United States v. Ledford, Carl L. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-1648, 99-1922
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARL L. LEDFORD and
SHANE A. THOMAS,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, Fort Wayne
Division.
No. 97 CR 31--William C. Lee, Chief Judge.
ARGUED OCTOBER 25, 1999--DECIDED JUNE 27,
2000
Before EASTERBROOK, MANION, and ROVNER,
Circuit Judges.
ROVNER, Circuit Judge. Carl Ledford and
Shane Thomas robbed a bank in Fort Wayne,
Indiana. Both men were armed, and in the
course of the robbery, Thomas injured
both a customer and a bank employee with
his handgun. Based upon a bystander’s 911
call, the authorities were able to stop
the men’s car as they attempted to make a
getaway. A brief inspection of the
automobile trunk revealed a firearm, a
bag full of cash, and other incriminating
evidence. A jury later convicted them of
committing bank robbery by force and
violence, or by intimidation, 18 U.S.C.
sec. 2113(a), and using a firearm during
and in relation to a crime of violence,
18 U.S.C. sec. 924(c). In calculating the
sentencing range for each defendant, the
district court found that they had
inflicted bodily injuries in the course
of the robbery, and that their offense
levels should be adjusted accordingly.
See U.S.S.G. sec. 2B3.1(b)(3)(A) (1998).
Ledford and Thomas now challenge both
their convictions and sentences, arguing
that the district court should have
suppressed the evidence discovered in the
warrantless inspection of the car trunk
and that in passing sentence the court
improperly held them responsible for
inflicting injuries on the bank patron
and employee. We affirm.
I.
In the early afternoon of November 17,
1997, Ledford and Thomas backed a car up
to the entrance of the Standard Federal
Bank in the Waynedale section of Fort
Wayne and walked into the bank. Both men
carried handguns. Both were dressed in
dark clothing and had covered their
faces, one with a white hockey mask and
the other with a black stocking cap and
blue head covering with eye holes cut
into it.
Upon entering the bank, they shouted at
everyone to get down on the floor. Thomas
struck one of the patrons, Donald McAfee,
in the chest with his forearm, fist, and
gun. McAfee suffered a contusion on his
chest, and he was later hospitalized for
examination when he complained of chest
pains. Thomas subsequently took savings
counselor Kamie Arnold with him to the
bank vault and, after ordering her to
open it, pressed his gun into the small
of her back and pushed her into the jamb
of the vault door. That shove resulted in
bruises to Arnold’s hand, arm, and her
upper body. Arnold was unable to access
the cash in the vault, however, prompting
Thomas to assault her twice more with the
gun: once he placed it against her head,
threatening to kill her, and a second
time he shoved the gun into her ribs,
demanding more money. Thomas finally let
Arnold be after bank teller Marjorie
Creager screamed at him that the vault
was inaccessible. In the end, Ledford and
Thomas managed only to steal the money
that was stored in the tellers’ drawers.
Ledford and Thomas left the bank with
$6,000 to $7,000 in cash, including some
bait bills ($10 bills whose serial
numbers were recorded by the bank). But
their ill-gotten prosperity proved to be
short-lived.
Car salesman Mark Sieger was sitting in
his car watching the bank when the
defendants emerged. His suspicions had
been aroused moments earlier when the
defendants cut him off at a traffic light
near the bank, almost hitting him. (As
the car passed him, he noticed that one
of the two occupants had braided hair.)
Sieger had pulled his car over when he
saw the men back their car up to the bank
entrance and enter the bank, leaving the
car doors open. He noticed one of the
defendants put something over his head as
they walked into the bank. By the time
Thomas and Ledford returned to their car,
Sieger had already dialed 911 on his cell
phone to report his suspicion that a
robbery was underway. He saw that one of
the men was carrying a bag, the other a
gun. As the defendants proceeded to flee
the scene in their car, Sieger followed
them in his own vehicle. Moments later he
saw the defendants pull into the parking
lot of an apartment complex, access the
trunk of a beige- or champagne-colored
Cadillac Seville, and then continue their
flight in the Cadillac. He reported this
to the 911 dispatcher, with whom he had
remained on the line, and resumed
pursuit. Sieger lost sight of the
Cadillac briefly during the chase, but
subsequently re-acquired it. (He
recognized the car by its damaged
driver’s-side door.)
