, MI, for plaintiff-appellee.

J. Terrance Dillon (argued and briefed), Dykema, Gossett, Spencer, Goodnow & Trigg, Grand Rapids, MI, for defendant-appellant.

Before: MERRITT, Chief Judge; and KENNEDY and NELSON, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

Armed with a loaded sawed-off shotgun and a container of Mace, defendant David Duerson, a managerial employee of the United Parcel Service, committed a robbery in which he took more than $185,000 from a UPS dispatcher and a courier employed by Federal Armored Services, Inc., an armored truck service. Mr. Duerson subsequently pleaded guilty to having violated 18 U.S.C. Sec. 1951, which prohibits obstruction of commerce by robbery, and 18 U.S.C. Sec. 924(c), which prohibits use of a firearm during and in relation to a crime of violence. He received a 37-month sentence for the robbery offense and a statutorily mandated consecutive ten-year sentence for the firearm offense.

Mr. Duerson contends on appeal (1) that the robbery represented a single act of aberrant behavior that ought to have entitled him to consideration for a downward departure from the sentencing range prescribed in the United States Sentencing Commission's Guidelines Manual; (2) that the offense level assigned to him under the sentencing guidelines ought not to have been increased, as it was under U.S.S.G. Sec. 3B1.3, for abuse of a position of trust or use of a special skill; and (3) that the mandatory ten-year sentence for the firearm offense, coupled with the 37-month sentence for the robbery offense, violated the constitutional prohibition against cruel and unusual punishment.

The defendant was not entitled to a downward departure as of right. Regardless of whether it would have been within the sentencing judge's discretion to grant a downward departure here, the judge made it clear that he was not disposed to impose a sentence below the guideline range. Accordingly, and because we do not find the remaining assignments of error persuasive, we shall affirm the sentence.

I

Mr. Duerson, who was 37 years old at the time of the robbery, had been employed by UPS for most of his adult life. He had worked his way up to the position of industrial engineering manager and was earning a six-figure salary. A married man with three children, he was estranged from his wife and was in the process of getting a divorce. Child support payments and other obligations had left him short of cash, and he had recently written six insufficient-funds checks totaling more than $11,000. He expected that the robbery would yield $200,000. On the night before he committed the crime, he and a girlfriend talked of traveling to Las Vegas in a few days for a long weekend. (It does not appear the girlfriend was involved in the crime or knew that Mr. Duerson was planning it.)

The robbery took place shortly after 8:00 a.m. on Saturday, March 20, 1993, in a room that housed the vault at a UPS distribution center located on a large tract of land in Wyoming, Michigan. Mr. Duerson entered the room wearing a clear plastic mask and carrying both a container of chemical spray and a loaded 12-gauge shotgun with a barrel approximately 13 inches in length. Mr. Duerson released chemical spray on the two occupants of the room, told them not to move, and made off with two canvas bags containing a total of $186,185.05 in cash. One of the victims tried to call the authorities when Mr. Duerson left, but found that the telephone was dead; Mr. Duerson had cut the telephone wires ahead of time.

Mr. Duerson fled the scene in one of the all-terrain vehicles that UPS kept at the facility for traversing rough ground. His shotgun accidently fell out of the vehicle during the escape. Mr. Duerson drove on, but soon abandoned the all-terrain vehicle for a UPS delivery van that he had parked nearby. After driving the van to a parking lot where he had left a car rented several days before the robbery, Duerson transferred the bags of money to the rental car and drove off in it. He took an airplane to Wisconsin later in the day and secreted part of the stolen money there. Most of the rest was hidden in the trunk of his girlfriend's Mercedes automobile.

The police were able to trace the shotgun to Mr. Duerson's father, and this soon led to the defendant's arrest. All but about $9,000 of the stolen funds was ultimately recovered.

