United States v. Lloyd ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5545
DONALD RAY LLOYD,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CR-95-3-BO)
Argued: September 27, 1996
Decided: October 18, 1996
Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Edwin Chrisco Walker, Assistant Federal Public
Defender, Raleigh, North Carolina, for Appellant. William Arthur
Webb, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee. ON BRIEF: Janice McKenzie Cole, United States Attor-
ney, Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
On March 6, 1995, Donald Ray Lloyd pled guilty to the charge of
armed bank robbery in violation of 18 U.S.C.A. §§ 2113(a) and
2113(d) (West Supp. 1996). The district court sentenced Lloyd to a
term of 96 months incarceration, a 60 month period of supervised
release, and a special assessment of $50.00. On appeal, Lloyd con-
tends that the district court erred in applying a two-level vulnerable
victim enhancement. See United States Sentencing Commission,
Guidelines Manual, § 3A1.1(b) (Nov. 1995). He claims that the evi-
dence was insufficient to support the district court's finding that he
specifically targeted the victim because of her vulnerability. We con-
clude that the district court did not err when it increased Lloyd's base
offense level under U.S.S.G. § 3A1.1(b). As a result, we affirm
Lloyd's sentence.
I.
On November 2, 1994, Lloyd robbed the Centura Bank in Rocky
Mount, North Carolina. Armed with a knife, Lloyd entered the bank
and presented a robbery note to 78-year-old teller Obie Cressman. He
then pulled Ms. Cressman's head down to the counter, threatening her
with the knife and tearing off her necklace in the process. He
announced that he would kill Ms. Cressman if he was not given what
he wanted and ordered another teller to put money in a bag. Amy
Keel, one of the other tellers, put $3,996 in a bag and placed it on the
counter. Lloyd grabbed the money and ran from the bank. He was
arrested later that day.
Lloyd had not been in the Rocky Mount Centura Bank prior to the
robbery, nor had he previously surveilled the bank. Only the bank
manager, two tellers aged 27 and 31, and Ms. Cressman were present
in the bank when Lloyd arrived. After the robbery, the bank manager
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and the tellers indicated that they had been terrorized by the robbery.
Ms. Cressman stated that she was "scared to death" and has "become
leery of anyone who approaches her teller counter."
On January 17, 1995, a grand jury sitting in the Eastern District of
North Carolina indicted Lloyd on one count of armed bank robbery
in violation of 18 U.S.C.A. §§ 2113(a) and 2113(d). On March 6,
1995, Lloyd pled guilty to the charge. At the sentencing hearing, the
district court initially determined a base offense level of 22 based on
the robbery (+20), the amount of money stolen (+2), the use of a dan-
gerous weapon (+3), and Lloyd's acceptance of responsibility (-3). In
agreement with the Government's objection to the pre-sentence
report, the district court also found that Lloyd had preyed upon an
unusually vulnerable victim when he assaulted Ms. Cressman. Conse-
quently, the court upwardly adjusted the offense level another two
levels under U.S.S.G. § 3A1.1(b) (Vulnerable Victim), resulting in a
base offense level of 24. This new calculation, combined with crimi-
nal history category IV, gave Lloyd a guideline range of 77-96
months. Accordingly, the district court sentenced him to imprison-
ment for 96 months, with a supervised release of 60 months and a
special assessment of $50.00. Lloyd appeals his sentence.
II.
Section 3A1.1(b) of the Sentencing Guidelines requires district
courts to upwardly adjust offense levels by two levels "[i]f the defen-
dant knew or should have known that a victim of the offense was
unusually vulnerable due to age, physical or mental condition, or that
a victim was otherwise particularly susceptible to the criminal con-
duct." U.S.S.G. § 3A1.1(b) (emphasis supplied). Lloyd maintains that
the evidence failed to show that he selected his victim because of her
vulnerability. Applying the statutory command to give "due defer-
ence" to a district court's application of the Sentencing Guidelines,
we review factual determinations for clear error and legal questions
de novo. See United States v. Blake, 81 F.3d 498, 503 (4th Cir. 1996);
United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995). Upon
review, we hold that the district court's findings are sufficient to
establish that Lloyd specifically targeted Ms. Cressman. We therefore
affirm the sentencing order of the district court.