Meanwhile, the police had been apprised
over the radio of what Sieger had
observed. Detective Mack Page of the Fort
Wayne Police Department spotted the
Cadillac and pulled his vehicle behind
it. Page activated his emergency lights
and siren. Sieger subsequently reported
to the 911 dispatcher that a police car
had pulled in between his own car and the
Cadillac he was following. This
information was in turn broadcast by the
police dispatcher, and Page heard the
report. At this point, the Cadillac was
stopped for a red traffic right. After
Fort Wayne police officer Darryl Caudill
and Indiana State Trooper Daniel Taylor
pulled up and joined Page, the three
officers stepped out of their cars,
pointed their guns at the Cadillac, and
ordered the occupants out of the vehicle.
This took place eight minutes after the
robbery occurred.
One at a time, Ledford and Thomas
stepped out of the Seville with their
arms raised. Page took custody of a gun
that was tucked into Thomas’ belt. The
police placed the defendants under
arrest, handcuffed them, and placed them
in police cars. Sieger subsequently
identified Ledford and Thomas as the two
men he had seen leaving the bank. He made
that identification based on their
clothes and Thomas’ braided hair.
With Thomas and Ledford in custody, the
officers shifted their attention to the
Cadillac. Purportedly for their own
safety and to confirm that there was
neither an additional suspect nor a
hostage in the trunk of the car, the
officers decided to inspect it. Fort
Wayne police detective Wayne Kelly opened
the trunk while Page, Taylor, and Caudill
(and possibly other officers) stood by
with their guns aimed at it. No person
was discovered inside, and the trunk was
closed after a moment. While the trunk
was open, however, the officers
collectively noticed that it contained a
gun, a bag containing loose U.S.
currency, a hockey mask, and a black knit
cap. Kelly subsequently opened the trunk
for a second time to show another officer
where the second gun was and then re-
closed it after being admonished by his
superiors.
The officers later obtained a search
warrant for the car. In the passenger
compartment of the Cadillac, the police
discovered a black stocking cap with a
pair of gloves and a blue head covering
balled up inside of the cap, a black
hooded sweatshirt, and a pair of white
gloves. Within the trunk, they found a
handgun, a knit cap with eye slits, a
hockey mask, and a plastic bag containing
$6,537 in cash, including $40 in bait
money. A grand jury eventually indicted
Ledford and Thomas on the robbery and
firearm charges.
Ledford and Thomas moved unsuccessfully
to suppress the evidence seized from the
trunk of the Cadillac. They argued that
the police officers lacked the probable
cause necessary to make their initial
warrantless inspection of the trunk. But
after an evidentiary hearing, Judge Lee
concluded that the facts known to the
officers by the time the trunk was opened
supplied probable cause to believe that
the trunk contained contraband and/or
evidence of the bank robbery.
Alternatively, the judge believed that
the possibility that there might be a
firearm and/or another suspect or hostage
within the trunk justified the
warrantless search. The contents of the
trunk were therefore admitted at trial,
and as we have noted, a jury found both
Ledford and Thomas guilty.
Judge Lee sentenced Ledford and Thomas
to prison terms of 147 months, and 181
months, respectively. The pre-sentence
reports indicated that the defendants had
injured the bank employee and customer,
rendering a two-level increase in the
sentencing level appropriate pursuant to
section 2B3.1(b)(3)(A) of the Sentencing
Guidelines. The defendants objected to
the enhancement, but after briefing and
the presentation of testimony the court
overruled the objections in a written
opinion. Judge Lee sentenced each
defendant at the high end of the
sentencing range in view of the ruthless
manner in which the men had treated the
patrons and employees of the bank.
II.
A. Motion to Suppress
Ledford and Thomas contend that the
preliminary, warrantless inspection of
the trunk of their automobile violated
their rights under the Fourth Amendment.
After an evidentiary hearing, Judge Lee
concluded that the search was supported
on either of two grounds: (1) the
officers conducting the search had
probable cause to believe that the trunk
of the automobile contained evidence of
the bank robbery; and (2) the possibility
that there might be a firearm in the
trunk of the car amounted to an exigent
circumstance permitting the search, as
did the possibility that an accomplice or
hostage might be secreted in the trunk.
