U.S. v. Bolden

• Decision Date: 15 March 2007
• Docket Number: No. 05-5407.,05-5407.
• Citation: 479 F.3d 455
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony V. BOLDEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

479 F.3d 455

UNITED STATES of America, Plaintiff-Appellee, v. Anthony V. BOLDEN, Defendant-Appellant.

No. 05-5407.

United States Court of Appeals, Sixth Circuit.

Submitted: January 22, 2007.

Decided and Filed: March 15, 2007.

ON BRIEF: Robert C. Brooks, Memphis, Tennessee, for Appellant. Tony R. Arvin, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before SILER, MOORE, and ROGERS, Circuit Judges.

ROGERS, Circuit Judge.

On December 23, 2002, Darrell C. Chalmers and Carlos Goodwin robbed a Loomis Fargo armed car courier at the Wolfchase Galleria Mall in Memphis, Tennessee. Defendant-Appellant Anthony Bolden, a security guard at the mall, was the "inside man" in this robbery, providing Chalmers and Goodwin with security camera angles and Loomis Fargo procedures. Chalmers and Goodwin left the mall with $922,803.88 in stolen cash and checks. Police arrested Chalmers several weeks later, and Chalmers implicated Bolden as the mastermind of the robbery. After Bolden pleaded guilty, the district court sentenced Bolden to imprisonment for 205 months. Bolden appeals that sentence, challenging two offense-level enhancements that he received under the Sentencing Guidelines, the district court's failure to lower the offense level because of Bolden's purported acceptance of responsibility, and the reasonableness of the sentence under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm Bolden's sentence.

I. FACTS

At approximately 7:00 a.m. on the date of the robbery, Antonio Barton and Roy Mae Clark, employees of Loomis Fargo Courier & Company, made a routine stop at the Wolfchase Galleria Mall to pick up the weekend deposits. As Barton removed a canvas bag containing deposits from individual mall stores from a First Tennessee Bank safe, two men wearing ski masks (Chalmers and Goodwin) quickly approached. One of the robbers held a pistol and yelled at Barton, "Get down. Where's your gun?" The other robber, with a gun drawn, yelled at Barton, "Put your hands behind your head." Barton complied by moving to the floor. Barton later stated that, while on the floor, he thought that one robber pointed a gun at the back of his head as the robbers taped his hands together and took his 9mm semi-automatic pistol. When another security guard called Barton on his radio, one of the robbers asked, "She calling you? Is she calling you?" and then pulled the battery out of the radio. The robbers then took the canvas bag containing the deposits.

The security dispatcher dispatched another security guard, Darnell Ingram, to the deposit room to check on Barton. When Ingram saw Barton on the floor, Ingram ran down a hallway and came upon one of the robbers. The robber pointed a gun at Ingram and then threw the gun at him. Unarmed, Ingram retreated back down the hall. Chalmers told FBI agents that he saw a security guard, pointed his gun at the guard, and said, "It's not your business."

Frankie Cotton, a maintenance employee who worked at the mall, encountered one of the robbers as he exited an elevator at the mall's loading dock. The robber pointed a gun at Cotton and told him to "get back." Cotton ran inside and hid behind a brick wall. Cotton saw a second robber exit the mall and get into what he described as a gray, four-door Chrysler Fifth Avenue. The second robber drove the car back to the dock where the first robber threw a bag into the back seat and got into the car. The robbers then drove away from the mall.

Police later determined that the getaway car was a stolen gray Plymouth Diplomat. Police found the car abandoned and burned in Mississippi. According to First Tennessee Bank, a total of $922,803.88 was stolen, which included $704,161.13 in cash and $218,642.75 in checks.

On December 24, 2002, police received a tip that Chalmers and Goodwin were responsible for the robbery. Cotton then identified Chalmers in a photo lineup as one of the robbers.

On January 3, 2003, Bolden was questioned by the FBI about the robbery. Bolden, the lead security guard for the Wolfchase Galleria, said that he was not working on the day of the robbery because he had Mondays off, but was called in at 9:30 a.m. After first denying that he knew Chalmers or Goodwin, Bolden admitted that he grew up with Goodwin and used to "hang out" with Goodwin's brother. Agents asked Bolden whether he would take a polygraph examination, but Bolden said that he wanted to contact an attorney first. Bridgette Jack, a companion of Goodwin, identified a photograph of Bolden as Goodwin's friend "Tony."

