United States v. Hayes , 142 F. App'x 476 ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1518
UNITED STATES,
Appellee,
v.
JERRY L. HAYES, a/k/a JEREMIAH L. HAYES,
Defendant, Appellant.
[Hon. Reginald C. Lindsay, U.S. District Judge]
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Before
Selya, Lynch and Lipez,
Circuit Judges.
Timothy G. Watkins on brief for appellant.
Michael J. Sullivan, United States Attorney, Paul G. Levenson,
Assistant U.S. Attorney, and John T. McNeil, Assistant U.S.
Attorney on brief for appellee.
August 9, 2005
Per Curiam. Jerry L. Hayes appeals from a sentence imposed
following his guilty pleas to five counts of bank robbery in
violation of 18 U.S.C. § 2113(a). Hayes' sentence was enhanced for
possession of a firearm -- a handgun Hayes admitted he purchased in
the midst of his crime spree and kept in the glove compartment of
the car he owned and which he used to flee the final robbery.
Hayes has steadfastly asserted that he bought the handgun in order
to provide protection for his family, and that he never used the
handgun during any of the robberies and never intended to do so.
In his original brief, Hayes argued that his sentence was
invalid under Blakely v. Washington, 542 U.S. 296 (2004), because
he disputed the facts underlying the district court's determination
that he "possessed" the handgun during three of the five robberies
and that he made an "express threat of death" during one of the
robberies pursuant to U.S.S.G. §§ 2B3.1(b)(2)(C) and (F). While
his appeal was pending, the United States Supreme Court decided
United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). At
our invitation, the parties filed supplemental briefs in light of
Booker. Hayes concedes that the Blakely/Booker issues he raises on
appeal were not preserved below. Having considered his arguments,
we conclude that he has failed to satisfy the standard set forth in
United States v. Antonakopolous, 399 F.3d 68 (1st Cir. 2005).
Hayes admits that he kept a loaded handgun in the glove
compartment of the car he used in the commission of his bank
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robberies. Hayes denies, however, that he took the handgun with
him into the banks during any of the robberies. The district court
accepted this denial for the purposes of § 2B3.1(b)(2)(C). Hayes
admits that he passed a note to a teller that stated, "I am armed,"
but he denies that he ever used a note that stated "I have a gun."
Based on Hayes' admitted facts, the sentencing enhancements applied
by the district court pursuant to U.S.S.G. §§ 2B3.1(b)(2)(C) and
(F) were correct as a matter of law. United States v. Gray, 177
F.3d 86, 91-92 (1st Cir. 1999) (legal interpretations of the
guidelines subject to de novo review).
First, possession is established when one has "actual and
physical control" or "exclusive detention and control of" an
object. Black's Law Dictionary 1046 (5th ed. 1979). The handgun
was owned by Hayes and it was seized from the car he owned and was
operating, alone, as his getaway car at the time of his arrest. At
all relevant times, therefore, Hayes exercised actual control and
exclusive dominion over the handgun. Cf. United States v. Lucas,
282 F.3d 414, 423-24 (6th Cir.), cert. denied, 537 U.S. 849 (2002),
overruled on other grounds by United States v. Leachman, 309 F.3d
377 (6th Cir. 2002).
Second, in most circumstances, attempted escape from a bank
robbery is an integral part of the crime. United States v.
Ashburn, 20 F.3d 1336, 1341 (5th Cir. 1994) (collecting cases),
cert. denied, 514 U.S. 1113 (1995). The presence of the loaded
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handgun in the front seat of Hayes' getaway car, regardless of the
reasons Hayes claims it was there, constitutes possession and is
sufficient to support the sentencing enhancement.
Third, and with respect to the § 2B3.1(b)(2)(F) enhancement,
the district court committed no error when it credited the
recollection of the teller at the fourth bank Hayes robbed that
Hayes passed her a note stating "I have a gun" while he kept his
left hand concealed in his jacket. Antonakopolous, 399 F.3d at 79-
80. That Hayes claims he never had his gun on his person and would
never have used a gun during the robberies does not alter the
nature of his "unmistakable threat to use a deadly weapon." United
States v. Gray, 177 F.3d at 92.
Finally, Hayes has not shown that there is a "reasonable
probability that the district court would impose a different
sentence more favorable to the defendant under the new 'advisory
Guidelines' Booker regime." Antonakopolous, 399 F.3d at 75.
Hayes' sentence of 78 months falls well below the statutory maximum
of twenty years, 18 U.S.C. § 2113(a), and at the lowest end of the
applicable guidelines range of 78 to 97 months. While the district
court expressed his sympathy for Hayes who, at the age of 53 and
after a life devoted to his Pentecostal ministry, now faces a
significant prison term, it is also clear from the transcript of
the sentencing hearing that there was no reasonable probability of
a lower sentence given the other factors required to be considered.
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United States v. Booker, 125 S. Ct. at 767 (district court "must
consult those Guidelines and take them into account when
sentencing").
Hayes' sentence is affirmed.
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