U.S. v. Coleman

• Decision Date: 22 November 1993
• Docket Number: No. 92-5146,92-5146
• Citation: 9 F.3d 1480
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry Craig COLEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1480

9 F.3d 1480

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Craig COLEMAN, Defendant-Appellant.

No. 92-5146.

United States Court of Appeals, Tenth Circuit.

Nov. 22, 1993.

Thomas Scott Woodward, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., Tulsa, OK William E. Hughes, Tulsa, OK, for defendant-appellant.

with him on the briefs), Tulsa, OK, for plaintiff-appellee.

Before ANDERSON, KELLY and ENGEL, ^* Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Jerry Craig Coleman appeals his conviction and sentence on charges of armed robbery of a bank, in violation of 18 U.S.C. § 2113(d), and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1). He contends that: (1) there was insufficient evidence of his participation in the bank robbery; (2) he did not "use" a gun, as "use" is construed under §§ 2113(d) and 924(c)(1), when he attempted to grab a bank security guard's gun, struggled for its possession with the guard, but never wrestled the gun away; (3) he should not have been sentenced as a career offender under United States Sentencing Guideline (U.S.S.G.) 4B1.1; (4) his criminal history calculation should not have included three points for a 1971 conviction; (5) the district court abused its discretion in ordering him to pay restitution; and (6) he argues pro se that he was denied effective assistance of counsel. We affirm.

BACKGROUND

Coleman and a friend, Brian Edmond Turner, were indicted on charges of armed bank robbery and use of a firearm in a crime of violence. R. Vol. I, at 15. Turner pled guilty. Coleman went to trial and a jury convicted him on both counts. Id. at 43. The district court sentenced Coleman under the Sentencing Guidelines to consecutive prison terms of 262 months and 60 months for the § 2113(d) and § 924(c)(1) violations, respectively. Id. at 58. The court also ordered him to pay restitution to the Stillwater National Bank (in Tulsa, Oklahoma) in the amount of $5,528, jointly and severally with Turner. Id. Coleman was not fined because of his inability to pay. He now appeals.

DISCUSSION

I.

Coleman first contends that there was insufficient evidence to support his conviction for armed bank robbery. We review the record de novo for sufficiency of the evidence. United States v. Grimes, 967 F.2d 1468, 1472 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992). Viewing the evidence and reasonable inferences that can be drawn from it in the light most favorable to the government, Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979), we summarize the facts.

On the morning of December 5, 1991, a security guard sitting behind a desk inside the federally insured Stillwater National Bank observed two persons, Coleman and Turner, approaching the entrance of the bank "faster than a walk but slower than a trot." R. Vol. III, at 85. The security guard, Harry W. Hunt, said "[i]t struck me as suspicious to see them moving that fast." Id. Hunt unholstered his service revolver, a .357 magnum, placed it on the credenza behind his desk, and kept one hand on it. Id. at 86.

Coleman and Turner entered the bank, stopped together momentarily, then proceeded in different directions. Id. Turner went directly to a teller's window, where he told the teller he had a gun (though he did not) and threatened to kill her. When she backed away, he reached across the counter, removed money from the cash drawer (including "bait" money triggering a camera that recorded Turner's exit and Coleman's scuffle), and fled the bank. Id. at 39-40, 62, 80.

Meanwhile, as Turner confronted the teller, Coleman walked directly to the civilian-clothed security guard, Hunt. He walked around to the side of Hunt's desk, which Hunt said was unusual. Id. at 87-88. Coleman mentioned something about the cleaning or maintenance service, and then requested a loan. Id. at 87. Hunt testified, "I had just finished saying he would have to see someone else at the bank [for a loan], [when] I saw him look across the desk and see my gun, and ... he did a double-take and then another one, just like that, and immediately on doing that, he dove across me and got his hand on my hand which was on the gun." Id. at 88-89.

Hunt testified that he and Coleman wrestled for control of the gun behind his desk, "and [Coleman] said, 'let go of the gun, let go of the gun, or when I get it I'm going to kill. I'm going to kill you with your own [ ] gun.' " Id. at 89-90. Another bank employee who witnessed the struggle testified that she heard someone other than Hunt say "kill" during the struggle and that she was frightened. Id. at 65, 70. The two men continued to grapple around the desk, across the bank lobby, and out the front doors, where Hunt apprehended Coleman. Id. at 93.