R. 49 at 6-9. As we noted above,
Detective Kelly actually opened the trunk
of the car not once, but twice, before a
search warrant was obtained. Judge Lee
believed that probable cause supported
the second as well as the first search of
the trunk, id. at 10, but that in any
event the second search yielded nothing
that the first had not already revealed,
rendering the fruits of the latter search
admissible under the independent source
rule, id. at 10-11 (citing Nix v.
Williams, 467 U.S. 431, 104 S. Ct. 2501
(1984), and United States v. Gravens, 129
F.3d 974, 981 (7th Cir. 1997), cert.
denied, 523 U.S. 1035, 118 S. Ct. 1333
(1998)). The defendants do not contest
the judge’s reasoning as to this second
search. Therefore, we need only consider
whether the police were justified in
opening the trunk of the defendants’ car
in the first instance. Our review is, of
course, de novo. Ornelas v. United
States, 517 U.S. 690, 116 S. Ct. 1657
(1996).
As all parties agree, a police officer
may search an automobile without a
warrant, so long as the search is
supported by probable cause. See, e.g.,
Maryland v. Dyson, 527 U.S. 465, 466-67,
119 S. Ct. 2013, 2014 (1999) (per
curiam); Wyoming v. Houghton, 526 U.S.
295, 300-01, 119 S. Ct. 1297, 1300-01
(1999). "Probable cause to search exists
if, given the totality of the
circumstances, there is ’a fair
probability that contraband or evidence
of a crime will be found in a particular
place.’" United States v. Young, 38 F.3d
338, 340 (7th Cir. 1994), quoting
Illinois v. Gates, 462 U.S. 213, 238, 103
S. Ct. 2317, 2332 (1983); United States
v. Patterson, 65 F.3d 68, 71 (7th Cir.
1995), cert. denied, 516 U.S. 1061, 116
S. Ct. 740 (1996); see also Brinegar v.
United States, 338 U.S. 160, 175-76, 69
S. Ct. 1302, 1310-11 (1949). An
automobile search justified by probable
cause may extend to any part of the
vehicle in which evidence or contraband
might be concealed, including, of course,
the trunk of the car. See Houghton, 526
U.S. at 300-01, 119 S. Ct. at 1300-01;
United States v. Ross, 456 U.S. 798, 820-
21, 102 S. Ct. 2157, 2170-71 (1982).
Here, Judge Lee concluded that probable
cause supported the decision to open and
inspect the trunk of the defendant’s
automobile. In so concluding, the judge
focused on what was known not to
Detective Kelly, who did not testify at
the suppression hearing, but to Detective
Page, who was present at the scene and
had his gun pointed at the trunk when
Kelly opened it.
Detective Page knew the following from
information disseminated by Police
Dispatch: the Standard Federal Bank had
been robbed at gunpoint; the robbers were
two black males; the robbers had changed
cars to a champagne-colored Cadillac; the
robbers had opened the trunk of the
Cadillac; a citizen was following the
robbers from the robbery scene and
relaying information by cell phone; the
Cadillac was traveling in the same
direction and same road as the Cadillac
Detective Page had spotted; the Cadillac
he was following contained two black
males; and at the time Detective Page
activated his lights and siren, the
citizen on the cell phone reported that a
police car was now in between the
Cadillac and the citizen. After stopping
the Cadillac, Detective Page found that
one of the suspects was in possession of
a handgun.
R. 49 at 7-8. This information, Judge Lee
reasoned, supplied the officers jointly
with "plenty of probable cause" to
believe that the trunk of the Cadillac
contained the stolen money and other
evidence of the robbery. Id. at 8.
The flaw in the district judge’s
rationale, as the defendants see it, lies
in its focus on what Page knew, as
opposed to Kelly. It was Kelly who opened
the trunk of the car, Ledford and Thomas
emphasize. What Page knew was therefore
irrelevant, because he did not conduct
the search. And because Kelly did not
testify at the suppression hearing, the
record tells us nothing about what he
knew. The government responds that it is
not Kelly’s knowledge alone, but "the
collective knowledge of the law
enforcement officers" that the court must
look to in determining whether probable
cause existed to conduct the search.
