751 F.3d 1175 (10th Cir. 2014), 13-3207, United States v. Adams

Docket Nº:13-3207
Citation:751 F.3d 1175
Opinion Judge:HARTZ, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HENRY J. ADAMS, III, Defendant - Appellant
Attorney:David H. Moses, Case, Moses & Zimmerman, P.A., Wichita, Kansas, for Defendant - Appellant. David M. Lind, Assistant United States Attorney, (Barry R. Grissom, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff - Appellee.
Judge Panel:Before KELLY, MURPHY, and HARTZ, Circuit Judges.
Case Date:May 15, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1175

751 F.3d 1175 (10th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

HENRY J. ADAMS, III, Defendant - Appellant

No. 13-3207

United States Court of Appeals, Tenth Circuit

May 15, 2014

Petition for certiorari filed at, 08/12/2014

Page 1176

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. No. 6:12-CR-10232-EFM-3).

David H. Moses, Case, Moses & Zimmerman, P.A., Wichita, Kansas, for Defendant - Appellant.

David M. Lind, Assistant United States Attorney, (Barry R. Grissom, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff - Appellee.

Before KELLY, MURPHY, and HARTZ, Circuit Judges.

OPINION

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HARTZ, Circuit Judge.

Defendant Henry J. Adams III participated in a bank robbery on October 18, 2012. He was the lookout and recruited a friend to drive her car. After pleading guilty to the crime, he received an above-guidelines sentence of 140 months' imprisonment. On appeal he argues that he should have received an offense-level reduction for being a minor participant and that the district court abused its discretion in imposing an above-guidelines sentence. We hold (1) that he was not entitled to a minor-participant reduction because he helped plan the robbery and acted as the lookout and (2) that the district court did not abuse its discretion when it varied his sentence upward. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Defendant does not dispute the account of the offense in the presentence investigation report (PSR). We summarize the essentials.

Defendant told investigators that the idea to rob a bank came from Dlaney Nixon and Terry Revels. The two came to his house to discuss their plan. Defendant agreed to participate for a share of the money. He was assigned to be the lookout because he refused to enter the bank.

On the day of the robbery Defendant recruited a friend, Veronica Johnson, to drive him in her car, a blue Infiniti. All Johnson was told about the plan was that she should be ready " to do a 'hustle.'" R., Vol. 2 at 37. Defendant and Johnson met Nixon and Revels and followed their white Cadillac in the Infiniti. The three men planned to abandon the Cadillac after the robbery and complete their escape in the Infiniti. After a stop at Nixon's house, both cars drove to a branch of Intrust Bank. When Nixon and Revels entered the bank, they each wore a mask and carried a black bag. One of them, holding what appeared to be a handgun, yelled at the tellers to " get down, get down," while the

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other yelled " where's the money?" Id. at 35 (internal quotation marks omitted). They took about $3,500 in cash from the bank. Defendant and Johnson waited in the Infiniti during the robbery.

Nixon and Revels fled the bank in their Cadillac, with Defendant and Johnson close behind. Their escape was stalled, however, when the road was blocked by a passing train. During the delay Revels got out of the Cadillac and put a black bag in the Infiniti. When he returned to the Cadillac, Defendant left the Infiniti and joined him. After they resumed their drive they saw a police officer, and Nixon and Revels began dividing up the money in the remaining black bag. The police signaled the Cadillac to stop, but the men kept driving for a few miles. When they eventually stopped, the three men fled on foot in different directions.

Officers pursued and caught Nixon, who was taken into custody. The officers had observed him throw money away before they reached him. Revels broke into a house where he tied up and threatened a 15-year-old boy, but he was scared away when the boy's father returned. The father alerted the police, who found Revels hiding in a pickup truck and arrested him. He had a significant amount of money on his person. Defendant and Johnson were found in the Infiniti not far from the abandoned Cadillac. (How Defendant got back to the Infiniti is not explained in the briefs or record.) The officers who found them asked whether there were any weapons in the vehicle, and Defendant said that there was a gun. A search of the car uncovered a black bag under the driver's seat that contained clothing, money, and a realistic looking, but fake, handgun. All four suspects were taken to the county sheriff's office, where Defendant confessed to his role in the crime.