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To apply § 3A1.1(b), a district court must make two findings. See
United States v. Holmes, 60 F.3d 1134, 1136 (4th Cir. 1995) (outlin-
ing two-part test); Singh, 54 F.3d at 1191 (same). First, the court must
find that the victim was, as the language of the Guideline suggests,
"unusually vulnerable." See U.S.S.G.§ 3A1.1(b); Holmes, 60 F.3d at
1136; Singh, 54 F.3d at 1191; see also United States v. Wilson, 913
F.2d 136, 138 (4th Cir. 1990) ("The vulnerability that triggers
§ 3A1.1 must be an unusual vulnerability which is present in only
some victims . . . .") (internal quotation marks and citation omitted).
In other words, in a proper § 3A1.1(b) enhancement, the district court
must find that because of age, mental or physical condition, or any
other relevant deficit, the victim was "more susceptible to abuse from
a perpetrator than most other potential victims of the particular
offense." Singh, 54 F.3d at 1191-92.
Second, the district court must find that the defendant "targeted"
the victim because of the victim's unusual vulnerability. See Holmes,
60 F.3d at 1136; Singh, 54 F.3d at 1191; see also United States v.
Gary, 18 F.3d 1123, 1128 (4th Cir.) (for enhancement to apply, the
defendant must have "initially chosen" the victim because of the vic-
tim's unusual vulnerability), cert. denied, 115 S. Ct. 134 (1994). "At
the very least, the victim's vulnerability must play a role in the defen-
dant's decision to select that victim as the target of the crime." Singh,
54 F.3d at 1191 & n.5 (citing cases).
Thus, under this two-part test, "the district court must first look to
the victim to determine whether this particular victim was more vul-
nerable to the offense than the world of possible victims. Then, the
court must determine whether the defendant specifically targeted the
victim because of that vulnerability." Singh , 54 F.3d at 1192. If these
conditions are satisfied, then the district court should increase the
base offense level two levels under §3A1.1(b).
Lloyd does not claim that Ms. Cressman was not "unusually
vulnerable."1 Instead, he contends that the district court's finding that
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1 Indeed, such an argument would likely fail because the Sentencing
Guidelines expressly recognize age as an indicator of vulnerability. See
U.S.S.G. § 3A1.1(b) (listing nonexclusively age, physical condition, and
mental condition as indicators of susceptibility to criminal conduct).
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he targeted Ms. Cressman because of her vulnerability was clearly
erroneous. (Appellant's Br. at 7-8.) He argues that the district court
should have examined the facts broadly and inferred that, because
Lloyd had never before been in the bank, he selected the bank with
no knowledge of the age of the tellers. See id. In essence, he claims
that because he chose the bank randomly, Ms. Cressman could not
have been specifically targeted.2
Despite Lloyd's contentions, we have no difficulty concluding that
the district court properly applied § 3A1.1(b) in the instant case. Ms.
Cressman was 78 years old at the time of the robbery. (J.A. at 43.)
Three other people, all less vulnerable than Ms. Cressman, were in the
bank when Lloyd arrived. (J.A. at 43-44.) Lloyd himself admitted that
given a choice between the two young tellers, the bank manager, and
Ms. Cressman, he chose to accost "the older white teller." (J.A. at 53.)
Based on this evidence, the district court found that Lloyd chose spe-
cifically to act against Ms. Cressman because of her"particular char-
acteristics of age and therefore vulnerability." (J.A. at 44.)
Common sense dictates that an aged and delicate bank teller would
be more susceptible -- i.e., unusually vulnerable -- to Lloyd's
strong-arm tactics than younger, less fragile, bank employees. As his
admission illustrates, Lloyd specifically selected the "older" Ms.
Cressman to present with the robbery note. Common sense also dic-
tates that because Lloyd had a choice among young and old tellers,
and because he chose to assault the older teller, he specifically tar-
geted Ms. Cressman because of her vulnerability. Thus, the district
court's finding that Lloyd targeted her because of her "particular char-
acteristics of age and therefore vulnerability," (J.A. at 44), was not
clearly erroneous. See Blake, 81 F.3d at 504 (holding that district
court "was not clearly erroneous in finding that[the defendant's] vic-
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2 Implicit in Lloyd's argument is the contention that the bank, and not
Ms. Cressman, was the victim of the robbery. However, we have recently
held that the "victim of the offense" for vulnerable-victim sentencing
purposes may be a person who was not a victim of the particular offense
of conviction. See United States v. Blake, 81 F.3d 498, 503-04 (4th Cir.
1996) (holding that persons from whom the defendant stole credit cards
were victims of the offense of fraudulent use of an unauthorized access
device).
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tims were unusually vulnerable because of their age and that [the
defendant] targeted them due to this vulnerability"). The sentence
imposed by the district court is therefore affirmed.
AFFIRMED
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