United States v. Frederick Clay , 440 F. App'x 902 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15626 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 22, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:08-cr-00073-HL-CWH-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
FREDERICK CLAY,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(September 22, 2011)
Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Frederick Clay appeals his above-Guidelines 300-month sentence for
committing armed bank robbery, brandishing a firearm during a crime of violence,
and being a felon in possession of a firearm. He claims that the district court (1)
erred by denying him a two-level reduction for acceptance of responsibility, (2)
abused its discretion by imposing an upward departure, and (3) issued a
substantively unreasonable sentence by imposing both an upward departure and an
upward variance. After review of the record and the parties’ briefs, we affirm.
I.
In late 2007, Clay and two cohorts—Merkuri Stanback and Carmilla
Davis—robbed the Park Community Federal Credit Union. Clay and Stanback
possessed handguns while Davis was armed with a stun gun. The group entered
the bank and immediately restrained two employees with cable ties. One of the
male defendants found the manager, forced her to obtain the combination to the
bank vault, and began to walk her towards it. He threatened to kill her—on two
occasions—if she failed to cooperate. Two patrons, a mother and her 15-year-old
daughter, then entered the bank. They too were restrained. During their entrance,
the defendants again tied up the manager before eventually freeing her to open the
vault. The group stole nearly $200,000 in cash from the bank, as well as two
employees’ purses, keys, etc. The day after the robbery, authorities searched
Stanback’s sister’s residence and discovered two handguns, nylon cable ties, and
almost $140,000 in cash, including some torn and dye-stained bills.
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Clay eventually pleaded guilty to committing armed bank robbery,1
brandishing a firearm during a crime of violence,2 and being a felon in possession
of a firearm.3 He admitted each essential element of his illegal conduct but
declined to name his co-indictees or even to say that he acted in concert with the
other robbers. At the initial sentencing, the district court increased the base
offense level by applying a number of enhancements. After the court applied the
enhancements, Clay’s Guidelines range was 205–235 months’ imprisonment. The
district court concluded that both an upward departure and an upward variance
were necessary, and it imposed a 300-month sentence. Clay appealed. Before
disposition of the appeal, the government conceded that the district court errantly
applied one enhancement, and we remanded for re-sentencing.
At re-sentencing, the district court determined that Clay’s base offense level
was 20. It added three two-level enhancements because Clay (1) stole property
from a financial institution, U.S.S.G. § 2B3.1(b)(1); (2) physically restrained a
person to facilitate the commission of the offense, id. at 2B3.1(b)(4)(B); and (3)
stole more than $50,000, but less than $250,000, from the bank, id. at
1
18 U.S.C. § 2113(a), (d).
2
18 U.S.C. § 924(c)(1)(A)(ii).
3
18 U.S.C. §§ 922(g)(1), 924(a)(2).
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§ 2B3.1(b)(7)(C). Furthermore, the district court declined to give Clay a two-level
acceptance-of-responsibility reduction because, despite timely admitting to his
crime, he failed to identify his co-defendants or acknowledge that he was part of a
group effort to rob the bank. Accordingly, the adjusted offense level totaled 26.
With a level I criminal history category, the recommended Guidelines range was
63–78 months’ imprisonment. But, pursuant to U.S.S.G. § 2K2.4(b), Clay’s
conviction for brandishing a firearm during a crime of violence required that he
serve a consecutive term of 84 months’ imprisonment, raising his Guidelines range
to 147–162 months.
The district court, after calculating that Guidelines range, decided that an
upward variance and an upward departure were necessary. It concluded that three
facts, along with the § 3553(a) factors, necessitated a longer sentence. First, the
court noted that “there were threats of death made by one of the male robbers in
this case which was not fully taken into account” by the Guidelines. Second, it
concluded that the Guidelines adjustment for restraint during the commission of a
crime did not adequately reflect that (1) four individuals were restrained, (2) one
individual’s hands and feet were bound, (3) a 15-year-old girl and her mother were
subdued, and (4) the bank manager was restrained, released, and restrained again.
Third, the Guidelines did not account for “[t]he fact that there were two handguns
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and an electrical stun gun.” In closing, the district court listed the § 3553(a)
factors and concluded that a sentence of 300 months’ imprisonment more
appropriately complied with the purposes of sentencing.
II.
Clay first argues that the district court erred by failing to credit him with an
acceptance-of-responsibility reduction. He emphasizes that he timely admitted to
all of his own illegal conduct alleged the indictment. Clay believes that his denial
that Stanback and Davis were involved is irrelevant because he took responsibility
for own his criminal conduct. Clay contends that the district court conflated the
requirements for an acceptance-of-responsibility reduction and a substantial-
assistance reduction.
“We review a district court’s factual findings concerning a reduction for
acceptance of responsibility for clear error.” United States v. Williams, 408 F.3d
745, 756 (11th Cir. 2005) (per curiam). “The sentencing judge is in a unique
position to evaluate a defendant’s acceptance of responsibility.” U.S.S.G. § 3E1.1
cmt. n.3. Therefore, the district court’s denial of the reduction “is entitled to great
deference on review and should not be disturbed unless it is without foundation.”
United States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009) (quotation marks
omitted).
