U.S. v. Dowd
| Decision Date | 13 June 2006 |
| Docket Number | No. 05-15067.,05-15067. |
| Citation | 451 F.3d 1244 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert Earl DOWD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Paul R. Cooper (Court-Appointed), Cooper & Cooper, Montgomery, AL, for Dowd.
Andrew O. Schiff, Tommie Brown Hardwick, Montgomery, AL, for U.S.
Appeal from the United States District Court for the Middle District of Alabama.
Before HULL, WILSON and GOLDBERG*, Circuit Judges.
Appellant Robert Earl Dowd ("Dowd") appeals his convictions and 305 months' total sentence for robbing a United States postmaster, and in so doing placing his life in jeopardy by the use of a dangerous weapon, in violation of 18 U.S.C. §§ 2 and 2114(a); using a firearm in the commission of a crime of violence, namely the postal robbery, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A); unlawful conversion of thirteen postal money orders, in violation of 18 U.S.C. § 500; and felony possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). After review and oral argument, we affirm.
On August 30, 2004, Dowd and his female accomplice, Bobbie Jo Lee ("Lee") robbed the Fitzpatrick Post Office in rural Bullock County, Alabama. Fitzpatrick postmaster Bobby Adair ("Adair") testified at Dowd's trial. According to Adair, Dowd pulled a gun and demanded that Adair hand over the money order machine, blank money orders, and money. The robbery was recorded on the post office's video recorder.1
On August 31, 2004, Lee confessed to U.S. Postal Inspectors that she and Dowd had committed the robbery. Lee led the inspectors to where Lee and Dowd had discarded the stolen money order machine. Later, the inspectors discovered that Dowd had negotiated a number of the stolen money orders, and the inspectors found the remaining stolen money orders in Dowd's car. The gun used in the robbery was never recovered.
On September 2, 2004, Dowd was arrested in Florida. Prior to interrogating Dowd, the inspectors presented Dowd with a Miranda rights form.2 The form includes a "WARNING" and a "WAIVER" section, each followed by a signature line. The "WARNING" section on the top half of the form states that "before you are asked any questions, you must understand your rights," and then lists the Miranda rights. Dowd signed beneath the warning, acknowledging that "I have read this statement of my rights (This statement of my rights has been read to me) and I understand what my rights are."
The "WAIVER" section on the bottom half of the form provides a space for a suspect to sign that he is willing to answer questions without a lawyer and that he was not coerced to speak. Dowd chose not to sign the waiver. Instead, one of the inspectors wrote on the form that Dowd "did not want to sign [the waiver], but does understand [his Miranda rights]."
Although he did not sign the waiver, Dowd verbally agreed to talk. The inspectors described accomplice Lee's account of the robbery and her claim that Dowd had attempted to rape her. Dowd responded by denying any sexual impropriety with Lee, but admitted that they had committed the robbery. Dowd first admitted that he had used a gun in the robbery, but then altered his story, claiming that he had used a water gun or a pellet gun rather than a real gun.
An inspector asked Dowd if he wanted to write down his side of the story, to which Dowd responded yes. The inspector reread Dowd his rights and wrote out a statement of the facts as described by Dowd. Dowd signed the statement, which included Dowd's averment that he "was waiving his rights to silence and counsel, and that the statement was true and correct." In the written statement, Dowd admitted that he and Lee robbed the post office and that he used a gun during the robbery. The written statement in no way suggested that the gun Dowd used in the robbery was a toy.
On November 30, 2004, a grand jury for the Middle District of Alabama returned a twenty-nine count superseding indictment (hereinafter "the indictment") against Dowd and Lee. Count One of the indictment charged that on August 30, 2004, Dowd and Lee robbed the postmaster of the Fitzpatrick Post Office, and in so doing put the life of the postmaster in jeopardy by use of a dangerous weapon, in violation of 18 U.S.C. §§ 2 and 2114(a). Count Two charged Dowd and Lee with using a firearm in the commission of a crime of violence, specifically the postal robbery, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A). Counts Three through Fifteen charged that Dowd stole and fraudulently converted money orders he acquired in the robbery, in violation of 18 U.S.C. § 500.
Counts Sixteen through Twenty-Eight of the indictment applied only to co-defendant Lee. Count Twenty-Nine charged Dowd as an ex-felon in possession of a firearm during the week prior to the postal robbery, in violation of 18 U.S.C. § 922(g)(1). The government proffered evidence that Dowd sold a Rossi .357 revolver on August 26, 2004, and attempted to either buy or borrow it back on August 30, 2004, the day of the postal robbery.
