U.S. v. Webb, 96-9176

• Decision Date: 30 April 1998
• Docket Number: No. 96-9176,96-9176
• Citation: 139 F.3d 1390
• Parties: 11 Fla. L. Weekly Fed. C 1302 UNITED STATES of America, Plaintiff-Appellee, v. Anthony Wayne WEBB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1390

139 F.3d 1390

11 Fla. L. Weekly Fed. C 1302

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Wayne WEBB, Defendant-Appellant.

No. 96-9176.

United States Court of Appeals, Eleventh Circuit.

April 30, 1998.

Paul Stephen Kish, Fed. Defender Program, Inc., Atlanta, GA, for Defendant-Appellant.

Russell Vineyard, Asst. U.S. Atty., Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, BIRCH and MARCUS ^*, Circuit Judges.

BIRCH, Circuit Judge:

Anthony Wayne Webb appeals the 262-month sentence he received following his conviction for attempted robbery of mail matter, 18 U.S.C. § 2114(a). In vacating Webb's sentence and remanding this case for resentencing, we decide, in an issue of first impression in this circuit, that a district court has the authority under the Sentencing Guidelines to exercise its discretion to grant a request for downward departure with respect to a defendant who has been classified as a career offender.

I. BACKGROUND

For the purpose of resolving the issues raised in the appeal, the facts underlying Webb's conviction are undisputed: On January 16, 1996, Webb entered a United States Post Office and presented a note to a postal clerk. According to Webb's post-arrest statement, the note indicated that this was a robbery and that the clerk should give him all the money reserved for money orders. See Exh. 3. Testimony at trial reveals that the postal worker screamed and ran away after reading the note. Webb subsequently ran out of the post office and was apprehended and arrested by two postal inspectors within minutes of the attempted robbery. At the time this offense was committed, Webb was fifty-one years old and had spent much of his life committed to mental institutions or in prison.

It is also undisputed that Webb had robbed the same post office in 1985; Webb pled guilty and was sentenced to ninety-six months in custody for this offense. After his release on parole in 1991, Webb returned to the same post office and presented to two postal clerks a note that was, in essence, identical to the one used in the instant case. Following the 1991 incident, Webb was convicted of forcibly intimidating postal service employees, in violation of 18 U.S.C. § 111, and sentenced to thirty months' imprisonment.

The Presentence Investigation Report (PSR) prepared in connection with this case recommended that Webb be sentenced as a career offender pursuant to U.S.S.G. § 4B1.1. ¹ The PSR specifically referenced the 1985 and 1991 post office incidents, discussed above, as crimes of violence that justified Webb's qualification as a career offender. Both prior to and during the sentencing proceeding, Webb objected to the enhancement of his offense level based on his categorization as a career offender and argued that his prior conviction for intimidating a postal worker did not constitute a crime of violence under the Sentencing Guidelines. The government responded that the statutory offense for which Webb had been convicted in 1991 involved force as an element; alternately, the government posited that the conduct underlying the federal charge, attempted robbery, necessarily implicated the use or attempted use of force. The district court adopted the government's position and overruled Webb's objection with respect to the career offender enhancement.

Webb then moved for a downward departure in his sentence and asked that the court reduce his sentence to approximately the same level as it would have been without the career offender enhancement. In support of his request, Webb primarily relied on his arguments with respect to the enhancement of his sentence as a career offender and noted that he consistently had sought through criminal conduct only to be reinstitutionalized. The government, in response, averred that a downward departure--particularly to the degree sought by the defendant--was not warranted in this case. Consistent with an implicit denial of Webb's motion for downward departure, the court then imposed sentence. Immediately thereafter, Webb's counsel stated: "Judge, we do object to the sentence imposed for the reasons stated earlier, as well as the court's failure to engage in a downward departure because it agreed it couldn't." R5-18. In response to this assertion, the court stated: "Let the record so reflect. Thank you." Id. After a short recess, the court reconvened because the sentencing judge had neglected to inform Webb of his right to appeal. At that time, the following exchange took place:

The Court: Let the record further reflect that the court did not grant the request Mr. Kish sought, that I depart from the guidelines and impose a lesser sentence, because that would be contrary to my initial ruling earlier, and I overrule you on the guideline issue.

However, I do feel that the guidelines in this situation are very harsh, and I wish we didn't have the guideline. Maybe some provision later on may provide the court with a situation wherein the court, if there are compelling reasons for doing so, can depart, based on the court's own assessment of what the sentence ought to be. But in this case, I did not find that, and for that reason I will let it stand.

Mr. Webb: May I find out what that sentence was again?

The Court: 262 months.

Mr. Webb: 362 months?

The Court: 262.

Mr. Vineyard: I want to make sure the record is clear the court recognizes it has the authority to downwardly depart but chose not to do so.

The Court: That's what I said.

R5-19-20.

On appeal, Webb argues that the court erred in finding, implicitly, that his 1991 conviction for intimidation of a postal worker, 18 U.S.C. § 111, constituted a "crime of violence" that served as one of the two predicate offenses required to render Webb eligible for status as a career offender. Webb additionally contends that the district court erroneously believed that it lacked the authority to grant a downward departure in his sentence. He further urges that the guidelines do, in fact, authorize the court to downward depart and that such a departure was warranted here. We address seriatim each of Webb's challenges to his sentence.

II. DISCUSSION

A. Career Offender Enhancement

We review a district court's interpretation of the Sentencing Guidelines de novo. United States v. Pinion, 4 F.3d 941, 943 (11th Cir.1993).

As noted, § 4B1.1 establishes that a defendant qualifies as a career offender if, inter alia, he has at least two prior felony convictions that constitute crimes of violence. The guidelines define a crime of violence as

any offense under federal or state law punishable by imprisonment for a term exceeding one year that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2. The commentary further explicates the definitional parameters of a crime of violence as specifically including

murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. Under this section, the conduct of which the defendant was convicted is the focus of the inquiry.

U.S.S.G. § 4B1.2, comment. (n.2).

The statutory provision under which Webb was convicted in 1991, 18 U.S.C. § 111 [hereinafter § 111], provides, in relevant part, that whoever

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties ...

....

shall ... be fined under this title or imprisoned not more than three years, or both.

The final, documented judgment recording Webb's 1991 conviction under this statutory section describes the nature of the offense as "Intimidation of a Postal Service Employee." Exh. 5.

Webb submits that the court erred in categorizing him as a career offender based in part on his conviction for intimidation of a postal worker because that offense does not implicate as an element the use, threatened use, or attempted use of physical force; in other words, Webb contends that the particular offense conduct for which he was convicted is not a crime of violence as that term is defined in the guidelines. In support of this contention, Webb suggests that the plain statutory language referenced in his judgment neither explicitly states nor contains by reference to the statutory elements of the offense the use (actual, attempted, or threatened) of physical force. Furthermore, because the pertinent statutory language is unambiguous, we are precluded from looking at the conduct underlying the conviction.

Webb's argument is premised on two underlying principles: First, Webb suggests that there is a legally cognizable distinction between the terms "force" and "physical force" that differentiates those types of crimes that may involve the possibility of "force" or "violence"--as commonly understood and discussed in our case law--from those that are specifically denominated "crimes of violence" in the Sentencing Guidelines. Second, Webb assumes that the language of § 111 is unambiguous on its face and therefore precludes our examination of the actual conduct--i.e., attempted robbery--underlying his conviction to determine whether it in fact...