U.S. v. Moore, 92-4281

• Decision Date: 08 November 1993
• Docket Number: No. 92-4281,92-4281
• Citation: 6 F.3d 715
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Thomas MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 715

6 F.3d 715

UNITED STATES of America, Plaintiff-Appellee, v. James Thomas MOORE, Defendant-Appellant.

No. 92-4281.

United States Court of Appeals, Eleventh Circuit.

Nov. 8, 1993.

Sheryl Joyce Lowenthal, Coral Gables, FL, for defendant-appellant.

Linda Collins Hertz, Alice Ann Burns, Jeffrey H. Sloman, Asst. U.S. Attys., Miami, FL, for plaintiff-appellee.

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

Before COX and BIRCH, Circuit Judges, and SMITH ^*, Senior Circuit Judge.

BIRCH, Circuit Judge:

This appeal presents the issues of using prior unconvicted bank robberies and an alleged threat of death as the bases for increasing a Guidelines sentence. The district court respectively accorded an adjustment and an enhancement on these grounds. We AFFIRM on different grounds the district court's adjustment for the unconvicted robberies and REVERSE and REMAND for resentencing the enhancement for an express threat of death.

I. BACKGROUND

On April 23, 1991, defendant-appellant James Thomas Moore engaged a limousine service to drive him to a convenience store near the Great Western Bank, a federally insured bank in Hollywood, Florida. Moore entered the bank and gave one of the tellers a demand note stating "I HAVE A GUN AND NOTHING TO LOSE. 100s AND 50s NO DYE MONEY." When the teller advised Moore that she did not have bills in $100 denominations, he requested $10 bills. Moore, who was not armed, took $2,576 from the bank.

A witness in the area saw a man fitting Moore's description exit a white limousine and noted the license number. The witness saw Moore enter the bank, and, several minutes later, run from the bank, get into the limousine and depart. After entering the bank and learning that a robbery had occurred, the witness provided the Hollywood Police Department with a description of Moore and the white limousine. The limousine was stopped by the police, and Moore was taken into custody. The bank teller identified Moore as the person who had robbed the bank.

Following a one-count indictment for violation of 18 U.S.C. Sec. 2113(a), Moore entered into a plea agreement with the government. In addition to pleading guilty to the Great Western Bank robbery, Moore, in paragraph 2 of the plea agreement, also admitted robbing fourteen other federally insured institutions. In paragraph 3, the plea agreement further provided:

The parties agree that the bank robberies referred to in paragraph 2 shall be considered for purposes of sentencing only, that the amounts of money taken from each of the abovementioned institutions shall be used to calculate defendant's sentencing guidelines level and the United States shall be barred from future prosecutions of the defendant on any robbery referred to in paragraph 2.

R1-13-3.

At the plea proceedings, the federal public defender representing Moore explained to the court that Moore would plead guilty to the one-count indictment and that the unindicted robberies were to "be considered by the court for relevant conduct. There will not be a plea to them. [The] United States has promised and bound itself not to prosecute any other bank robberies. The reason for that is to keep him [Moore] from career offender problems." R2-2.

In arriving at Moore's offense level, the presentence report (PSR) includes the unindicted bank robberies ¹ as well as the robbery to which he pled guilty. The PSR purports to encompass the unindicted robberies based upon sections 3D1.4, combined offense level, and 1B1.3, relevant conduct, of the Sentencing Guidelines. PSR at 7, 30. The inclusion of the unindicted robberies resulted in a five-level increase in Moore's offense level. Additionally, Moore received a two-level increase pursuant to section 2B3.1(b)(2)(F) of the Sentencing Guidelines for an express threat of death for his statement to the teller that "I HAVE A GUN AND NOTHING TO LOSE." PSR at 8.

Different counsel for Moore filed objections to the PSR and moved for specific performance of the plea agreement. Supporting these objections and motion was an affidavit by Moore stating as follows:

The explanation of the plea agreement offered by my present counsel is the same explanation I was given by my public defender ... at the time of the execution of the plea agreement. I understood that as a result of the plea agreement which was executed, consideration of my fourteen prior robberies for the purposes of calculating the Guidelines level would be limited to the amounts of money involved in those robberies and that the number of robberies would not be used to calculate the Guidelines level.

R1-27-Affidavit of James T. Moore.