It is undisputed that defendant Duerson had been thinking about the robbery for some weeks before he committed it. As early as February 26, 1993, he was asking questions about the wiring of the telephone system at the Wyoming facility. He initially cut the telephone wires on March 17, planning to commit a robbery that day, but changed his mind for some reason. He cut the wires a second time before accosting the two men at the vault on March 20.

Several weeks before the robbery Mr. Duerson began taking UPS personnel for walks through the Wyoming facility, making it his business to tour the vault room with them. He also inquired, a few weeks before the robbery, about how to operate an all-terrain vehicle. During the same time frame he asked a co-worker where he could buy Mace, saying that he wanted it for the protection of his girlfriend. He also questioned lower level employees about the schedule followed by the courier service in making pickups of cash. (The money taken on March 20 was to have been stored by the courier service over the weekend prior to delivery to a bank on Monday morning, March 22.) Finally, Mr. Duerson personally cut off the barrel of the shotgun shortly before the robbery.

Criminal proceedings were instituted against Mr. Duerson soon after his arrest, and the United States Attorney for the Western District of Michigan filed a four-count information against him in May of 1993. On July 13, pursuant to a plea agreement, Mr. Duerson pleaded guilty to the first two counts of the information. Counts three and four, which charged unlawful transportation of stolen currency and possession of an unregistered short-barreled shotgun, were ultimately dismissed.

Prior to the defendant's sentencing hearing, which was held on September 28, 1993, a probation officer conducted an extensive pre-sentence investigation and prepared a lengthy report for the court. The probation officer recommended assigning Mr. Duerson an adjusted guideline offense level of 21 for the robbery offense. This reflected a three-level decrease in the base offense level for acceptance of responsibility and a two level increase, pursuant to U.S.S.G. Sec. 3B1.3, for abusing a position of trust. The probation officer expressed himself as follows on the latter issue:

"In his capacity as an upper management employee of United Parcel Service, defendant was able to accumulate a vast array of knowledge regarding the inner-workings of the UPS system without any second guessing [by lower-level employees]. Defendant was able to peruse various departments within the UPS facility at will. This was in contrast to lower level employees who are restricted to a specific duty area per company policy. Defendant's position also allowed him to inquire of lower level employees, questions which were sensitive in nature, including those which pertained to the Federal Armored Courier schedule which were totally outside Mr. Duerson's area of official responsibility." ¹

Mr. Duerson had no prior criminal record, which meant that the guidelines placed him in Criminal History Category I. The guideline sentencing range for a person in this category with an adjusted offense level of 21 is imprisonment for 37-46 months. The probation officer noted that the sentencing court might wish to consider departing to a level below 37 months because of the fact that 18 U.S.C. Sec. 924(c)(1) mandates a consecutive ten-year sentence for using a short-barreled shotgun. The defendant gave the court a sentencing memorandum urging a downward departure on the ground that "the conduct giving rise to this offense constituted a single act of 'aberrant behavior' by the defendant."

The court rejected the legal argument on which the defendant's request for a departure was based, and the court went on to express the view that the mandatory ten-year sentence and a sentence within the guideline range for the robbery "are fair in this particular case...." The court accepted a recommendation by the U.S. Attorney's office that Mr. Duerson be sentenced for the robbery offense at the bottom of the guideline range. ²

II

Under 18 U.S.C. Sec. 3553(b), a district court must impose a sentence within the guideline range "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." The sentencing commission has acknowledged that "[t]he controlling decision as to whether and to what extent departure is warranted can only be made by the courts," see U.S.S.G. Sec. 5K2.0, and such decisions must be made in the first instance by district courts. Congress has directed courts of appeals to "give due deference to the district court's application of the guidelines to the facts," and a district court's findings of fact must be accepted by the court of appeals unless clearly erroneous. 18 U.S.C. Sec. 3742(e).

The introductory chapter of the Guidelines Manual contains a section on "Probation and Split Sentences" that tells how the guidelines work with respect to a first offender who commits an "economic" crime of a sort that would often have resulted in nothing more than a sentence of probation...