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A defendant may receive a two-level reduction in his offense level if he
“clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. §
3E1.1(a). A defendant who pleads guilty is not entitled to an
acceptance-of-responsibility reduction as a matter of right, although a timely
guilty plea and a truthful admission of the offense and any relevant conduct for
which the defendant is accountable under U.S.S.G. § 1B1.3 constitutes significant
evidence of acceptance of responsibility. Id. § 3E1.1(a) cmt. n.5. In contrast, “a
defendant who falsely denies, or frivolously contests, relevant conduct that the
court determines to be true has acted in a manner inconsistent with acceptance of
responsibility.” Id. § 3E1.1(a) cmt. n.1(a). In the case of a jointly undertaken
criminal activity, regardless of whether the offense is charged as a conspiracy, a
defendant’s relevant conduct includes “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal activity.” Id.
§ 1B1.3(a)(1)(B).
With these principles in mind, we conclude that the district court did not
commit clear error in declining to give Clay an acceptance-of-responsibility
reduction. As his relevant conduct undoubtedly included the actions taken by
Stanback and Davis, Clay’s continued denial that he engaged in jointly undertaken
criminal activity provided a sufficient basis for the district court’s denial of the
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reduction.
III.
Clay next argues that the district court erred in imposing an upward
departure and an upward variance because it relied on aggravating factors that the
Guidelines took into account. Specifically, the death threats, the use of firearms,
and the restraint of victims were all part of the Guidelines range calculation.
Accordingly, he believes that the district court impermissibly double-counted
those facts.
“We review a district court’s decision to depart from the Guidelines for an
abuse of discretion.” United States v. Melvin, 187 F.3d 1316, 1320 (11th Cir.
1999). We also review the substantive reasonableness of a sentence under the
abuse-of-discretion standard, United States v. Docampo, 573 F.3d 1091, 1101
(11th Cir. 2009), which “allow[s] a range of choice for the district court, so long as
that choice does not constitute a clear error of judgment,” United States v. Kelly,
888 F.2d 732, 745 (11th Cir. 1989).
A district court may depart from the Sentencing Guidelines if it determines
that “an aggravating factor exists that places the case outside of the Guidelines’
heartland.” Melvin, 187 F.3d at 1320; see U.S.S.G. § 5K2.0(a)(3) (allowing courts
to depart where a “circumstance is present in the offense to a degree substantially
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in excess of, or substantially below, that which ordinarily is involved in that kind
of offense”). “Whether a case is unusual enough to fall outside of the heartland is
determined in large part by comparison with other Guidelines cases.” Melvin, 187
F.3d at 1320. “Because the district courts see so many Guidelines cases, district
courts have an institutional advantage over appellate courts in determining
whether a case is outside the heartland, and thus their decisions are entitled to
substantial deference.” Id. Even if the Guidelines already take a factor into
consideration, the district court may still use that factor as a basis for a departure if
it is “present to an exceptional degree or in some other way makes the case
different from the ordinary case where the factor is present.” Koon v. United
States, 518 U.S. 81, 96, 116 S. Ct. 2035 (1996), partially abrogated by statute on
other grounds as recognized in United States v. Mandhai, 375 F.3d 1243, 1249
(11th Cir. 2004). In reviewing the extent of a district court’s departure, we must
consider whether the sentence is reasonable in light of the 18 U.S.C. § 3553(a)
factors and the reasons that the district court provided for the departure. Melvin,
187 F.3d at 1322–23; 18 U.S.C. § 3742(e)(3)(C).
The party challenging the reasonableness of a sentence “bears the burden of
establishing that the sentence is unreasonable in the light of both th[e] record and
the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th
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Cir. 2005) (per curiam). Section 3553(a) requires courts to consider its oft-
repeated factors in determining a reasonable sentence. See id. at 786. “The weight
to be accorded any given § 3553(a) factor is a matter committed to the sound
discretion of the district court, and we will not substitute our judgment in
weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir. 2007) (alterations and quotation marks omitted). Generally, a sentencing
court should support a major departure from the Guidelines range with a more
significant justification than it would a minor departure. United States v. Pugh,
515 F.3d 1179, 1190 (11th Cir. 2008).
Here, we decline to conclude that the district court abused its discretion by
departing and varying upward from the Guidelines range. Though Clay is correct
that the Guidelines account for some of the aggravating factors on which the
district court relied, he fails to appreciate that the court can impose additional
penalties when it determines that the enhancements and Guidelines range do not
appropriately capture the conduct at issue. First, while the two-level enhancement
for restraining a victim was taken into account, the Guidelines did not factor in
that the defendants (1) restrained at least five victims, including a 15-year old girl,
and (2) restrained, released, and again restrained the bank manager. Second, while
a death threat ordinarily justifies an enhancement, the district court included no
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such enhancement when calculating Clay’s Guidelines range. The district court’s
consideration of the two threats—made while a gun was being pointed at the bank
manager—was not inappropriate. Third, while Clay’s conviction for brandishing a
firearm during a crime of violence did mandate a seven-year consecutive sentence,
the district court correctly pointed out that that did not take into account the fact
that multiple assailants used multiple handguns and a taser to further the bank
robbery. Finally, after specifically articulating the § 3553(a) factors it thought
warranted an upward variance, the district court concluded that the purposes of
sentencing would not be advanced by a sentence within Clay’s Guidelines range.
Accordingly, because the district court provided a meaningful explanation of its
decision, we believe that the sentence imposed was within the district court’s
range of discretion.
IV.
Based on the foregoing discussion, we affirm.
AFFIRMED.
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