Filed: Mar. 11, 2013
Latest Update: Mar. 28, 2017
Summary: in the bank. § 1B1.2(a).United States v. McEnry, 659 F.3d 893, 899 (9th Cir.5, As this discussion should make clear, we do not take, issue with the government's assertion that, when selecting the, most appropriate guideline, the sentencing court may look beyond, the name of the charged offense;
United States Court of Appeals
For the First Circuit
No. 11-1267
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL ALMEIDA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Stahl, Circuit Judges.
Barbara J. Sweeney for appellant.
Robert E. Richardson, Assistant United States Attorney, with
whom Carmen Ortiz, United States Attorney, was on brief, for
appellee.
March 11, 2013
STAHL, Circuit Judge. Daniel Almeida was indicted and
tried for bank burglary under 18 U.S.C. § 2113(a). The jury found
him guilty. On the basis of the evidence adduced at trial, the
district court applied a sentencing guideline intended for cases of
robbery, rather than the burglary guideline Almeida proposed. The
resulting sentence was roughly twice what it would have been under
the burglary guideline. Almeida now appeals that sentence, arguing
that it was unconstitutional for the district court to sentence him
under a guideline intended for robbery, given the government's
failure to charge, try, and convict him under that theory of his
crime. Without reaching Almeida's constitutional claim, we remand
for resentencing because, under application note 1 to U.S.S.G.
§ 1B1.2 and the introduction to the guidelines' Statutory Appendix,
where the guidelines specify more than one offense guideline for a
particular statutory offense and no plea agreement stipulates to a
more serious offense, the district court must select the most
appropriate guideline based only on conduct charged in the
indictment.
I. Facts & Background
On May 26, 2007, $308,505 in cash was stolen from the
East Cambridge Savings Bank on Highland Avenue in Somerville,
Massachusetts. The record reveals two rather different stories
about how this happened. In one telling, Almeida forced the bank's
head teller, Jennifer McNamara (then Jennifer DaSilva), to open the
-2-
bank vault at gunpoint, and then tied her to a chair and absconded
in her car with the money. In the other version of events, the
heist was an inside job: McNamara was only pretending to be
coerced, and actually planned the theft with Almeida and Jean
Thermitus, a fellow bank employee with whom she was having an
affair.
On July 9, 2008, a federal grand jury returned an
indictment charging Almeida with "enter[ing] and attempt[ing] to
enter a bank, to wit, the East Cambridge Savings Bank . . . with
intent to commit in such bank a felony affecting such bank in
violation of a statu[t]e of the United States and a larceny" in
violation of 18 U.S.C. § 2113(a). At Almeida's subsequent trial,
the jury heard testimony supporting both accounts of the heist.
McNamara testified that, two days before the theft, her husband
kicked her out; the next day, she went to stay with Thermitus. The
night before the theft, she stopped at a liquor store to make some
purchases; when she got back in the car, a man got in the back seat
and put what felt like a gun to her head. He told her that an
accomplice had her children and made her surrender her purse and
cell phone. He initially wanted McNamara to take him directly to
the bank, but, upon hearing that she could not access the vault
until morning, made her spend the night in the car. In the
morning, they drove to the bank, where she disarmed the alarm and
let him in. He had her put tape over the lens of a security camera
-3-
and put cash from the vault into two large bags. He then taped her
to a chair and left.
Amine Maach, a friend of Almeida's, testified that
Almeida had admitted his involvement in the theft to Maach a few
weeks after it happened. According to Maach, however, Almeida said
that "Jean" (Thermitus) and "the lady, the bank teller" (McNamara,
apparently) had planned the heist; the teller was only "act[ing]
like" she had been kidnapped. Almeida told Maach that he met the
teller the night before the theft, drove around until morning, and
then entered the bank with her, tied her up, and took the money.
The jury also heard testimony that Almeida's involvement,
whether as kidnapper or coconspirator, was supported by telephone
records and DNA evidence taken from the crime scene and McNamara's
car (which was recovered near Almeida's house). In its closing
argument, the government relied on this evidence and McNamara's
testimony to argue that Almeida "entered th[e] bank on the morning
of May 26, 2007 . . . with at least the intent to commit a larceny
in the bank." The government also argued at length that McNamara
was credible and that her version of events was accurate.
Nevertheless, the government said:
[Almeida] claimed it was an inside job. I
suggest to you it wasn't as far as [McNamara]
was concerned. . . . I suggest to you [the
evidence] doesn't show she was [involved].
But even if she was, it doesn't matter.
Whether she actually was in fear of her own
life and her kids' lives or whether she was
somehow a part of this, it doesn't change the
-4-
evidence against this defendant. It doesn't
change the evidence showing beyond any
reasonable doubt that he entered the bank that
day and that he did so with the intent to
commit a larceny. And whether she's part of
it or not part of it, the evidence still shows
beyond any reasonable doubt that that is the
case.
