United States v. Coleman

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ No. 95-50639 _______________ UNITED STATES OF AMERICA, Plaintiff-Appellant, VERSUS ANTHONY J. COLEMAN, Defendant-Appellee.

_________________________ Appeal from the United States District Court for the Western District of Texas (W-94-CR-97-6) _________________________ August 9, 1996 Before KING, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:* Anthony Coleman appeals a sentence imposed for armed bank

robbery. Finding no reversible error, we affirm.

I.

In August 1994, Coleman and eleven associates formed a plan to * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. rob the Normangee State Bank in Normangee, Texas. He was familiar

with both Normangee and the bank, and he helped to develop the plan

by providing information about the bank.

On the morning of the robbery, the group drove from Houston to

Normangee to execute their scheme. They took three cars: an

Explorer, an Escort, and an Accord. They stopped at a cemetery

outside Normangee to formulate final plans. Those who planned to

enter the bank during the course of the robbery donned gloves, ski

masks, bandannas, and bullet proof vests; many were also heavily

armed. Coleman was not armed, as he was not to accompany the group

to the bank.

Pursuant to the plan, Coleman and one associate, James

Hoskins, remained at the cemetery in the Explorer, while the others

went to the bank in the other vehicles around 8:15 a.m. When they

discovered that the bank was not yet open, they returned to the

cemetery. Although Coleman and Hoskins had left the cemetery to

avoid suspicion, they soon returned.

After some discussion, the entire group went back into town,

but the bank was still closed. They again returned to the cemetery

to regroup. Frustrated that the bank was not yet open, they

decided to buy beer at a convenience store. One member of the

group, Steven Thomas, proposed to rob the convenience store and

kill everyone inside so there would be no witnesses. When no one

would help him rob the store, however, they returned to the

cemetery.

2 The entire group again decided to drive to the bank. By this

time, the bank was open, but Thomas entered the bank prematurely.

This created some confusion: Five members of the group followed

Thomas into the bank a few minutes later, but Coleman and Hoskins,

who were in the Explorer, left the scene along with those in the

Escort. When Thomas and his five associates exited the bank after

completing the robbery, only the Accord remained. They were forced

to pile into the Accord, two of them riding in the trunk.

As the group in the Accord returned to the cemetery, they saw

another car enter the cemetery ahead of them. Recognizing that

they needed another vehicle, one member of the group requisitioned

the car by killing its driver, Ruby Parker. Now equipped with two

vehicles, they left Normangee and were arrested shortly thereafter.

Coleman pleaded guilty to armed robbery. Based on Parker’s

murder, the district court calculated the applicable sentencing

range at 360 months to life and sentenced Coleman to 300 months,

the statutory maximum for bank robbery.

II.

Coleman argues that the district court erred by taking into

account Parker’s murder when calculating his sentence.1 The 1 Coleman pleaded guilty to bank robbery, not homicide. The guidelines provision for robbery, however, contains a cross-reference to the homicide provision. U.S.S.G. § 2B3.1(c)(1). The cross-reference requires that the court apply the guidelines provisions governing homicide rather than robbery “[i]f a victim was killed under circumstances that would constitute murder under 18 (continued...)

3 guidelines provide that when a defendant engages in a jointly

undertaken criminal activity, his sentence should be calculated

based on “all reasonably foreseeable acts and omissions of others

in furtherance of the jointly undertaken criminal activity.”

U.S.S.G. § 1B1.3(a)(1)(B). Coleman urges us that the district

court erred for three reasons: (1) Parker’s murder was not

reasonably foreseeable; (2) the murder was not within the scope of

the jointly-undertaken criminal activity, and (3) he withdrew from

the conspiracy before the murder occurred.

