US v. Martin

• Decision Date: 14 June 2000
• Docket Number: PLAINTIFF-APPELLE,No. 99-4610,DEFENDANT-APPELLANT,V,99-4610
• Citation: 215 F.3d 470
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA,CALVIN PIERRE ANTONIO MARTIN,
• Court: U.S. Court of Appeals — Fourth Circuit

Page 470

215 F.3d 470 (4th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

V.

CALVIN PIERRE ANTONIO MARTIN, DEFENDANT-APPELLANT.

No. 99-4610.

U.S. Court of Appeals, Fourth Circuit.

Argued May 5, 2000.

June 09, 2000.

As amended June 14, 2000.

Appeal from the United States District Court for the District of South Carolina, at Spartanburg.

Margaret B. Seymour, District Judge. (CR-99-206).

Argued: David Wilson Plowden, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. Isaac Louis Johnson, Jr., Office OF The United States Attorney, Greenville, South Carolina, for Appellee. ON Brief: J. Rene Josey, United States Attorney, Harold Watson Gowdy, III, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Before Wilkins, Michael, and Traxler, Circuit Judges.

Vacated and remanded by published opinion. Judge Wilkins wrote the opinion, in which Judge Michael and Judge Traxler joined.

OPINION

Wilkins, Circuit Judge

Calvin Pierre Antonio Martin appeals an order of the district court sentencing him as a career offender, see U.S. Sentencing Guidelines Manual § 4B1.1 (1998), following his conviction for bank larceny, see 18 U.S.C.A. § 2113(b) (West Supp. 2000).¹ Martin contends that he is not eligible to be sentenced as a career offender because bank larceny is not a crime of violence. We agree and accordingly vacate and remand for resentencing.

I.

On February 17, 1999, Martin entered a federally insured bank in Spartanburg, South Carolina, approached a teller, handed her a plastic bag, and said, "I need you to fill this up please." J.A. 54 (internal quotation marks omitted). Martin was unarmed. The teller described Martin as serious and nervous. While she filled the bag, he leaned over the counter with his face about a foot from hers. After the teller had put some bills into the bag, Martin said, "Okay. That's enough." Id. at 55 (internal quotation marks omitted). The teller then returned the bag, and Martin left the bank without saying more. Martin was subsequently charged with a single count of bank robbery. See 18 U.S.C.A. § 2113(a) (West Supp. 2000). The indictment charged that Martin "by force, violence, and intimidation did take [money] from the person and presence of employees of the Palmetto Bank." J.A. 10.

The teller testified at trial that she was afraid, although she never saw a weapon. Martin admitted at trial that he had stolen money from the bank but denied threatening the teller. The district court instructed the jury on the elements of bank robbery and of bank larceny as a lesser included offense. The jury convicted Martin of bank larceny.

At sentencing, the district court determined that Martin was a career offender. First, the court found that Martin was over the age of 18 at the time of the instant offense and that he had two or more prior felony convictions for crimes of violence or drug offenses. Over Martin's objection, the court also found that the instant offense of bank larceny was a crime of violence. The court sentenced Martin to 84 months imprisonment followed by a three-year term of supervised release. Martin appeals his sentence.

II.

The guidelines provide that a defendant should be sentenced as a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of convic tion, (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 convic tions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1.

Here, there is no dispute that Martin was at least 18 years old when he committed the instant offense and that he has the requisite predicate convictions. Martin argues, however, that he should not have been sentenced as a career offender because the offense of conviction, bank larceny, is not a crime of violence within the meaning of the career offender provision. We review this legal question de novo. See United States v. Dickerson , 77 F.3d 774, 775 (4th Cir. 1996).

"Crime of violence" is defined by the guidelines as

any offense under federal or state law, punishable by impris onment for a term exceeding one year, that- (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) 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(a). The commentary enumerates certain offenses that are crimes of violence and explains that

[o]ther offenses are . . . "crimes of violence" if (A) that offense has as an element the use, attempted use, or threat ened 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 . . . by its nature, presented a serious potential risk of physical injury to another.

Id. § 4B1.2, comment. (n.1).

