U.S. v. Jones

• Decision Date: 30 April 1990
• Docket Number: No. 88-3377,88-3377
• Citation: 899 F.2d 1097
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott Evan JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1097

899 F.2d 1097

3 Fed.Sent.R. 35

UNITED STATES of America, Plaintiff-Appellee, v. Scott Evan JONES, Defendant-Appellant.

No. 88-3377.

United States Court of Appeals Eleventh Circuit.

April 30, 1990.

Neal L. Betancourt, Rotchford & Betancourt, P.A., Jacksonville, Fla., for defendant-appellant.

Thomas E. Morris, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, Chief Judge, EDMONDSON, Circuit Judge, and HILL, Senior Circuit Judge.

TJOFLAT, Chief Judge:

Scott Evan Jones, having been convicted of bank larceny, appeals from the sentence imposed by the United States District Court for the Middle District of Florida. We note at the outset that since Jones' offense occurred after November 1, 1987, his sentence is governed by The Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat. 1987 (codified, as amended, in scattered sections of 18 and 28 U.S.C.) and the guidelines promulgated thereunder.

Jones challenges the district court's factual findings on the basis of which the court determined the final offense level. He also asserts that the district court erred in failing to state its reasons for imposing the particular sentence. We find both contentions to be without merit and affirm.

I.

We state briefly the facts on which the jury verdict and the sentence were based. On November 13, 1987, Jones entered a bank in Jacksonville, Florida, approached a teller, and, with a jacket covering one hand, presented a note demanding money. After activating cameras and a silent alarm, the teller handed Jones approximately $2,568 in "bait money." Jones ran away from the bank, with at least two individuals following him. An FBI agent and a Jacksonville police officer joined the chase and pursued Jones for several blocks, shouting at Jones to halt and eventually firing one shot. The shot struck Jones, but he continued to flee until the two officers overtook him and, after a struggle of several minutes, subdued him with the help of a private security guard.

Jones was indicted for bank robbery under 18 U.S.C. Sec. 2113(a) (1988). He pled not guilty and went to trial, where his counsel, in opening statement, conceded that Jones was guilty of bank larceny. The jury was instructed both on bank robbery and on the lesser-included offense of bank larceny, see id. Sec. 2113(b). It returned a verdict of not guilty on the bank robbery charge but found him guilty of bank larceny.

For sentencing purposes, Jones conceded that he had two prior convictions, one for bank robbery and one for attempted bank robbery. The offenses underlying these convictions occurred on the same day. They involved two different banks in Orlando, Florida, and were approximately ninety minutes apart.

Under the guidelines, bank larceny carries a base offense level of 4. See Sentencing Guidelines Sec. 2B1.1(a) (1990). The district court determined that the proper level for Jones' particular offense was 15, after finding (1) that the taking was from the person of another, see id. Sec. 2B1.1, and (2) that the victim was particularly susceptible to the criminal conduct, see id. Sec. 3A1.1. ^* The court refused to deduct levels for acceptance of responsibility, finding (3) that Jones showed no remorse and that his argument at trial that he was guilty of only the lesser-included offense was a trial tactic rather than true acceptance of responsibility. Finally, the court placed Jones in Criminal History Category III, see Sentencing Guidelines Ch. 5, Pt. A sentencing tbl. and commentary, after finding (4) that the two prior convictions were for separate and independent offenses. Jones challenges these four findings. We examine each challenge in turn, mindful that we must accept the district court's factual findings unless they are clearly erroneous, see 18 U.S.C. Sec. 3742(d) (1988); United States v. Erves, 880 F.2d 376, 381 (11th Cir.1989).

A.

The sentencing guidelines group bank larceny with other theft offenses (which, like embezzlement, may involve no contact whatsoever with the victim) and provide that "[i]f the theft was from the person of another, increase [the offense level] by two...." See Sentencing Guidelines Sec. 2B1.1. Jones argues that the district court wrongly determined that his conduct involved such a taking because there was no intimidation or physical invasion of the teller's personal "space" and that therefore the enhancement provision does not apply.

