U.S. v. Esteppe

• Decision Date: 23 April 2007
• Docket Number: No. 05-6610.,05-6610.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tracey Scott ESTEPPE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

483 F.3d 447

UNITED STATES of America, Plaintiff-Appellee, v. Tracey Scott ESTEPPE, Defendant-Appellant.

No. 05-6610.

United States Court of Appeals, Sixth Circuit.

Submitted: February 23, 2007.

Decided and Filed: April 23, 2007.

ON BRIEF: Robert D. Little, Law Office of Robert Little, Maplewood, New Jersey, for Appellant. John Patrick Grant, Assistant United States Attorney, Lexington, Kentucky, for Appellee.

Before SILER and GILMAN, Circuit Judges; ZATKOFF, District Judge.^*

GILMAN, Circuit Judge.

Tracey Scott Esteppe pled guilty to a charge of armed bank robbery in May of 2005. Based on his prior convictions for escaping from prison and for burglary, Esteppe's Presentence Report (PSR) concluded that he qualified as a career offender under the Sentencing Guidelines. Esteppe objected to the career-offender sentence enhancement on the ground that his prior escape and burglaries were all related and therefore constituted just one predicate offense. The district court disagreed and sentenced Esteppe to 188 months of imprisonment, the low end of Esteppe's enhanced Sentencing Guidelines range. On appeal, Esteppe reasserts his objection to the career-offender enhancement. He also argues that his sentence was unreasonable because the district court did not properly analyze all of the factors set forth in 18 U.S.C. § 3553(a). For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

In January of 2005, Esteppe entered the Heritage Bank in Erlanger, Kentucky brandishing a pellet gun. He ordered bank employees to fill a bag with money, and emerged from the bank with $18,000 in cash. Shortly thereafter, Esteppe was arrested and confessed to the crime. Four months later, he pled guilty and was sentenced as a career offender under the United States Sentencing Guidelines. The primary issue raised on appeal is not Esteppe's bank-robbery offense, but rather the relatedness of his prior convictions for the purpose of the Guidelines enhancement for career offenders. We thus review the facts surrounding Esteppe's prior convictions for escaping from prison and burglarizing homes in 1993.

Esteppe was being held in custody in Clark County, Kentucky in 1993, pending his indictment for a series of break-ins that he had committed. But he was temporarily released in early July of that year due to the state's failure to timely indict him. Soon after his release, Esteppe found himself sitting in his mother's car, parked within sight of the Clark County jail. Fearing his impending rearrest and the significant prison time that he might face, Esteppe allegedly began to formulate a plan for breaking out of the facility if he were to be reincarcerated.

Esteppe testified that he devised a rather elaborate scheme that included not simply breaking out of jail, but also a subsequent sequence of events designed to further his escape and transition into a new life under a different identity. He allegedly intended to break out of prison, discard his prison uniform, and steal a vehicle from somewhere in his girlfriend's nearby neighborhood. Esteppe would then travel to his friend Cody Dunn's residence in Lexington, Kentucky.

According to Esteppe, he met with Dunn while on temporary release to discuss this plan and to seek out a former friend of Dunn's from prison named Kenny Amick in Pikeville, Kentucky. Esteppe believed that Amick could supply him with counterfeit identification. But Esteppe subsequently discovered that Amick had moved to South Carolina. Amick's sister Tanya, however, remained in Pikeville. Esteppe's plan thus allegedly called for him to rendezvous with Tanya and then travel with her to South Carolina in search of Kenny Amick. Upon reaching South Carolina, Esteppe explained, he would need to steal another vehicle to use so that "nobody [would] know that I was from Kentucky" and so that he could offer the first stolen vehicle to Kenny. If Kenny would accept the stolen car, Esteppe reasoned, then he "could trust [Kenny] 100%." The final element of Esteppe's plan called for him to obtain counterfeit identification from Kenny and assume a new identity.