Defendant was indicted on one count of armed bank robbery under 18 U.S.C. § § 2113(a) and 2113(d). He pleaded guilty in the United States District Court for the District of Kansas on March 25, 2013. The PSR calculated that his total offense level was 22 and that he had a criminal-history score of 19, comfortably more than the score of 13 necessary to place him in criminal-history category VI, the highest category. The resulting guideline sentencing range was 84 to 105 months' imprisonment. The PSR did not recommend an upward variance or departure. Defendant's single objection to the PSR was that it did not give him a two-level reduction in offense level for being a minor participant.

On August 2, 2013, three days before the sentencing hearing, the district court provided written notice that it was considering an above-guidelines sentence in light of Defendant's criminal history. At the sentencing hearing Defendant argued that he was entitled to a reduction in offense level for being a minor participant and that he should receive a sentence at the low end of the guideline range. The court denied Defendant's request for a minor-participant reduction, reasoning that " [h]e took the role as a lookout, as opposed to going into the bank, but the law is clear that all participants are equally culpable for the events that they planned and knowingly participated in." Id., Vol. 3 at 14. It also imposed an above-guidelines sentence of 140 months' imprisonment followed by four years of supervised release.

The district court explained that an important reason for its sentence was Defendant's extensive criminal history--he had " 50 percent more points than are necessary to place him in a category VI," id. at 26, and he had " a long range of offenses that scored no points." Id. at 34. It observed that " one way to look at this history of criminal offenses is that it reveals an escalating level of offenses." Id. at 26. Further, it expressed concern that

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Defendant had repeatedly reoffended shortly after completing a sentence or while on probation. It concluded that Defendant's recidivist pattern indicated the need for a sentence that would deter further criminal conduct, promote respect for the law, and protect the public from further crimes, three of the sentencing factors set forth in 18 U.S.C. § 3553(a). The court also considered other factors under § 3553(a): it said that the nature of the offense was serious because it was an armed bank robbery; that the sentence should " provide [Defendant] with tools to promote and engage in a lawful lifestyle," including drug treatment, id. at 39; and that Defendant's sentence should reflect that he was as culpable for the bank robbery as Revels and Nixon. Defendant objected to the above-guidelines sentence.

In response to a question from Defendant's attorney about whether the district court had followed the recommended methodology for calculating a departure, the court explained:

My sentence is an upward departure, but it's also a variance based on the factors I previously stated that I think are appropriate to reflect that. . . . I think it's a sentence that reflects primarily the factors I have to consider under [18 U.S.C. § 3553(a)], so I view it as more of a variance ultimately than an upward departure in that nuance of criminal law.

Id. at 41. The day after the sentencing hearing, the court indicated in its written Statement of Reasons that it varied upward under 18 U.S.C. § § 3553(a)(1) and (a)(2) to reach its sentence. It did not indicate that it had departed.

II. DISCUSSION

We first address Defendant's argument that he was entitled to an offense-level reduction for being a minor participant in the robbery and then turn to his claim that the district court erred when it imposed an above-guidelines sentence.

A. Minor-Participant Sentence Reduction

The sentencing guidelines state that the district court should decrease the defendant's offense level by two if he was " a minor participant in any criminal activity." USSG § 3B1.2(b) (2013). Defendant argues that he was entitled to that decrease. But the reduction is intended only for " a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant." Id. § 3B1.2 cmt. n.3(A). And a defendant is not entitled to a minor-participant reduction merely because " he is the least culpable among several participants in a jointly undertaken criminal enterprise." United States v. Lockhart, 37 F.3d 1451, 1455 (10th Cir. 1994). The defendant bears the burden of proving by a preponderance of the evidence that he was a minor participant in the crime. See id. at 1455. " A trial court's determination as to whether a defendant was a . . . minor participant is a factual finding that we review only for clear error." Id.

Defendant argues that he is entitled to a minor-participant reduction because Nixon and Revels did most of the planning, he never entered the bank, and his recruitment of Johnson was " merely opportunistic." Aplt. Br. at 9 (italics and underlining omitted). But decisions of this court support the district court's finding that he was not a minor participant.

The most analogous precedential opinion is Lockhart . In that case the defendant had participated in a cocaine conspiracy by driving his codefendant to a bus station where the codefendant had arranged to pick up a bag of cocaine from an arriving passenger. See 37 F.3d at 1452-53. We held that the defendant was not a minor

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participant...

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