This argument is without merit. Indeed, the commentary to section 2B1.1 specifically excludes intimidation as an enhancement factor for nonforcible theft crimes: "This guideline does not include an enhancement for thefts from the person by means of force or fear; such crimes are robberies." Rather, as the commentary explains, " '[f]rom the person of another' refers to property, taken without the use of force, that was being held by another person or was within arms' reach. Examples include pick-pocketing or non-forcible purse-snatching, such as the theft of a purse from a shopping cart." It is undisputed that Jones took the money from the bank teller's hands. The district court was therefore clearly correct in determining that Jones took the property from the person of another.

B.

Jones' next challenge is to the district court's finding that the bank teller was a particularly vulnerable victim under section 3A1.1, which provides for a two-level enhancement "[i]f the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that the victim was particularly susceptible to the criminal conduct." He argues that because the teller was surrounded by a protective teller's cage, cameras, alarms and trained security personnel, and because she herself was trained to deal with a thief's demands for money, she was actually less "vulnerable" than the average victim.

We think that Jones confuses vulnerability of the victim with susceptibility to the criminal conduct. Although a bank teller may risk less physical injury than the untrained and unprotected "man in the street," and although some would-be thieves are no doubt deterred by a bank's security measures, a teller is a very likely target of the criminal conduct that constitutes larceny. A bank teller is stationed at an area of the bank designed for public access; the teller's duty is to transact business with the bank's customers, and he or she cannot easily avoid contact with (or elude) those customers or other members of the public, including thieves. Furthermore, a teller is known to handle considerable amounts of money, making him or her a particularly promising victim. Accordingly, we agree with the district court's finding that the bank teller was particularly susceptible to the offense of larceny.

C.

Jones also challenges the district court's refusal to reduce his offense level for acceptance of responsibility, as provided in section 3E1.1. He bases his claim for a deduction upon his trial counsel's concession that Jones was guilty of bank larceny, the only offense for which he was actually convicted.

Section 3E1.1 directs the district court to reduce the offense level by two levels "[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct," Sentencing Guidelines Sec. 3E1.1(a) (emphasis added), but cautions that "[a] defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right," id. Sec. 3E1.1(c). Thus, even if Jones' concession of guilt is the equivalent of a guilty plea, Jones is still not entitled to an automatic deduction. Rather, the commentary refers the district court to a number of factors, including, but not limited to:

(a) voluntary termination or withdrawal from criminal conduct or associations;

(b) voluntary payment of restitution prior to adjudication of guilt;

(c) voluntary and truthful admission to authorities of involvement in the offense and related conduct;

(d) voluntary surrender to authorities promptly after commission of the offense;

(e) voluntary assistance to authorities in the recovery of the fruits and instrumentalities of the offense;

(f) voluntary resignation from the office or position held during the commission of the offense; and

(g) the timeliness of the defendant's conduct in manifesting the acceptance of responsibility.

Id. Sec. 3E1.1 commentary.

Jones cannot avail himself of these factors in support of his claim for a deduction. The district court noted at the sentencing hearing that Jones did not voluntarily terminate or withdraw from his criminal conduct nor did he surrender to authorities; rather, he took flight and was apprehended and subdued only after a several-block chase and a several-minute struggle with law enforcement officers. He made no admissions to law enforcement authorities; instead, he first refused to give any name at all, then gave a false name. He did not freely relinquish the demand note, an "instrumentality of the crime," which had to be pried from his fingers. The court also concluded that Jones' concession that he was guilty of the less serious offense of bank larceny was a "trial tactic." Given the overwhelming evidence against Jones, plus his two prior convictions for bank-related offenses, we do not regard as clearly erroneous the court's finding that the concession was strategic. See United States v. Spraggins, 868 F.2d 1541, 1543 (11th Cir.1989) (per curiam) (holding not clearly erroneous a district court's finding that a confession constituted an attempt to avoid lengthy sentence rather than an acceptance of responsibility). Even if we take Jones' concession as manifesting an acceptance of responsibility, rather than as a "trial tactic," that concession was not timely; it did not come until the trial, two and one-half months after the offense.

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