Bank larceny is not one of the offenses enumerated in U.S.S.G. § 4B1.2(a)(2) or the accompanying commentary. Moreover, this offense does not contain as an element the use, attempted use, or threatened use of physical force.² See 18 U.S.C.A. § 2113(b). Therefore, bank larceny is a crime of violence only if it"otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2).

The commentary emphasizes that "in determining whether an offense is a crime of violence . . . the offense of conviction (i.e., the conduct of which the defendant was convicted) is the focus of inquiry." Id. § 4B1.2, comment. (n.2) (emphasis added). The guidelines therefore prohibit "a wideranging inquiry into the specific circumstances surrounding a conviction" in determining whether an offense is a crime of violence. United States v. Johnson, 953 F.2d 110, 113 (4th Cir. 1992). Consistent with the limitations imposed by the guidelines on any factual inquiry, we have stated that

in assessing whether a particular offense satisfies the "other wise clause" of [U.S.S.G. § 4B1.2(a)(2)], a sentencing court must confine its factual inquiry to those facts charged in the indictment. If the sentencing court cannot glean the circum stances surrounding the defendant's commission of the crime from the indictment, the question for the sentencing court becomes whether that crime, in the abstract, involves conduct that presents a serious potential risk of physical injury to another.

Dickerson, 77 F.3d at 776 (internal quotation marks & citations omitted) (emphasis added); see also Johnson, 953 F.2d at 113 (stating that the plain meaning of application note 2 to U.S.S.G.§ 4B1.2 makes clear that "a sentencing court must confine its factual inquiry to those facts charged in the indictment"). Thus, a two-part inquiry is required to determine whether an offense is a crime of violence under the "otherwise clause." First, we consider the indictment pertaining to the offense of which the defendant was convicted. If that effort is unavailing, we consider whether the offense of conviction is a crime of violence in the abstract.

A.

Martin was indicted for bank robbery, see 18 U.S.C.A. § 2113(a).³ In particular, the indictment charged that Martin"by force, violence, and intimidation did take [money] from the person and presence of employees of the Palmetto Bank." J.A. 10. The jury convicted Martin of the lesser included offense of bank larceny. Thus, it is not the case that the conduct set forth in the indictment is"the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted." U.S.S.G. § 4B1.2, comment. (n.1). In fact, there is no indictment charging Martin with bank larceny, the offense of which he was convicted.

The Government essentially argues for the creation of a de facto "indictment" for the offense of conviction by omitting from the indictment for bank robbery the reference to "force, violence, and intimidation," and retaining the reference to "tak[ing] from the person and presence of [bank] employees." J.A. 10. The Government asserts that the conviction by the jury on the lesser included offense indicates that, although the jury did not find that Martin used force, violence, or intimidation, it did find that Martin took the money from a person. Reasoning by analogy to cases from other circuits holding that larceny from a person is a crime of violence, the Government argues that bank larceny from the person or presence of a teller is also a crime of violence. See United States v. Payne, 163 F.3d 371, 374-75 (6th Cir. 1998); United States v. De Jesus, 984 F.2d 21, 24-25 (1st Cir. 1993). But see United States v. Lee, 22 F.3d 736, 740-41 (7th Cir. 1994) (holding that theft from a person is not a crime of violence).

Assuming without deciding that when a jury convicts a defendant of a lesser included offense it is permissible to consider those facts alleged in the original indictment that correspond to the elements of the lesser included offense, the Government's argument fails. Bank larceny lacks as a statutory element not only the use of force, violence, or intimidation, but also the taking from the person or presence of another. Thus, conforming the indictment to Martin's bank larceny conviction requires deletion of both the reference to force, violence, and intimidation and the reference to taking from the person and presence of bank employees. See United States v. Arnold, 58 F.3d 1117, 1124 (6th Cir. 1995) (holding in a case where the defendant was not convicted of the offense with which he was originally charged that in determining whether the offense of conviction is a crime of violence, "the . . . court should limit its examination to only those charges in the indictment that are essential to the offense" of which the defendant was convicted); United States...