United States v. Marvin Tillman , 305 F. App'x 846 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-16-2009
USA v. Marvin Tillman
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1706
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1706
UNITED STATES OF AMERICA
v.
MARVIN TILLMAN,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D. C. No. 2-06-cr-00528-3)
District Judge: Honorable Stanley R. Chesler
Submitted under Third Circuit LAR 34.1(a)
on December 11, 2008
Before: McKEE, SMITH and ROTH, Circuit Judges
(Opinion filed: January 16, 2009)
OPINION
ROTH, Circuit Judge:
Marvin Tillman appeals from a judgment of sentence after pleading guilty to
conspiring to rob an armored vehicle and to commit and threaten physical violence in
furtherance of that plan, in violation of 18 U.S.C. § 1951(a). The District Court had
jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. 3742(a). We exercise plenary review of an interpretation of the Sentencing
Guidelines and review factual findings for clear error. United States v. Grier, 475 F.3d 556,
570 (3d Cir. 2007). We will affirm.
We assume the parties’ familiarity with the facts and the record of prior proceedings,
which we describe only as necessary to explain our decision.
Tillman first argues that the District Court erred in calculating the loss amount as
$1,165,000—the amount in the armored car at the time of the robbery—rather than
$88,355—the amount actually transferred to the getaway vehicle.1 The facts are undisputed,
however, that Tillman’s coconspirators were in sole possession and control of the armored
car and, in fact, drove it some distance before they fled to the getaway vehicle. Accordingly,
the District Court’s calculation was proper. See U.S.S.G. § 2B3.1, Appl. Note 3 (“‘Loss’ is
the value of the property taken, damaged, or destroyed.”); United States v. Parker, 903 F.2d
1Section 2B3.1 of the Sentencing Guidelines, which governs robberies, provides for a
four-level increase if the loss amount is more than $800,000 but less than $1,500,000,
U.S.S.G. § 2B3.1(b)(7)(E), and a two-level increase if the loss is more than $50,000 but
less than $250,000, id. § 2B3.1(b)(7)(C).
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91, 105 (2d Cir. 1990) (“[The conspirators] removed the car’s occupants and drove the car
away. . . . The fact that [they] did not transfer all of the cash from the stolen car to their
getaway car does not mean that they had not taken it.”).
Tillman next argues that the District Court erred in applying a seven-level increase to
Tillman’s offense level because a firearm was discharged during the robbery. It is
undisputed, however, that one of Tillman’s coconspirators fired his gun during the robbery.
The District Court’s explicit finding that this was both in furtherance of the conspiracy and
reasonably foreseeable is, thus, not clearly erroneous. See U.S.S.G. § 1B1.3, Appl. Note
2(b)(1) (“getaway driver in an armed bank robbery” responsible for assault injury to bank
teller); United States v. Dupree, 323 F.3d 480, 490 (6th Cir. 2003) (reasonably foreseeable
that firearm would be involved in robbery of armored car); United States v. Molina, 106 F.3d
1118, 1121–22 (2d Cir. 1997) (same).
Finally, Tillman argues that the District Court should have granted his motion for a
downward departure. Tillman does not argue, however, that the District Court
misapprehended the law concerning its ability to grant the requested departure, and we will
not review a District Court’s discretionary decision to deny departure. United States v.
Cooper, 437 F.3d 324, 332–33 (3d Cir. 2006). In any event, the District Court ultimately
sentenced Tillman to a 140-month term of imprisonment, well below his Sentencing
Guidelines range of 151–188 months.
Accordingly, we will affirm the judgment of sentence.
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