United States v. Major , 297 F. App'x 246 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4051
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNY REGAN MAJOR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:06-cr-00813)
Argued: September 26, 2008 Decided: October 27, 2008
Before MICHAEL and MOTZ, Circuit Judges, and James C. DEVER,
III, United States District Judge for the Eastern District of
North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Kirsten Elena Small, NEXSEN PRUET, Greenville, South
Carolina, for Appellant. Elizabeth Jean Howard, OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee. ON BRIEF: Benjamin T. Stepp, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenville, South Carolina, for Appellant. W. Walter Wilkins,
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenny Regan Major pleaded guilty to taking money or
property from a financial institution “by force and violence, or
by intimidation” in violation of 18 U.S.C. § 2113(a) (2000). On
appeal, Major contends that no factual basis supports his guilty
plea because the record before the district court contains no
information to demonstrate that he used force and violence or
intimidation to rob the bank. Major did not raise this
objection in the district court and, therefore, in order to
succeed on appeal, he must demonstrate that the district court
plainly erred when it found a factual basis for his plea. Major
has failed to do this. Accordingly, we affirm his conviction.
I.
On July 19, 2006, a criminal complaint was filed against
Major alleging that he had committed bank robbery in violation
of 18 U.S.C. § 2113(a) (2000). The affidavit submitted in
support of the complaint detailed the following alleged criminal
conduct of Major:
Investigation revealed a black male described as late
20’s to early 30’s, 5’6” – 5’8”, medium build, clean
cut, wearing a baseball cap, shorts and a green t-
shirt, entered the bank and approached the teller
counter. The robber asked for some quarter wraps
under the pretext of bank business from the teller at
station #1. When the teller moved to the drive-thru
window to retrieve the wraps, the robber moved around
the counter to the secured access door entering the
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teller area. The robber climbed the access door and
moved to teller station #1. He placed his hands
inside his shirt to avoid direct handling of
materials, grabbed what he believed to be the money
drawer and forced it open. The drawer was a supply
drawer which contained no money. The robber then
moved to teller station #2 and again forced open a
drawer with his hands covered. From station #2, the
robber obtained approximately $1610 in currency
including bait bills and a dye pack. The robber
stuffed the monies under his shirt and left the teller
area by climbing back over the secured door. He
exited the front door of the bank towards the main
parking lot. The robber was last seen traveling on
foot.
In October, 2006, Major appeared before the district court
and pleaded guilty to a one-count indictment charging him with
bank robbery. At the change of plea hearing Major agreed with
the following summary of the crime as presented by the Assistant
United States Attorney:
On July 18th of this year, Mr. Major entered the
Palmetto Bank on Asheville Highway in Inman. He
approached the teller counter and distracted one of
the tellers and then jumped over the secured access
door to get behind the teller line. While there he
obtained money including a dye pack. He stuffed the
money under his shirt, jumped back over the access
door and ran out of the bank.
Also at the plea hearing, Major stated that he understood
that he was charged with having “by force, violence and
intimidation [taken] from the person and presence of employees
of Palmetto Bank . . . money belonging to the bank insured by
the FDIC.” He further stated that he understood that the
elements of the crime with which he was charged were that he
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“took money from the bank employees in possession of the bank;
the taking was either by force, violence or intimidation; and
the deposits were insured by the Federal Deposit Insurance
Corporation.” Having stated that he understood the crime with
which he was charged and the elements of that crime, Major
stated that he still wished to plead guilty. Later in the
hearing he stated at least twice more that he was guilty.
On December 11, 2006, the district court sentenced Major to
180 months of imprisonment and three years supervised release.
At the sentencing hearing, the district court accepted the
findings and guidelines calculations contained in Major’s
presentence report. Paragraph five of the report states the
following with respect to the offense conduct:
Records reveal that on July 18, 2006, the defendant
entered the Palmetto Bank, FDIC, located at 11500
Asheville Highway in Inman, South Carolina. He asked
for some quarter wraps under the pretext of bank
business. When the teller moved away from the area to
obtain the wraps, defendant Major moved around the
counter, climbed over an access door, and forced open
two teller drawers. He obtained $1,610 in U.S.
currency, bait money, and a dye pack, from the second
drawer. He stuffed the money in his shirt and left
the bank.
