United States v. Hix , 458 F. App'x 775 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 21, 2012
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 11-1309
v. (D.C. No. 1:11-CR-00065-MSK-1)
D. Colorado
TRENT S. HIX,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
I. Introduction
Appellant Trent S. Hix was charged with three counts of bank robbery, in
violation of 18 U.S.C. § 2113(a). Hix pleaded guilty to all three counts. The
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
district court sentenced him to fifty-seven months’ imprisonment, the low end of
the advisory guidelines range. Hix appeals his sentence, arguing first that the
district court erred by adding three points to his offense level calculation based on
the court’s conclusion he brandished a dangerous weapon during one of the
robberies. He also challenges the substantive reasonableness of his within-
Guidelines sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a), we affirm Hix’s sentence.
II. Background
Hix was arrested in 2011 after he committed a series of bank robberies in
Colorado. He pleaded guilty to three counts of bank robbery, in violation of 18
U.S.C. § 2113(a). At the change of plea hearing, Hix admitted committing all
three robberies and admitted he presented each of the three tellers with a note
reading, “I have a gun. Give me [money] and you will not be hurt. Do not come
after me.” Hix also admitted that during one robbery, he showed the teller what
appeared to be a handgun. The parties agreed, however, that it was actually a toy
gun.
The district court accepted Hix’s guilty plea and the United States
Probation Office prepared a Presentence Investigation Report (“PSR”). The total
offense level for Count One was calculated at twenty-five. This included a two-
level increase under USSG § 2B3.1(b)(1) because property was taken from a
financial institution and a three-level increase under USSG § 2B3.1(b)(2)(E)
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because Hix brandished a dangerous weapon during the robbery. After grouping
the other two offenses and applying a three-level reduction under USSG § 3E1.1
for acceptance of responsibility, the PSR arrived at a total offense level of
twenty-five. Hix’s criminal history score of zero placed him in Criminal History
Category I. Based on the criminal history category and total offense level, the
PSR calculated an advisory guidelines range of fifty-seven to seventy-one
months’ imprisonment.
Hix did not object to the calculation of the advisory guidelines range but he
filed a motion requesting a downward variance from that range, arguing a
variance was appropriate based, inter alia, on his personal history, the nature and
circumstances of the offense of conviction, and the need to afford adequate
deterrence. See 18 U.S.C. § 3553(a). Specifically, Hix asserted he grew up in a
poor family and witnessed his father verbally and physically abuse his mother.
He and his mother moved to Colorado after his parents divorced but they
continued to struggle financially. Hix’s financial situation deteriorated further
after he was diagnosed with lymphoma. The stress of his financial situation
caused Hix to begin abusing alcohol and his excessive drinking contributed to his
decision to pay his mounting debts and living expenses by robbing banks. Hix
also argued he was unlikely to re-offend because of his status as a first-time
offender and his fear of incarceration based on the physical mistreatment he
suffered at the hands of other inmates at the Federal Detention Center.
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At the sentencing hearing, the district court heard argument on Hix’s
motion but denied his request for a variant sentence, stating:
Looking at the nature and circumstances of the offense, I see three
robberies where the tellers who were confronted were threatened
with danger to their life or their physical safety. I see small amounts
that were recovered by the defendant over an exceedingly long period
of time. I see a defendant who has a tragic childhood history and has
suffered from many kinds of physical illnesses. But none of those
justify what he did.
The court sentenced Hix to fifty-seven months’ imprisonment, the low end of the
advisory guidelines range. Hix then filed this appeal.
III. Discussion
A. Procedural Reasonableness
Hix first argues his sentence is procedurally unreasonable because the
district court erred when it calculated his advisory guidelines range. Specifically,
Hix asserts the court should not have applied the three-level “dangerous weapon”
enhancement under USSG § 2B3.1(b)(2) because he brandished a toy gun, which
he argues is not a dangerous weapon. Generally, this court evaluates a sentence
for procedural reasonableness by “review[ing] the district court’s legal
conclusions regarding the Guidelines de novo and its factual findings for clear
error.” United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008).
Because Hix did not contemporaneously raise this alleged procedural error during
the sentencing hearing, however, we review his claim for plain error. United
States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007).
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This court has previously held that a toy gun qualifies as a dangerous
weapon for purposes of § 2B3.1(b)(2). United States v. Pool, 937 F.2d 1528,
1530-31 & 1531 n.1 (10th Cir. 1991); Cf. United States v. Farrow, 277 F.3d 1260,
1267-68 (10th Cir. 2002) (holding that a concealed hand can be an “object” for
purposes of the definition of the term “dangerous weapon” as used in
§ 2B3.1(b)(2) because “even the perception of a dangerous weapon has the
potential to add significantly to the danger of injury or death”). Hix
acknowledges his argument is foreclosed by this court’s precedent but advises the
court he has raised the issue in this appeal to preserve it for further review. We
agree with Hix that our precedent forecloses his argument and, thus, he cannot
meet his burden of showing plain error in the calculation of his advisory
guidelines range. See United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir.
2000) (“Under the doctrine of stare decisis, this panel cannot overturn the
decision of another panel of this court barring en banc reconsideration, a
superseding contrary Supreme Court decision, or authorization of all currently
active judges on the court.” (quotation omitted)).
B. Substantive Reasonableness
Hix also argues his sentence is substantively unreasonable. This court
applies a highly deferential abuse of discretion standard to claims of substantive
unreasonableness. United States v. Reyes-Alfonso, 653 F.3d 1137, 1144 (10th Cir.
2011). We will reverse a sentence only if it is “arbitrary, capricious, whimsical,
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or manifestly unreasonable.” United States v. Haley, 529 F.3d 1308, 1311 (10th
Cir. 2008). “The fact that the appellate court might reasonably have concluded
that a different sentence was appropriate is insufficient to justify reversal of the
district court.” Gall v. United States, 552 U.S. 38, 51 (2007). Hix faces a high
burden on appeal because his sentence fell within a properly calculated advisory
guidelines range and, thus, we presume it to be reasonable. United States v.
Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). To rebut this presumption, Hix
must show his “sentence is unreasonable when viewed against the other factors
delineated in [18 U.S.C.] § 3553(a).” Id.
Hix argues his sentence is manifestly unreasonable because the district
court disregarded all the facts he offered to explain the circumstances surrounding
the offense of conviction and his personal history and characteristics.
Specifically, he alleges the court did not afford any weight to his arguments that
he (1) stole only small amounts of money and did so only when he reached the
point of desperation, (2) he and his mother lived in increasing poverty and he
committed the robberies to pay medical bills and living expenses, and (3) he is
unlikely to re-offend because of the physical and sexual assault he suffered while
incarcerated. The district court, instead, placed more weight on the fact that Hix
threatened the three tellers, placing them in fear for their lives.
The record confirms the district court fully considered all the facts Hix
references. Analyzing those facts within the context of § 3553(a), and weighing
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them against the fact Hix made deadly threats during the three robberies, the court
concluded they did not justify a variant sentence. There was nothing manifestly
unreasonable about the district court’s conclusion.
IV. Conclusion
The sentence imposed by the district court is affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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