The district court made factual findings that Parker’s murder

was a reasonably foreseeable result of the jointly undertaken

criminal activity and that Coleman did not withdraw before the

murder occurred. We must affirm these findings unless they are

clearly erroneous. United States v. Puig-Infante, 19 F.3d 929, 942

(5th Cir.) (stating that findings of fact made in determining

relevant conduct will be affirmed unless clearly erroneous), cert.

denied, 115 S. Ct. 180 (1994). A factual finding that "is

plausible in light of the record read as a whole" is not clearly

erroneous. Id.

A.

Coleman argues that Parker’s murder was not a reasonably 1 (...continued) U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.” Id.

4 foreseeable act in furtherance of the bank robbery.2 We disagree.

Coleman’s associates were heavily armed when they set out to rob

the bank. Before the group entered the bank, various members

expressed a willingness to use their guns if anything went wrong.

One even proposed robbing a convenience store and killing the

occupants. In light of these facts, we do not believe the

district court erred in finding Parker’s murder to be reasonably

foreseeable.

B.

Coleman also asserts that the district court erred in finding

the jointly undertaken criminal activity to be bank robbery. He

urges that he only jointly undertook to provide the group with

information about the bank and to travel to Normangee on the day of 2 The guidelines commentary provides two relevant illustrations:

[T]wo defendants agree to commit a robbery and, during the course of that robbery, the first defendant assaults and injures a victim. The second defendant is accountable for the assault and injury to the victim (even if the second defendant had not agreed to the assault and had cautioned the first defendant to be careful not to hurt anyone) because the assaultive conduct was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense).

. . .

Defendant C is the getaway driver in an armed bank robbery in which $15,000 is taken and a teller is assaulted and injured. . . . Defendant C is accountable for the injury to the teller under subsection (a)(1)(B) because the assault on the teller was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense).

§ 1B1.3, comment. (n.2).

5 the robbery; he maintains that he did not jointly undertake bank

robbery.

We are not persuaded. The guidelines define “jointly

undertaken criminal activity” to include “a criminal plan, scheme,

endeavor, or enterprise undertaken by the defendant in concert with

others, whether or not charged as a conspiracy.” U.S.S.G. § 1B1.3,

comment. (n.2). The guidelines further note that in determining

the scope of the jointly-undertaken criminal activity, a court

should consider the “objectives embraced by the defendant’s

agreement.” Id.

In this case, the jointly undertaken activity was bank

robbery. Coleman’s role may have been limited to providing

information and traveling to Normangee on the day of the robbery,

but he did so with the obvious purpose of helping the entire group

to rob the bank.

C.

Coleman also maintains that he should not be held accountable

for Parker’s murder because he withdrew from the conspiracy before

the murder occurred. The district court rejected this argument on

the ground that Coleman did not perform any affirmative act

demonstrating his withdrawal. Coleman concedes that some affirma-

tive act was necessary but contends that he performed such an act

when he accepted Hoskins’s invitation to return to Houston with 6 anyone who did not wish to participate in the robbery.

The district court’s finding was not clearly erroneous. The

only evidence Coleman offered to support his claim of withdrawal

was Hoskins’s testimony at sentencing that before the group left

the cemetery, he extended an invitation to return to Houston with

anyone who did not wish to participate in the robbery, and Coleman

accepted the invitation. The district court gave no credence to

Hoskins’s testimony, which directly conflicted with the accounts

provided by Hoskins’s codefendants. Furthermore, after Hoskins and

Coleman purportedly withdrew at the cemetery, they accompanied the

group to the bank.

Credibility determinations are peculiarly within the province

of the district court. Kendall v. Block, 821 F.2d 1142, 1146 (5th

Cir. 1987). We therefore conclude that the district court did not

clearly err in finding that Coleman did not withdraw from the

robbery before the murder.

III.

Coleman contends that the district court erred by relying upon

testimony from his codefendants' trial at sentencing without giving

him notice and an opportunity to respond. We conclude that Coleman

did receive adequate notice and opportunity to respond, because the

testimony appeared in his presentence report (“PSR”).