The government's argument was consistent with the language of the
indictment (described above). The jury found Almeida guilty.
In preparation for sentencing, the Probation Officer
prepared a presentence report (PSR) that identified the applicable
sentencing guideline as U.S.S.G. § 2B3.1, the "robbery" guideline,
with a base offense level of twenty. See id. § 2B3.1(a). Pursuant
to that guideline, the PSR recommended enhancements for taking the
property of a financial institution (two levels), brandishing a
weapon (three levels), abducting a person to facilitate the offense
(four levels), and taking more than $250,000 but less than $800,000
(three levels). Both the choice of the robbery guideline and the
application of the brandishing and abduction enhancements were
clearly based on McNamara's version of events. Almeida and the
government submitted sentencing memoranda; Almeida's objected to
the base offense level and enhancements recommended in the PSR.
At sentencing, Almeida explained the basis for his
objections, arguing that the government could have chosen to indict
and try him for robbery, but did not; it chose to proceed under a
burglary theory (which required only entry into the bank and not
violence or intimidation), making the imposition of a longer
-5-
sentence for robbery inappropriate. Thus, Almeida contended that
the burglary guideline, U.S.S.G. § 2B2.1, along with its different
(and lesser) enhancements, should apply. The government responded
that the court was allowed to apply the guideline "that most
closely captures the defendant's conduct," and argued in the
alternative that the court should vary the sentence upward from the
burglary guideline range anyway. After considering these
arguments, the district court concluded that the appropriate
guideline was § 2B3.1, the robbery guideline, "because, based upon
the evidence as the Court heard it" -- namely, McNamara's
testimony, which the court found credible -- "at least . . . a
preponderance of the evidence . . . [showed that] there was a
robbery involved here." Accordingly, the court applied the robbery
guideline and the four recommended enhancements, resulting in a
total offense level of thirty-two; with criminal history, the
guideline range was 151 to 188 months. The court, acknowledging
that Almeida's sentence under the burglary guideline "would be
about half of" the sentence under the robbery guideline, sentenced
him to 151 months' imprisonment and three years' supervised
release. This appeal followed.
II. Analysis
We review the district court's choice of guidelines in
this case de novo, and its attendant factual determinations for
-6-
clear error. United States v. Rodríguez-Adorno, 695 F.3d 32, 43
(1st Cir. 2012).1
The issue presented by Almeida's appeal -- whether, after
being convicted of violating 18 U.S.C. § 2113(a) in the manner
alleged in the indictment, he could be sentenced under the robbery
guideline (U.S.S.G. § 2B3.1) instead of the burglary guideline
(U.S.S.G. § 2B2.1) -- arises from the interaction of two facts:
that subsection 2113(a) can be violated in two markedly different
ways, and that multiple sentencing guidelines can apply to
convictions under that provision. To illustrate the impact of this
interaction on Almeida's sentence, we lay out the relevant language
in the statute and the guidelines.
Subsection 2113(a) provides:
Whoever, by force and violence, or by
intimidation, takes, or attempts to take, from
the person or presence of another, or obtains
or attempts to obtain by extortion any
property or money or any other thing of value
belonging to, or in the care, custody,
control, management, or possession of, any
bank . . . ; or
Whoever enters or attempts to enter any bank,
. . . , or any building used in whole or in
part as a bank . . . , with intent to commit
in such bank . . . , or part thereof, so used,
any felony affecting such bank, . . . and in
violation of any statute of the United States,
or any larceny--
1
The district court pointed out at sentencing that Almeida
had not filed formal objections to the PSR, but it treated his
sentencing memoranda as objections thereto.
-7-
Shall be fined under this title or imprisoned
not more than twenty years, or both.
18 U.S.C. § 2113(a). As its text makes clear, subsection 2113(a)
can be violated in two distinct ways: (1) bank robbery, which
involves taking or attempting to take from a bank by force,
intimidation, or extortion; and (2) bank burglary, which simply
involves entry or attempted entry into a bank with the intent to
commit a crime therein. (In either case, the bank must have been
federally insured, United States v. Judkins, 267 F.3d 22, 23 (1st
Cir. 2001), which was undisputedly true here.)
Presumably because subsection 2113(a) covers a variety of
conduct, the sentencing guidelines' Statutory Appendix lists four
guidelines sections as potentially applicable to a violation
thereof, two of which are the burglary (§ 2B2.1) and robbery
(§ 2B3.1) guidelines discussed above.2 See U.S.S.G. App'x A. In
this situation, the guidelines instruct the sentencing court to
"determine which of the referenced guideline sections is most
appropriate for the offense conduct charged in the count of which
the defendant was convicted." Id. § 1B1.2 cmt. n.1; accord id.
App'x A, intro.