Detective Charlie Folks, who interviewed Coleman after he had been arrested, testified that Coleman said, "I lost my job today and I went out and done something crazy." Id. at 115. Two days before the robbery, Coleman had been dismissed from his job as a maintenance mechanic for a Tulsa hospital. Id. at 9.

Evidence, including reasonable inferences to be drawn therefrom, is sufficient to sustain a conviction if, viewed in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Grimes, 967 F.2d at 1472. Coleman contends that the government failed to prove that he knew of Turner's plan to rob the bank, and that his "scuffle with the security guard ... interrupted the possibility there would ever develop sufficient circumstantial evidence of [his] culpable participation." Appellant's Brief, at 15. To the contrary, we find Coleman's struggle for the security guard's gun precisely the circumstantial evidence from which a reasonable jury could infer Coleman's culpable intent beyond a reasonable doubt. We find the evidence, viewed favorably to the verdict, sufficient and reject this contention.

II.

Coleman next contends that he did not, as a matter of law, "use" a weapon, as must be proven under both 18 U.S.C. §§ 2113(d) and 924(c)(1). ¹ There was no evidence that Turner had a weapon. Thus, the government prevailed at trial on the theory that Coleman "used" the security guard's gun by lunging for it and struggling to control it. Coleman argues that he never had enough control or possession of the weapon to "use" it.

The determination that someone has "used" a weapon in violation of § 2113(d) and § 924(c)(1) is a legal conclusion that we review de novo. United States v. Young, 952 F.2d 1252, 1255 (10th Cir.1991). The evidence presented to the jury was that Coleman tried to get Hunt's weapon from him but did not fully succeed. Hunt testified that "[t]here was no doubt in my mind had I lost the gun he would have killed me with my own gun.... I wasn't in control of it. We were jointly in control of it. I was trying to get control of it, but I could not. I could not get my hand around him to pull his hand away enough to get the gun." R. Vol. III, at 93. Coleman would have us infer from Hunt's testimony and the photographs of their struggle that not only did he fall short of disarming Hunt, he also failed to acquire any more dominion and control over the gun than Hunt (i.e., control was, at most, in equipoise). Appellant's Reply Brief at 7. Even viewing the facts as Coleman suggests, his argument has no merit.

The "use of a dangerous weapon or device" necessary to commit an "armed" robbery under § 2113(d) requires that the defendant,

created an apparently dangerous situation, (b) intended to intimidate his victim to a degree greater than mere use of language, (c) which does, in fact, place his victim in reasonable expectation of death or serious bodily injury.

United States v. Spedalieri, 910 F.2d 707, 710 (10th Cir.1990); United States v. Crouthers, 669 F.2d 635, 639 (10th Cir.1982). Under this test, for example, an "armed" bank robbery can be committed with a fake or unloaded gun. This is because the presence of even an unloaded gun increases the danger of an immediate violent response, McLaughlin v. United States, 476 U.S. 16, 17-18, 106 S.Ct. 1677, 1678, 90 L.Ed.2d 15 (1986), and because it is unreasonable to expect the robbery victim to risk life to positively ensure that the assailant has a gun that is loaded. Crouthers, 669 F.2d at 639. For identical reasons, "armed" robbery of a bank does not require that the assailant have a precise, measurable amount of physical dominion or control over a weapon. The distinction between "use" of a weapon under § 2113(d) and something less than "use" turns on whether the victims reasonably expected that the assailant could use the weapon to inflict upon them death or serious bodily injury, not on the assailant's degree of control of the weapon. These are not unrelated, of course. However, just as we do not expect victims to predict whether a gun is loaded, we do not expect them to predict who might win a struggle for a weapon. Thus, we hold without difficulty that Coleman's struggle for the security guard's gun and his contemporaneous threats that he would kill the guard if he was not given the gun were sufficient to support the conviction for "armed" robbery under § 2113(d).

Likewise, Coleman's control of the gun, even though it fell short of enabling him to point and fire, was sufficient for purposes of § 924(c)(1). We have noted that " 'the evident purpose of [ § 924(c) ] was to impose more severe sanctions where firearms facilitated, or had the potential of facilitating, the commission of a felony.' " United States v. Sullivan, 919 F.2d 1403, 1432 (10th Cir.1990) (quoting United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985) (opinion of Kennedy, J.)). Thus,

[i]f the firearm is within the possession or control of a person who commits an underlying crime as defined by the statute, and the circumstances of the case show that the firearm...