Before trial, the case was assigned to United States District Judge Myron Thompson, who denied Dowd's motions to suppress his custodial statement and to sever the Count Twenty-Nine firearm charge. On March 3, 2005, Dowd's case was reassigned to United States District Judge Truman M. Hobbs. After a two-day trial before Judge Hobbs on March 14 and 15, 2005, the jury found Dowd guilty of Counts One through Fifteen and Count Twenty-Nine, all the counts charged as to Dowd in the indictment.
Judge Hobbs held sentencing hearings on May 31, 2005 and June 16, 2005. At the end of the June 16, 2005 hearing, Judge Hobbs continued sentencing because certain sentencing issues had yet to be resolved. Shortly thereafter, Judge Hobbs withdrew from the case, and on June 21, 2005, the case was reassigned from Judge Hobbs back to Judge Thompson. Dowd moved for a new trial on the basis of the changes in judge, a motion which Judge Thompson denied.
Judge Thompson held a final sentencing hearing on September 2, 2005. At the hearing, the government renewed an earlier oral motion to dismiss Counts Three through Fifteen against Dowd, and the motion was granted. Thus, sentencing involved only Dowd's convictions on Counts One, Two, and Twenty-Nine.
The presentence investigation report ("PSI") summarized Dowd's criminal history, which included nine felony convictions since 1957. Because the PSI stated that at least three of these convictions qualified as violent felonies, the PSI recommended that Dowd be sentenced under the Armed Career Criminal Act ("ACCA"). See 18 U.S.C. § 924(e)(1).
Dowd's status as an armed career criminal affected the PSI's calculated guidelines range in two ways. First, although the PSI assigned Dowd six criminal history points for his prior convictions (qualifying him for criminal history category III), the PSI recommended that as an armed career criminal Dowd's criminal history category should be IV. See U.S.S.G. § 4B1.4(a) and (c)(3). Second, while the PSI calculated a combined offense level of 28 for Counts One and Twenty-Nine, the PSI recommended that as an armed career criminal Dowd's offense level should be raised to 33. See U.S.S.G. § 4B1.4(a) and (b)(3)(B).3
An offense level of 33 and criminal history category of IV yielded a guidelines range of 188 to 235 months' imprisonment for Counts One and Twenty-Nine.4 In addition, the ACCA subjected Dowd to a statutory mandatory minimum sentence of fifteen years (180 months) for the felon-in-possession charge in Count Twenty-Nine. See 18 U.S.C. § 924(e)(1).
As for Count Two, Dowd's § 924(c)(1)(A) conviction was for using a firearm during the commission of a crime of violence. 18 U.S.C. § 924(c)(1)(A). Section 924(c) provides for a seven-year sentence, consecutive to the sentence for the crime of violence itself, if the defendant brandished a firearm during the commission of the crime of violence. See 18 U.S.C. § 924(c)(1)(A)(ii); 18 U.S.C. § 924(c)(1)(D)(ii); United States v. Rahim, 431 F.3d 753, 757 (11th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1820, ___ L.Ed.2d ___ (2006).
At sentencing, Dowd objected that he was improperly classified and should not be sentenced under the ACCA. After overruling Dowd's objection, the district court sentenced Dowd to concurrent sentences of 221 months' imprisonment for Counts One and Twenty-Nine and a consecutive sentence of 84 months' imprisonment for Count Two, for a total of 305 months' imprisonment.
On appeal, Dowd argues that the district court abused its discretion in denying his motion to sever Count Twenty-Nine. Count Twenty-Nine charged Dowd with being a felon in possession of a firearm between the dates of August 23, 2004 and August 27, 2004. Because this period of time preceded the robbery of the post office on August 30, 2004, Dowd argues that this firearms charge was unrelated to the robbery charges, and that he was prejudiced because his prior felony convictions became admissible as elements of the firearms charge.
According to Federal Rule of Criminal Procedure 8(a), an indictment "may charge a defendant in separate counts with 2 or more offenses if the offenses charged... are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan." Fed. R.Crim.P. 8(a). "`Rule 8 is broadly construed in favor of the initial joinder.'" United States v. Dominguez, 226 F.3d 1235, 1238 (11th Cir.2000) (citation omitted). Moreover, "we will not reverse the denial of a severance motion absent a clear abuse of discretion resulting in compelling prejudice against which the district court offered no protection." United States v. Hersh, 297 F.3d 1233, 1244 (11th Cir.2002) (citing United States v. Badia, 827 F.2d...
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