U.S. v. Keene

• Decision Date: 30 November 2006
• Docket Number: No. 06-12076 Non-Argument Calendar.,06-12076 Non-Argument Calendar.
• Citation: 470 F.3d 1347
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billy Jack KEENE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1347

470 F.3d 1347

UNITED STATES of America, Plaintiff-Appellee, v. Billy Jack KEENE, Defendant-Appellant.

No. 06-12076 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

November 30, 2006.

Arthur Madden, III (Court-Appointed), Madden & Soto, Mobile, AL, for Keene.

David Andrew Sigler, Mobile, AL, for U.S.

Appeal from the United States District Court for the Southern District of Alabama.

Before ANDERSON, BIRCH and CARNES, Circuit Judges.

CARNES, Circuit Judge:

Between July 26 and August 4, 2005, Billy Jack Keene and his co-conspirators, Jesse Arnold and Jennifer Keene (Keene's sister and Arnold's girlfriend), robbed three banks in southern Alabama. As part of each heist, Keene or Jennifer would drive Arnold to and from the banks, while Arnold went inside, handed the teller a threatening note, and took the money from the shaken teller. The note Keene and Arnold jointly drafted for the first bank read, "Give me all the money, and no one will get hurt! Love, me." Keene, Arnold and Jennifer then made away with $5,205.00.

Keene and his co-conspirators were arrested soon after the last bank robbery following a tip from Arnold's mother to the FBI that her son was responsible for the string of robberies. Keene was indicted for three counts of taking money by force or intimidation from a financial institution insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C. § 2113(a). He pleaded guilty to all three counts without a plea agreement.

The probation office submitted a pre-sentence investigation report, which recommended that the district court enhance Keene's sentencing guideline base offense level by two pursuant to U.S.S.G. § 2B3.1(b)(2)(F). That guidelines provision specifies that if, in the course of a robbery, extortion or blackmail, "a threat of death was made," the defendant's base offense level must be "increase[d] by 2 levels." The theory was that the note Keene had helped draft, which was handed to the teller at the first bank, constituted a threat of death. Keene objected to any threat-of-death enhancement based on the note, arguing that while the note warned the teller that she would be "hurt" if she did not comply with Arnold's demands, it did not imply that Arnold would kill her. Keene's position is that the threat of violence alone is not enough for the threat-of-death enhancement.

The district court overruled Keene's objection and, based on the enhanced offense level and Keene's criminal history, arrived at an advisory guidelines range of 100 to 125 months imprisonment. Without the two-level threat-of-death enhancement the guidelines range would have been 84 to 105 months imprisonment. The district court sentenced Keene within the enhanced range, imposing a 120-month sentence, but in doing so the court indicated that even if the two-level enhancement had not been applied the court would have reached the same sentence under its 28 U.S.C. § 3553(a) authority to impose a reasonable sentence outside the guidelines range.

In his appeal to us, Keene raises the same issue that he did in the district court, arguing that the U.S.S.G. § 2B3.1(b)(2)(F) enhancement does not apply to threats of violence unless the robber brandished a weapon, stated or suggested he had one, or at least made a menacing gesture. The issue is one of first impression before our Court. From what we can tell, only one other circuit has decided the issue, and it held that the threat-of-death enhancement did in fact apply to circumstances similar to those we have here. See, e.g., United States v. Thomas, 327 F.3d 253, 254-55 (3d Cir.2003) (holding that a note given to bank teller by the defendant, which read, "Do exactly what this says, fill the bag with $100s, $50s and $20s, a dye pack will bring me back for your ass, do it now. Truely [sic] yours," constituted a threat of death warranting the enhancement). That may be the way the issue should be decided, but we need not decide it in this case.

The reason it is unnecessary for us to decide the enhancement issue is that a decision either way will not affect the outcome of this case. We know it will not because the district court told us that the enhancement made no difference to the sentence it imposed. After the court overruled Keene's objection and found what it believed to be the appropriate guideline range, taking into consideration the two-step enhancement, the court made clear that even if its interpretation and application of U.S.S.G. § 2B3.1(b)(2)(F) was wrong, it would still hand down the same 120-month sentence:

And I will say for the record that even if the guideline calculations are wrong, my application of the sentencing factors under Section 3553(a) would still compel the conclusion that a 10-year sentence [120 months] is reasonable and appropriate under all the factors that I considered.

(R:29:14). The court essentially accepted the invitation extended by the concurring opinion in United States v. Williams, 431 F.3d 767, 773 (11th Cir.2005) (Carnes, J., concurring), which is not surprising since the same district court judge was involved in both cases.

As the concurring opinion in Williams explained, "pointless reversals and unnecessary do-overs of sentence proceedings" can be avoided if district courts faced with disputed guidelines issues state that the guidelines advice that results from decision of those issues does not matter to the sentence imposed after the § 3553(a) factors are considered. Id. Likewise, if resolution of the guidelines issue does matter to the judge's ultimate sentencing decision, noting that it does "will help focus our attention on the issues that matter." Id. This approach is a legitimate one because, as the Williams concurring opinion explained, "[t]he Supreme Court and this Court have long recognized that it is not necessary to decide guidelines issues or remand cases for new sentence proceedings where the guidelines error, if any, did not affect the sentence." Id. (citations to four supporting decisions omitted).

Whether to decide and state on the record if the decision of a guidelines issue matters to the ultimate sentence imposed is up to the district court in each individual case. Id. at 775-76 ("It is the prerogative of sentencing courts to speak or remain silent about such matters....