Government Br. 17; see, e.g., Tangwell v.
Stuckey, 135 F.3d 510, 517 (7th Cir.
1998); United States v. Nafzger, 974 F.2d
906, 910-16 (7th Cir. 1992); United
States v. Edwards, 885 F.3d 377, 382 (7th
Cir. 1989); United States v. Rodriguez,
831 F.2d 162, 165-66 (7th Cir. 1987),
cert. denied, 485 U.S. 965, 108 S. Ct.
1234 (1988). But according to Leford and
Thomas, the collective knowledge of Page
and Kelly’s other colleagues will not
validate the search absent some evidence
that this knowledge was communicated to
Kelly. See Edwards, 885 F.2d at 382.
We reject the defendants’ argument, for
two reasons. First, Ledford and Thomas
have never asserted, until now, that the
validity of the search turns on Kelly’s
knowledge alone. Although it was quite
clear from the hearing below that the
government was relying on the knowledge
of Kelly’s fellow officers to establish
probable cause (see Tr. Feb. 27, 1998;
see also R. 48 at 5-6), the defendants
never suggested that what those officers
knew must be disregarded (see R. 45).
Consequently, the district court was
never asked to consider the extent to
which Kelly was acting based on the
collective knowledge of his colleagues.
Second, the record makes clear that Kelly
and the other officers jointly conducted
the search of the automobile trunk. That
it happened to be Kelly who actually
opened the trunk does not necessarily
signify that he alone conducted the
search, rendering his knowledge the sole
relevant subject of inquiry. On the
contrary, the record reveals that as
Kelly opened the trunk, Page and at least
two other officers stood nearby with
their guns pointed at the trunk, lest an
accomplice be discovered inside.
Moreover, Page and two other officers
described what they observed inside the
trunk once Kelly had opened it. These
facts suggest that the officers were
acting jointly in the search of the
trunk, and indeed the defendants point to
nothing that suggests otherwise. Because
the search was a joint endeavor, the
court may properly consider what Page and
the other officers knew. See Edwards, 885
F.2d at 383 (imputing knowledge of one
arresting officer to another, "because
they made the arrest together"). Were it
otherwise, the validity of such jointly-
conducted searches might turn on the
fortuity of which officer happened to
open a trunk or door, notwithstanding the
fact that he and his colleagues were
acting in concert. As there is no dispute
that the facts known to Page and the
others supplied probable cause to search
the trunk, Judge Lee was correct to
conclude that probable cause supported
the search.
Having affirmed the probable cause
determination, we need not consider
whether exigent circumstances permitted
the search or, alternatively, whether the
evidence discovered within the trunk
would inevitably have been discovered by
way of an inventory search, as the
government also asserts.
B. Sentencing Enhancement for Injury
Inflicted by Gun
In calculating the sentencing range for
each defendant, the probation officer
proposed, and the district court applied,
a two-level enhancement pursuant to
Guidelines section 2B3.1(b)(3)(A) because
the defendants had inflicted bodily
injury upon one or more persons./1
Ledford and Thomas objected to the
enhancement, but after taking testimony
on the subject, the court concluded that
both the bank customer, McAfee, and the
savings counselor, Arnold, had suffered
"bodily injuries" sufficiently serious to
warrant the enhancement. In a written
opinion, the court reasoned:
Ledford makes reference to the definition
of bodily injury set forth in U.S.S.G.
sec. 1B1.1, commentary B, identifying
bodily injury as "any significant injury;
e.g., an injury that is painful and
obvious, or is of [a] type for which
medical attention ordinarily would be
sought." Memorandum at 1-2. However,
Ledford proceeds to admit that McAfee
received medical treatment. Id. at 2. For
its part, the Government notes that
McAfee, after being struck in the chest
with a firearm, suffered chest pain and
had to be transported to a hospital where
he underwent several hours of tests.
Memorandum at 3. Arnold’s injuries
included bruises from being struck with a
gun in the head and rib area. Id. McAfee
and Arnold, then, suffered injuries that
were painful, obvious, and required
medical attention, meeting the criteria
in the definition Ledford himself offers.
