U.S. v. Donaby
| Decision Date | 21 November 2003 |
| Docket Number | No. 02-3144.,02-3144. |
| Citation | 349 F.3d 1046 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Antonio DONABY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard H. Lloyd (argued), Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.
Paul M. Storment (argued), III, Belleville, IL, Neal A. Connors, Grueninger & Connors, Belleville, IL, for Defendant-Appellant.
Before KANNE, ROVNER, and DIANE P. WOOD, Circuit Judges.
On January 28, 2002, Antonio Donaby was found guilty of bank robbery, in violation of 18 U.S.C. § 2113, and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924. Donaby does not challenge the convictions.1 Rather, he raises two issues concerning his sentence. First, Donaby asserts that it was improper for the district court to include the repair cost of the stolen getaway vehicle used in the robbery to increase the loss assessed under the Sentencing Guidelines, thereby increasing his relevant offense level. Second, Donaby argues that the lower court erred in awarding 18 U.S.C. § 3663A restitution for damage to a police car involved in the chase that followed the robbery. We affirm the district court on both rulings.
Antonio Donaby participated in the planning and execution of a bank robbery. Donaby and a friend, Joe Wingate, visited the First Federal Savings Bank of Mascoutah (Illinois), New Baden branch, on June 12, 2001. Each took a turn inspecting the interior of the bank. While returning to their homes in East St. Louis, Wingate agreed to take part in the robbery as a driver. Donaby and Wingate recruited two more friends to participate, Matthew Thomas and Freddie Bledsoe.
The first attempt to rob the bank was aborted as the group of men arrived too late in the morning to avoid customers. Donaby and the rest agreed to postpone the robbery for one week. In the interim, they took several steps to improve their chances of success. On June 20, the men stole a white mini-van from Westport Dodge in St. Louis, Missouri ("Westport"). This van was used as the primary getaway vehicle during the robbery. On the evening of June 24, the men gathered at the residence of Joe Wingate to review the plan and to make final arrangements. They also recruited Joe's brother, Tyrone Wingate, to serve as a third driver so that several vehicle transfers could be used to throw a potential police pursuit off course.
Donaby and his friends arrived at the bank on June 25, at 8:50 a.m. Only two men entered the bank. Donaby, dressed as a masked construction worker, and Thomas, dressed in women's clothing brandished weapons and screamed vulgarities at the bank employees. The frightened employees cooperated. By 9:00 a.m., Donaby and Thomas exited the bank with $47,965.
The duo jumped into the stolen white van that was parked in front of the bank. Off-duty Police Chief Jim Arrington, who happened to enter the bank as the robbery was ending, immediately pursued the white van in what quickly became a high-speed chase. Arrington lost sight of the van when Tyrone Wingate, driving one of the getaway cars, ran interference for the van by cutting Arrington off and slowing down on a narrow two-lane road. Officer Joshua Donovan, of the Village of Shiloh Police Department ("Shiloh"), responded to an emergency broadcast identifying the white van and spotted the fleeing van within minutes.
The speed of the pursuit exceeded one hundred miles per hour, eventually reaching approximately one hundred and twenty miles per hour on Interstate 64. Through traffic and construction zones in southern Illinois cities, the van maintained speeds in excess of sixty miles per hour. While Officer Donovan and other police officers continued the chase, the Illinois State Police deployed "stop sticks"2 to bring the chase to an end. This tactic proved successful, and the van came to a halt; the police apprehended Donaby as he fled on foot.
The authorities returned the damaged white van to Westport. Westport submitted an itemized list of necessary repairs in the amount of $4689.85 to their insurer, that, in addition to the $500 deductible, represented the extent of damage to the van. The van itself was valued at $34,445. Shiloh suffered $526.14 in damages to the vehicle driven by Officer Donovan in his pursuit of the white van.
At trial, the government presented testimony from the bank employees, the law enforcement agents involved in the pursuit and investigation, and several of the men involved in the robbery. Based on this evidence, a jury convicted Donaby of bank robbery and use of a firearm during a crime of violence.
At sentencing, the district court relied on the presentence investigation report ("PSR") for the findings that the cost to repair the van was $5189.85 and the amount of money stolen from the bank was $47,965. The lower court added these two figures in a calculation made under the Sentencing Guidelines to reach a total loss exceeding the threshold mark of $50,000, thereby affecting Donaby's sentencing offense level. The lower court again relied on the PSR to award 18 U.S.C. § 3663A restitution payments to the bank, the bank's insurer, the bank's manager, and Shiloh in the amount of $526.14 for the damage to their vehicle.