Three days later judgment was entered in the case, and, on
December 27, 2006, Major filed a notice of appeal of that
judgment. He argues on appeal that no factual basis supports
his guilty plea.
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II.
Because Major did not object to or seek to withdraw his
guilty plea in the district court, we review the acceptance of
the plea for plain error. See United States v. Mastrapa, 509
F.3d 652, 657 (4th Cir. 2007). Under plain error review,
appellate courts may notice an error that was not preserved by
timely objection only if the defendant can demonstrate (1) that
an error occurred, (2) that it was plain, and (3) that the error
affected the defendant’s substantial rights; if these three
criteria are met, an appellate court retains discretion to
correct a forfeited error if (4) the “error seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.” United States v. Bradley, 455 F.3d 453, 461 (4th
Cir. 2006) (quoting United States v. Olano, 507 U.S. 725, 731-32
(1993)). Major contends that the district court plainly erred
by accepting a guilty plea without a sufficient factual basis.
Before a court may enter judgment on a guilty plea, it must
find a factual basis to support the plea. Fed. R. Crim. P.
11(b)(3). The factual basis may be supported by anything in the
record. See Fed. R. Crim. P. 11(b)(3); United States v.
DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). A district court
has wide discretion in determining whether a factual basis
exists. Mastrapa, 509 F.3d at 656; United States v. Morrow, 914
F.2d 608, 611 (4th Cir. 1990). In order to find a factual
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basis, the court need not establish that a jury would find the
defendant guilty or even that the defendant is guilty by a
preponderance of the evidence. The court must determine only
“that the conduct to which the defendant admits is in fact an
offense under the statutory provision under which he is pleading
guilty.” United States v. Carr, 271 F.3d 172, 178-79 n.6 (4th
Cir. 2001)(quoting United States v. Maher, 108 F.3d 1513, 1524
(2nd Cir. 1997))(interpreting an earlier version of Rule 11).
In this case involving bank robbery, the factual basis for
the plea requires information that Major “by force and violence,
or by intimidation [took or attempted to take] from the person
or presence of another . . . money or any other thing of value
belonging to, or in the care, custody, control, management, or
possession of, any bank, credit union, or any savings and loan
association.” See 18 U.S.C. § 2113(a) (2000). Neither party
contends that Major used force and violence. Instead, the
parties dispute whether the district court plainly erred in
finding a factual basis sufficient to conclude that Major used
intimidation to rob the bank. Intimidation occurs in situations
in which a defendant’s conduct is “reasonably calculated to
produce fear” and where “an ordinary person in the teller’s
position reasonably could infer a threat of bodily harm from the
defendant’s acts.” United States v. Wagstaff, 865 F.2d 626, 627
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(4th Cir. 1989)(citations, emphasis, and internal quotations
omitted).
Assuming, without deciding, that the district court erred
in accepting Major’s plea, that error was not plain. An error
is plain only when it is “‘obvious’ and ‘clear under current
law.’” United States v. Benton, 523 F.3d 424, 433 (4th Cir.
2008)(quoting United States v. Olano, 507 U.S. 725, 734 (1993)).
Although the law at issue here is “obvious and clear” that there
must be a sufficient factual basis for a guilty plea, Fed. R.
Crim. P. 11(b)(3), the law is not obvious and clear that the
record in this case did not establish a factual basis for the
crime of bank robbery.