Besides this, the Government provides
cases indicating that bumps and bruises
and injuries that don’t necessarily
require medical attention can constitute
bodily injury under U.S.S.G. sec.
2B3.1(b)(A) (United States v. Hamm, 13
F.3d 1126, 1127 (7th Cir. 1994)); so do
slaps in the face (United States v.
Greene, 964 F.2d 911, 912 (9th Cir.
1992)) and hitting someone’s head or hip
(United States v. Fitzwater, 896 F.2d
1009, 1012 (6th Cir. 1990). Memorandum at
3. The injuries which McAfee and Arnold
suffered, then, fall well within the
range of bodily injuries contemplated by
U.S.S.G. sec. 2B3.1(b)(3)(A).
R. 75 at 5.
The defendants make two challenges to
the bodily injury enhancement. Ledford
and Thomas both argue in the first
instance that the court made no findings
of fact, linked to the record evidence,
in support of the enhancement. See Fed. R.
Crim. P. 32(c)(1). Thomas additionally
argues that because the court employed a
six-level enhancement pursuant to
Guidelines section 2B3.1(b)(2)(B) for the
use of a firearm during the robbery in
calculating his sentencing range (see
n.1, supra), the two-level enhancement
for the bodily injuries that he inflicted
with the gun amounts to impermissible
double-counting. We find no merit in
either argument.
We believe that the district court’s
written opinion, the relevant portion of
which we have recounted above, reflects
findings adequate to sustain the bodily
injury enhancement. It may be true, as
the defendants suggest, that the district
court judge did not make formal, explicit
findings of fact and did not specifically
cite the evidence that he chose to
credit. That level of detail is not
invariably required, however. See United
States v. McKinney, 98 F.3d 974, 981-82
(7th Cir. 1996), cert. denied, 520 U.S.
1110, 117 S. Ct. 1119 (1997). There can
be no doubt in this case that the court
found the defendants responsible for
assaulting both McAfee and Arnold, and
further found that these assaults
resulted in injuries that were
sufficiently "significant" to justify
imposition of the two-level enhancement
under section 2B3.1(b)(3)(A). See R. 75
at 5; see also Ledford Sentencing Tr. 6,
Thomas Sentencing Tr. 10. Further,
although the court’s opinion makes
references to the assertions that the
parties made in their briefs, we reject
the defendants’ suggestion that the court
relied on the briefs alone in imposing
the enhancement. The court obviously
heard and weighed the evidence presented
to it; its citation to the parties’
briefs simply reflects a careful and
balanced consideration of the parties’
arguments. Finally, although the
defendants posit that the court may have
made findings that are inconsistent with
the record evidence, we are satisfied
that any discrepancies are immaterial. In
particular, although the record does not
indicate that Thomas actually struck
Arnold in the head with his gun,/2 and
although McAfee arguably was merely
examined and observed when hospitalized,
rather than "treated" (a point we do not
reach), the record nonetheless
establishes that McAfee was struck in the
chest, and that Arnold was shoved against
the vault door jamb, and that both were
injured as a result--Arnold suffered
bruising on her side and arm, and McAfee
suffered a contusion on his chest. Our
precedents, as the district court
recognized, make clear that such injuries
are cognizable as significant bodily
injuries for which the enhancement may be
imposed. See United States v. Hargrove,
201 F.3d 966, 969-70 (7th Cir. 2000);
United States v. Pandiello, 184 F.3d 682,
685-86 (7th Cir. 1999); Hamm, 13 F.3d at
1127-28.
Imposition of the bodily injury
enhancement, in addition to the
enhancement for "otherwise using" a
firearm, does not amount to impermissible
double-counting as Thomas argues. As our
opinion in United States v. Swoape, 31
F.3d 482, 483 (7th Cir. 1994),
recognizes, section 2B3.1(b)(2) focuses
on the use of the firearm (or another
dangerous weapon), without regard to
whether or not injury results. Accord
United States v. Perkins, 89 F.3d 303,
310 (6th Cir. 1996). By contrast, section
2B3.1(b)(3) is quite obviously concerned
with the consequences of a defendant’s
conduct. See Swoape, 31 F.3d at 483.