At the sentencing proceeding, Moore's counsel objected to the PSR because the probation officer had used the unindicted robberies to increase Moore's offense level by five levels. Moore's counsel stated that he considered this adjustment to be in contravention of paragraph 3 of the plea agreement. The attorney also objected to the two-level increase in Moore's offense level for an express threat of death. He explained that Moore's words and actions did not fit the examples given in the Sentencing Guidelines commentary for an increase for an express threat of death. The district judge overruled Moore's objections to the PSR and denied his motion to compel specific performance of the plea agreement:

The Court finds that the terms of the plea agreement are clear and unambiguous, and that pursuant to those terms the Court is authorized to consider the bank robberies referred to in paragraph two ... of the plea agreement for purposes of sentencing.

Accordingly, the Court finds that the total offense level is indeed 27, and will adopt that finding and conclusion as made by the Probation Office of this Court.

R3-12-13.

Moore was sentenced to 144 months of imprisonment, three years of supervised release, and a $50 assessment. After his sentence was pronounced, Moore's attorney stated that he reiterated all of his arguments relating to Moore's five-level and two-level increases in offense level. The district judge overruled those objections. Moore is incarcerated.

II. DISCUSSION

On appeal, Moore pursues his contentions that his sentence should not have been increased under the Sentencing Guidelines for the unindicted bank robberies and for an express threat of death in the robbery to which he pled guilty. A sentencing court's factual findings are reviewed under the clearly erroneous standard, while the court's legal interpretation of the Sentencing Guidelines is subject to de novo review. United States v. Odedina, 980 F.2d 705, 707 (11th Cir.1993) (per curiam). Since both issues on appeal involve the sentencing court's application and interpretation of the Sentencing Guidelines, our review is de novo.

A. Adjustment for Unconvicted Robberies

In the plea agreement, Moore admits taking money from fourteen federally insured institutions, robberies for which he was not indicted and, necessarily, not convicted. The parties agreed that these robberies would be used for sentencing only, that the amounts taken would be used to calculate Moore's Sentencing Guidelines level, and that the government would be precluded from prosecuting him for any of the unindicted robberies. The district judge adopted the PSR, wherein Moore's offense level was adjusted by five levels for the unindicted robberies. Moore complains that "[b]y specifying the amount of monies from the robberies in calculating the level, the parties excluded the robberies themselves as a basis for guidelines level calculation." Appellant's Reply Brief at 3.

Implicit in the challenged provision of the plea agreement is the parties' apparent assumption that the unconvicted robberies could be used in determining Moore's Guidelines sentence. Indeed, Moore contests only the way that the unconvicted robberies were used in his Guidelines sentence calculation: to increase his offense level by five levels. Our threshold inquiry, therefore, is to determine whether the parties were correct in their bargaining premise that the unconvicted robberies could be used in calculating Moore's sentence under the Guidelines.

Under the applicable Sentencing Guidelines, "[a] conviction by a plea of guilty or nolo contendere containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offense(s)." U.S.S.G Sec. 1B1.2(c) (1991) ². Further explaining this section, the accompanying application note states:

Subsections (c) and (d) address circumstances in which the provisions of Chapter Three, Part D (Multiple Counts) are to be applied although there may be only one count of conviction. Subsection (c) provides that in the case of a stipulation to the commission of additional offense(s), the guidelines are to be applied as if the defendant had been convicted of an additional count for each of the offenses stipulated. For example, if the defendant is convicted of one count of robbery but, as part of a plea agreement, admits to having committed two additional robberies, the guidelines are to be applied as if the defendant had been convicted of three counts of robbery.

U.S.S.G. Sec. 1B1.2, comment. (n.4) (emphasis added); seeStinson v. United States, --- U.S. ----, ----, 113 S.Ct. 1913, 1918, 123 L.Ed.2d 598 (1993) (holding that Guidelines commentary is binding on federal courts). When an appellant challenged his sentence for including ten uncharged crimes to which he had stipulated in his plea agreement, the Seventh Circuit, relying on section 1B1.2(c) and its commentary, determined that "[s]tipulated offenses are to be treated as offenses of conviction." United States v. Eske, 925 F.2d 205, 207 (7th Cir.1991); seeUnited States v. Collar, 904 F.2d 441, 442-43 (8th Cir.1990) (where the appellant pleaded guilty to four robberies and stipulated to two additional robberies, the Eighth...