On February 18, 2003, agents arrested Chalmers. Chalmers told agents that Bolden approached him and Goodwin at Goodwin's home with the idea of committing a robbery at the mall, something that Bolden had been planning for two years. According to Chalmers, Bolden suggested that the robbery take place around Christmas and on a Monday to maximize the amount of loot. Chalmers told agents that Bolden provided him and Goodwin with the date and times of the Loomis Fargo armored car pickups, information about security camera locations, ski masks, a revolver, gloves, bags, and tape. Chalmers also told agents that Bolden took him and Goodwin on a "dry run" through the mall where Bolden identified escape routes, locations to park so as not to be seen by security cameras, and the First Tennessee Bank deposit area.

Chalmers also told FBI agents that after the robbery, Goodwin called Bolden from his cell phone and that they then met Bolden at an apartment complex. Chalmers said that Bolden took the money out of the bag, placed it in the trunk of Bolden's car, and then drove to Goodwin's residence where each man took $5,000 and agreed to split the rest of the money at a later date. The next night, Chalmers, Goodwin, and two friends went back for the getaway car, drove it to Mississippi, and burned it.

On January 22, 2003, a grand jury indicted Chalmers and Goodwin. On April 23, 2003, a grand jury returned a superseding indictment against Bolden, Chalmers, and Goodwin. The indictment charged Bolden with three counts: interference with commerce by threats or violence, aiding and abetting, in violation of 18 U.S.C. § 1951 (Count 1); carrying/use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 2); and conspiracy to interfere with commerce by threats or violence, in violation of 18 U.S.C. § 1951 (Count 3). Bolden pleaded guilty to Count 1 and the Government agreed to drop Counts 2 and 3.

In a presentence report, the probation officer assigned to Bolden's case recommended, pursuant to the 2002 Sentencing Guidelines, a base offense level of 20, a criminal history category of I, and the following enhancements: 6 levels under U.S.S.G. § 2B3.1(b)(2)(B) because a firearm was "otherwise used"; 4 levels under § 2B3.1(b)(7)(E) because the loss was greater than $800,000 but less than $1.5 million; 2 levels under § 2B3.1(b)(1) for taking property of a financial institution; 2 levels under § 2B3.1(b)(4)(B) because a person was physically restrained to facilitate commission of the offense; 2 levels under § 3B1.1(c) because Bolden was an organizer, leader, manager, or supervisor of the robbery; and 2 levels under § 3B1.3 because Bolden abused a position of public or private trust. These enhancements would have resulted in an offense level of 38.

In a position paper filed with the district court, Bolden objected to each of these enhancements. Bolden also objected to the failure of the presentence report to include a recommendation of a 2- or 3-level reduction for acceptance of responsibility under § 3E1.1.

On March 4, 2005, the district court held a sentencing hearing. First, the district court concluded, as a matter of law, that "if the weapon was pointed, it was otherwise used for purposes of 2B3.1(b)(2)." Although Bolden disputed this legal conclusion, he admitted that a gun was pointed at a security guard during the robbery. The district court then held that a 6-level enhancement was appropriate because a firearm was "otherwise used" during the robbery.

Second, the district court applied a 4-level enhancement because the total loss exceeded $800,000, with the face value of the stolen checks included in that amount. Bolden argued that the checks were worth "no more than the value of the paper that they are written on" because the drawer of each check was still liable to the payee for the amount of each check. The district court rejected this reasoning:

The test isn't did you recover some money, either from the robber, or because . . . somebody knew the micker number . . . That's not the test. The test under the [application] note is the value of the property taken. It's not who lost money. It's not where the liability ultimately falls. What's the value of the property taken? The value of the property, among the parties who were negotiating the instruments, the drawer, if you will, the payee, the depository bank, . . . it's the face amount of the check. That's the amount the drawer wrote the check for. The amount the merchant accepted the check for. The amount that . . . would have been credited to the bank account of the merchant had the robber not intervened and removed the money. I believe that's a fair reading of what loss means under . . . Application Note 3 to 2B3.1.

Third, the district court rejected a 2-level reduction in Bolden's offense level for acceptance of responsibility under § 3E1.1(a). Although Bolden pleaded guilty, the district court concluded that a decrease in offense level for acceptance of responsibility was inappropriate because Bolden did not "come forward and at least assist[ ] in an effort to locate the" stolen cash and checks and because Bolden waited until only days before his trial date to plead guilty.

Finally, the district court made a number of decisions which have not been challenged on appeal. The court concluded that a 2-level increase under § 2B3.1(b)(1)...