We have consistently held that a defendant is entitled to 7 notice of any evidence that will be used against him at sentencing,

but only when the evidence does not appear in the PSR.3 The fact

that evidence appears in the PSR is enough to place a defendant on

notice that the district court may rely on that evidence in

sentencing, and a defendant has an opportunity to respond to any

such evidence. See FED. R. CRIM. P. 32(b)(6)(B), (c)(1) (providing

means for defendant to challenge information in PSR). There is no

need for the court to provide additional notice simply because the

evidence consists of codefendants’ testimony.

IV.

Coleman maintains that the district court erred by applying a

three-level reduction for acceptance of responsibility to his base

offense level rather than to the statutory maximum sentence. The

court first calculated a base offense level of 43. It then granted

the government’s § 3E1.1 motion for a three-level reduction for

acceptance of responsibility. See U.S.S.G. § 3E1.1(a). This left

Coleman with an offense level of 40 and a corresponding sentencing

range of 360 months to life. The statutory maximum sentence for

bank robbery, however, is 300 months, 18 U.S.C. § 2113 . Because 3 See, e.g., United States v. Landry, 903 F.2d 334, 340 (5th Cir. 1990) (“[I]n the event that the district court intends to rely on such [matters outside the PSR] in making an upward adjustment, the district court must provide defense counsel with an opportunity to address the court on this issue.”); United States v. Otero, 868 F.2d 1412, 1415 (5th Cir. 1989) (“If, however, the court intends to rely on any such additional factor [not in the PSR] to make an upward adjustment of the sentence, defense counsel must be given an opportunity to address the court on the issue.”).

8 his sentencing range exceeded the statutory maximum, Coleman did

not receive any benefit from the § 3E1.1 reduction.

Coleman failed to raise this issue at sentencing. As a

result, we may not vacate his sentence unless the sentencing court

committed plain error. United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994) (en banc) (citing United States v. Olano, 507 U.S. 725, 731-37 (1993)), cert. denied, 115 S. Ct. 1266 (1995).

It was not plain error for the district court to apply the

§ 3E1.1 departure to Coleman’s base offense level rather than to

the statutory maximum. He fails to point to any authority

requiring that such departures be applied in the manner he

proposes. In fact, the guidelines appear to require the opposite

result. Section 1B1.1 instructs sentencing courts first to

determine the appropriate base offense level, then to apply any

adjustment for acceptance of responsibility, and finally to

consider any statutory maximum.4 4 Section 1B1.1 instructs courts to calculate a sentence in the following manner:

(b) Determine the base offense level and apply any appropriate specific offense characteristics contained in the particular guideline in Chapter Two in the order listed.

. . . .

(e) Apply the adjustment as appropriate for the defendants’s acceptance of responsibility from Part E of Chapter Three.

. . . .

(h) For the particular guideline range, determine from Parts (continued...)

9 The judgment of sentence is AFFIRMED.

4 (...continued) B through G of Chapter Five the sentencing requirements and options related to probation, imprisonment, supervision conditions, fines, and restitution.

U.S.S.G. § 1B1.1; see also United States v. Rodriguez, 64 F.3d 638, 641 (11th Cir. 1995) (noting that guidelines require § 3E1.1 reductions to base offense level rather than to the statutory maximum sentence).

This case involves a different issue from that decided by Rodriguez. Rodriguez held that a district court may depart downward from a statutory maximum when the maximum nullifies any benefit the defendant would receive from a § 3E1.1 departure, though such a departure is completely discretionary. Id. at 642. In contrast, Coleman argues that the district court simply misapplied the guidelines as a mater of law by applying the § 3E1.1 departure before considering the statutory maximum, an argument Rodriguez rejected. Id. at 641. Coleman never urged the district court to make a discretionary departure to compensate him for the fact the statutory maximum deprived him of receiving any benefit from the § 3E1.1 departure. Nor did the district court--like the sentencing court in Rodriguez--state that it had no discretion to make such a departure. Id. at 641 n.3.

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