Indeed the closeness of this question is illustrated by two
earlier cases of this court. In Wagstaff, the evidence
presented at trial revealed that the defendant entered a savings
and loan, approached the tellers’ counter, put on a ski mask and
sunglasses, walked through an open gate into the teller area,
took forty-five dollars from a teller’s open cash drawer, and
was then forced to flee when a customer attacked him. 865 F.2d
at 627. The defendant was at all times at least eight feet from
the nearest teller, was not wearing or carrying a weapon, did
not present any written note, said nothing, and made no overtly
threatening gestures. Id. Based on that account of the
robbery, we held, as a matter of law, that the evidence was
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insufficient to demonstrate a taking by intimidation in
violation of 18 U.S.C. § 2113(a). Id. at 629.
On the other hand, even more recently in United States v.
Woodrup, 86 F.3d 359 (4th Cir. 1996), we reached the contrary
conclusion on quite similar facts. There evidence produced at
trial showed that the defendant entered the bank, looked
directly at a teller, walked very quickly across the lobby to
the teller position, reached across the counter as if trying to
grab the teller, and vaulted over the counter headfirst, causing
the teller to back away screaming. Id. at 363. The defendant
did not present a note, show a weapon or make an oral demand for
money. Id. We nevertheless held that sufficient evidence
supported the jury finding that the teller reasonably could have
inferred a threat of bodily harm. Id. at 364.
Neither Wagstaff nor Woodrup make “obvious and clear”
whether the evidence in the case at hand provided a sufficient
factual basis for conviction. Unlike the defendant in Woodrup,
Major did not vault over the counter at any particular teller,
and, in fact, he purposely distracted the teller to get her out
of his way. Major did, however, vault over the security door
and force open a drawer rather than walk through an open door
and take money from an already open drawer as in Wagstaff.
Major’s case also differs from Wagstaff and Woodrup in that
in his case there was not a trial during which witnesses could
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explain in detail the defendant’s behavior. In Major’s case,
the record contained some information that suggested Major
violated 18 U.S.C. § 2113(a) (2000), and Major admitted to the
district court that he had engaged in the relevant criminal
conduct. At the plea hearing, Major stated that he understood
that he was charged with robbing a bank “by force, violence and
intimidation” and that the elements of the crime with which he
was charged included taking money from a bank “either by force,
violence or intimidation.” Then, when asked by the district
court whether he was guilty of the charged crime, he stated that
he was, and then twice reiterated that he was guilty.
Of course, a defendant’s admission of guilt cannot
substitute for the district court’s finding of a factual basis.
See, e.g., United States v. Carr, 271 F.3d 172, 179-80 (4th Cir.
2001). In this case, however, where Major knew whether he used
force, violence, or intimidation to rob the bank, his admission
of that element provided further support for the district
court’s finding that there was a sufficient factual basis for
Major’s guilty plea. Cf. United States v. Mastrapa, 509 F.3d
652, 660-61 (4th Cir. 2007) (holding that the district court
plainly erred in finding a sufficient factual basis where the
defendant repeatedly protested the mens rea element of the crime
and the government failed to “fill the gap” with facts); Carr,
271 F.3d at 179-80 (holding that the district court plainly
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erred when it found a sufficient factual basis for a federal
arson charge despite the defendant’s admission that he set fire
to a building that moved in interstate commerce because the plea
proceeding did not adequately demonstrate that the building was
employed in interstate commerce).
Because it was not clear and obvious that the record
evidence did not provide a factual basis for Major’s guilty
plea, the district court did not plainly err when it accepted
Major’s plea.
III.
Counsel for Major included in his initial brief, filed
pursuant to Anders v. California, 386 U.S. 738 (1967), an
additional issue as to whether the district court erred when it
sentenced Major to 180 months in prison. However, counsel did
not argue that issue. Indeed, he ultimately concluded that the
argument had no merit. We agree.
We have reviewed the record and find that Major’s sentence
is both procedurally sound and substantively reasonable. The
district court properly calculated the Guidelines range,
considered that range in conjunction with the factors set forth
in 18 U.S.C. § 3553(a) (2000), and determined an appropriate
sentence within the Guidelines range. Applying the presumption
of reasonableness afforded sentences within the Guidelines range
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and finding that Major failed to rebut that presumption on
appeal, we conclude that his 180-month sentence is reasonable.
See Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007);
United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008).
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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