By Esteppe's own account, his actual escape conformed to this plan only in part. Soon after his temporary release, Esteppe was rearrested and imprisoned on July 5, 1993. He escaped from the Clark County jail the following morning, after which he stripped off his prison uniform and, clad only in his underwear, proceeded stealthily to his girlfriend's neighborhood. Esteppe hid there until dark, at which point he stole a car in which the owner had left the key. He next proceeded to Lexington to visit with Dunn, who provided him with new clothes and some food.

From Lexington, Esteppe headed to Pikeville to meet Tanya. The car he had stolen, however, overheated and began to break down near Mt. Sterling, Kentucky. In need of a new vehicle, Esteppe decided to burglarize a nearby house where he had noticed that a purse—presumably containing car keys—was sitting on the kitchen table. On the evening of July 9, 1993, Esteppe entered the home, grabbed the purse that in fact contained the owners' car keys, and drove off in their sedan.

Esteppe eventually met up with Tanya in Pikeville, and the pair proceeded approximately 200 miles south to Greenville South Carolina in search of Kenny. Upon arriving in Greenville, Esteppe stopped to use the bathroom at a doughnut shop. He emerged to discover that Tanya and the vehicle were gone. Again stranded, Esteppe decided to undertake another burglary in the hope of finding the keys to a vehicle parked on the premises. He broke into a home in Greenville on the evening of July 11, 1993 and once more succeeded in finding a purse that contained the owner's car keys.

Now in possession of a third stolen vehicle, Esteppe decided to give up the search for Kenny in South Carolina and instead returned to Kentucky in search of Tanya and an explanation for her abrupt disappearance. He was ultimately taken back into custody in Pikeville, Kentucky before he was able to relocate Tanya.

B. Procedural background

Esteppe was charged for his 1993 offenses in three separate cases. First, he pled guilty in Clark County, Kentucky to charges relating to the escape and theft that occurred there. He then entered a plea of guilty in Montgomery County, Kentucky for the Mt. Sterling burglary. Finally, he pled guilty to the burglary he committed in Greenville County, South Carolina. According to the PSR, Esteppe was ultimately released on parole in October of 2003.

Regarding the offense in the present appeal, Esteppe pled guilty to armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), in May of 2005. The PSR calculated his Sentencing Guidelines range to be from 188 to 235 months based on his Criminal History Category of VI and his Offense Level of 31. This Offense Level included an eight-point enhancement based on Esteppe's designation as a career offender pursuant to U.S. S.G. § 4B1.1. The enhancement applied because of Esteppe's prior felony convictions for crimes of violence stemming from the 1993 escape and burglaries described above.

Esteppe objected to the application of the career-offender enhancement. He asserted that his escape and subsequent crimes were all related and therefore amounted, at most, to just one predicate crime of violence under the Guidelines. The district court overruled Esteppe's objection, concluding that the 1993 crimes were unrelated and that application of the enhancement was therefore proper. Ultimately, the court sentenced Esteppe to 188 months in prison. Esteppe filed this timely appeal.

II. ANALYSIS

A. Standard of review

We will not set aside the district court's determination that Esteppe's prior convictions were unrelated unless we conclude that the decision was clearly erroneous. See United States v. Carson, 469 F.3d 528, 530 (6th Cir.2006). A district court's finding is clearly erroneous "when, although there may be some evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Clay, 346 F.3d 173, 178 (6th Cir.2003). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Id.

Esteppe also challenges the procedural reasonableness of his sentence under 18 U.S.C. § 3553(a). A sentence will be deemed procedurally unreasonable if "the district judge fails to `consider' the applicable Guidelines range or neglects to `consider' the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration." United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005) (footnote omitted).

B. Relatedness of the 1993 convictions

Esteppe argues that the U.S.S.G. § 4B1.1 career-offender enhancement is inapplicable to him. Section 4B 1.1 provides for specific Offense Level increases, as well as an increase to Criminal History Category VI if the defendant meets certain criteria that qualify him as a "career offender." The career-offender enhancement applies if

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;

(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and

(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a).

Esteppe concedes that his armed-bank-robbery conviction in the present case satisfies the first and second of the above enhancement criteria. But he argues that his criminal history does not meet the third requirement because the three prior offenses identified in the PSR as his predicate crimes of violence are all related and thus should count as only one offense for the...