Two issues of law are before this Court. First, Donaby asserts that it is improper under the Sentencing Guidelines to include the stolen vehicle damage in calculating "loss" to increase his sentencing level. Donaby asks for a reversal of his sentencing level determination, and a remand to the district court for a reassessment of the appropriate sentence.3 Second, Donaby argues that it is beyond the statutory authority of the federal courts to award restitution for damage that occurred after the completion of the required elements of the crime for which he was convicted. He asks for a reversal of the restitution award to Shiloh.
Questions of law are reviewed de novo. United States v. Martinez-Carillo, 250 F.3d 1101, 1103 (7th Cir.2001). Since these issues were not raised at the sentencing hearing, however, the plain error standard applies. United States v. McIntosh, 198 F.3d 995, 1003 (7th Cir.2000); United States v. Maggi, 44 F.3d 478, 484 (7th Cir.1995). Under this standard, we must determine "(1) whether there was error at all, (2) if so, whether it was plain, (3) whether the error affected [Donaby's] substantial rights, and (4) whether it seriously affected the fairness, integrity, or public reputation of the proceedings." United States v. Robinson, 250 F.3d 527, 529 (7th Cir.2001). Because the trial court properly applied the law on both issues, there was no error, and it is only necessary to pursue the first inquiry of the plain error test.
In conjunction with a criminal history assessment, the offense level sets the acceptable range of punishment for any particular federal crime under the United States Sentencing Guidelines. As the offense level rises, so too does the range of appropriate punishment for a convicted defendant. A robbery conviction entails the assignment of a "Base Offense Level" of twenty under the Guidelines. U.S.S.G. § 2B3.1(a). For robbery, there are seven "Specific Offense Characteristics," each of which adds offense levels to the base number of twenty. U.S.S.G. § 2B3.1. Although Donaby's base offense level was increased because of several offense characteristics, Donaby only challenges the application of the specific offense characteristic involving the amount of "loss" attributed to the robbery. That offense characteristic reads:
(7) If the loss exceeded $10,000, increase the offense level as follows:
Loss (Apply the Greatest): Increase in Level
(A) $10,000 or less............... no increase
(B) More than $10,000................... Add 1
(C) More than $50,000................... Add 2
U.S.S.G. § 2B3.1(b)(7) (emphasis in original). In the "Application Notes" to U.S.S.G. § 2B3.1, "loss" is defined as "the value of the property taken, damaged, or destroyed." U.S.S.G. § 2B3.1, cmt. n. 3 (2003).
The question presented by Donaby is whether the damage suffered by a stolen getaway car is properly considered "loss" under § 2B3.1(b)(7). If the damage to the white van is included as "loss," Donaby's offense level was properly increased by two under § 2B3.1(b)(7) because the sum of the cash stolen from the bank and the damage to the stolen van exceeded $50,000. If the damage to the van should not be included, then the lower court should only have increased the offense level by one under § 2B3.1(b)(7).
Although this is a question of first impression in the Seventh Circuit, an apparent circuit split has arisen. The Eighth Circuit allows the value of a stolen vehicle used during a robbery to be included as "loss." United States v. Powell, 283 F.3d 946 (8th Cir.2002). The First Circuit maintains a distinction between carjackings that occur during the robbery itself and vehicles stolen in preparation for a robbery; it is acceptable to include the value of carjacked vehicles as "loss," United States v. Cruz-Santiago, 12 F.3d 1 (1st Cir.1993), but not vehicles stolen in preparation for and used during the robbery. United States v. Austin, 239 F.3d 1 (1st Cir.2001).
In Powell, the defendant and an accomplice fled the scene of a bank robbery in a stolen sports utility vehicle. 283 F.3d at 947. In their haste, the bank robbers "ran a red light at high-speed, collided with an occupied van, and continued on down the wrong side of the road before crashing into a telephone pole." Id. Relying on the text of § 2B3.1(b)(7) and the accompanying Application Notes (quoted above), the Eighth Circuit reasoned that the vehicle had been "taken" and "damaged" in the plain sense of those terms. Id. The Powell court also noted that specific offense characteristics are given general explanation in...
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