Thomas could have "used" his firearm in a
way that injured no one. The fact that
his use resulted in significant injuries
to both McAfee and Arnold justifies the
additional enhancement pursuant to the
bodily injury guideline.
III.
We AFFIRM the defendants’ convictions and
sentences.
/1 Where, as here, the defendant has been convicted
of using or carrying a firearm during and in
relation to a crime of violence in violation of
section 924(c) as well as the underlying crime of
violence itself (in this case, bank robbery),
section 2K2.4, Application Note 2, of the
Guidelines calls upon the court to use two
alternate means of calculating the sentencing
range. The purpose of this exercise is to ensure
that the defendant does not receive a more
lenient sentence by virtue of his additional
conviction under section 924(c) than he would if
convicted of the underlying offense alone. See
U.S.S.G. sec. 2K2.4 comment. (n.2) (1998); United
States v. Patterson, 2000 WL 706020, at *9-*10
(7th Cir. June 1); United States v. Seawood, 172
F.3d 986, 990 (7th Cir. 1999).
In the absence of the section 924(c)
conviction, the court would normally enhance the
offense level for the underlying crime of
violence based on the defendant’s use of the
firearm. If the defendant has also been convicted
under section 924(c), however, these enhancements
will not apply, because the statute mandates a
60-month consecutive sentence for the firearm
conviction. See sec. 2K2.4(a) & comment. (n.2);
Patterson, 2000 WL 706020, at *9. Yet, in a few
cases, the enhancements would actually lengthen
the defendant’s sentence by more than the 60
months that the statute imposes. Id. This is what
presents the possibility of a lesser sentence by
virtue of the additional conviction under section
924(c). Id. at *10.
Thus, where the underlying crime is bank
robbery, as it is here, the court must first
ascertain what the offense level would be
pursuant to the robbery guideline, section 2B3.1,
exclusive of any of the firearms-related
enhancements specified in subsections (b)(2)(A)
through (F) of the guideline; the court then adds
to the resulting sentencing range the mandatory
sentence of 60 months specified by 18 U.S.C. sec.
924(c)(1)(A)(i). The court must next calculate
what the offense level and resulting sentencing
range would be under section 2B3.1 including any
of the firearms-related enhancements called for
in subsections (b)(2)(A) through (F); and in this
calculation the mandatory sentence of 60 months
required by section 924(c)(1)(A)(i) is
disregarded. See sec. 2K2.4, comment. (n.2);
United States v. Triplett, 104 F.3d 1074, 1081
(8th Cir.), cert. denied, 520 U.S. 1236, 117 S.
Ct. 1837 (1997), and cert. denied, 520 U.S. 1270,
117 S. Ct. 2445 (1997).
If, as was true in this case, the first method
of calculating the offense level results in a
lower sentencing range than the second, then the
court may depart upward in order to correct the
disparity. sec. 2K2.4, comment. (n.2); Patterson,
2000 WL 706020, at *10. Here, the district court
departed upward by one level in Ledford’s case
and by two levels in Thomas’ case to achieve that
end.
The bodily injury enhancement that we address
here was among the enhancements that the district
court applied when it calculated what the
sentencing range for each defendant would be in
the absence of the section 924(c) conviction. The
enhancement therefore contributed to the district
court’s decision to depart upward. See R.75 at 6-
10.
/2 The summary of the offense conduct set forth in
the pre-sentence reports for both Ledford and
Thomas does state that Thomas struck Arnold in
the head with the gun. Ledford PSR para. 10;
Thomas PSR para. 10. That summary however, is
based solely on the version of the offense that
the prosecutor supplied to the probation officer.
See Ledford PSR para. 5; Thomas PSR para. 5.
However, what Ms. Arnold testified at trial, and
what she told the probation officer, was that
Thomas shoved a gun against her head, not that he
necessarily pistol-whipped her. See Trial Tr.
Aug. 11, 1998 at 71; Ledford PSR para. 17; Thomas
PSR para. 17. Nonetheless, she did suffer
bruising and pain to her head as a result. See
Ledford PSR para.para. 10, 17; Thomas PSR
para.para. 10, 17.