2
The other two listed guidelines, which neither party
suggests should apply here, are U.S.S.G. § 2B1.1, which reaches
"Larceny, Embezzlement, and Other Forms of Theft," and U.S.S.G.
§ 2B3.2, which covers "Extortion by Force or Threat of Injury or
Serious Damage." Id. App'x A.
-8-
The gist of this structure is that a violation of
subsection 2113(a) can be accomplished in two ways and punished in
four ways (only two of which, burglary and robbery, are relevant
here). In this case, the district court chose the robbery
guideline instead of the burglary guideline because it credited
McNamara's trial testimony, which described conduct that amounted
to bank robbery, i.e., taking from a bank by force, violence, or
intimidation. The indictment, however, did not allege the use of
force, violence, or intimidation. Instead, the language of the
indictment's sole count closely tracked that of subsection
2113(a)'s bank burglary prong, alleging that Almeida "did enter and
attempt to enter a bank, to wit, the East Cambridge Savings Bank
. . . with intent to commit in such bank a felony affecting such
bank in violation of a statute of the United States and a larceny."
Thus, as the government acknowledged at trial, the jury could have
convicted Almeida of violating subsection 2113(a) in the manner
charged in the indictment, i.e., bank burglary, even if it
disbelieved McNamara's testimony that she was held at gunpoint.
According to Almeida, this outcome violates the constitutional
principle that "every defendant has the right to insist that the
prosecutor prove to a jury all facts legally essential to the
punishment." Blakely v. Washington, 542 U.S. 296, 313 (2004)
(emphasis omitted).
-9-
We need not reach Almeida's constitutional argument.
Instead, we hold that application note 1 to U.S.S.G. § 1B1.2 and
the introduction to the guidelines' Statutory Appendix required the
district court in this case to select the applicable guideline
based only on conduct charged in the indictment. As noted above,
application note 1 provides for cases where, as here, the Statutory
Index lists more than one guideline for a given offense, and the
defendant has not stipulated in a plea agreement to an offense more
serious than the offense of conviction. It reads:
In the case of a particular statute that
proscribes a variety of conduct that might
constitute the subject of different offense
guidelines, the Statutory Index may specify
more than one offense guideline for that
particular statute, and the court will
determine which of the referenced guideline
sections is most appropriate for the offense
conduct charged in the count of which the
defendant was convicted.
Id. § 1B1.2 cmt. n.1 (emphasis added).3 The introduction to the
Statutory Appendix contains the same instruction: "If more than one
guideline section is referenced for the particular statute, use the
guideline most appropriate for the offense conduct charged in the
count of which the defendant was convicted." Id. App'x A, intro.
3
"The Sentencing Commission's commentary, including the
application notes, is binding on the courts as long as it does not
conflict either with the sentencing guidelines themselves or with
some statutory provision." United States v. Carrasco-Mateo, 389
F.3d 239, 244 (1st Cir. 2004); see also United States v. Paneto,
661 F.3d 709, 717 (1st Cir. 2011). We interpret guidelines
commentary "using conventional methods of statutory construction."
United States v. Damon,
595 F.3d 395, 400 n.3 (1st Cir. 2010).
-10-
The natural reading of these provisions is that, when selecting the
"most appropriate" guideline, the sentencing court should look to
the conduct alleged in the indictment, and not to uncharged conduct
described in trial testimony. Cf. United States v. Bah, 439 F.3d
423, 427 (8th Cir. 2006) (holding that a "plain reading" of the
phrase "the conduct set forth in the count of conviction" as used
in U.S.S.G. § 2B1.1(c)(3) requires the sentencing court to look
only to the conduct alleged in the indictment). Indeed, § 1B1.2
itself uses the same phrase in this manner, calling for the
sentencing court to determine the guideline "applicable to the
offense of conviction (i.e., the offense conduct charged in the
count of the indictment or information of which the defendant was
convicted)." U.S.S.G. § 1B1.2(a).
In fact, the principal case on which the government
relies illustrates that the language of the indictment is the
proper basis for the most-appropriate-guideline determination. In
United States v. Sutton, 401 F. App'x 845 (4th Cir. 2010) (per
curiam), the defendants were, like Almeida, convicted of violating
subsection 2113(a) (although, unlike Almeida, they pled guilty).
One of the defendants argued, as Almeida does here, that the
district court erred in applying U.S.S.G. § 2B3.1 (robbery) rather
than U.S.S.G. § 2B2.1 (burglary). Id. at 847. The Fourth Circuit
explained that, in selecting the appropriate guideline, "the court
'should compare the [g]uideline texts with the charged misconduct,
-11-
rather than the statute (which may outlaw a variety of conduct
implicating several [g]uidelines) or the actual conduct (which may
include factors not elements of the indicted offense).'" Id.
(quoting United States v. Lambert, 994 F.2d 1088, 1092 (4th Cir.
1993)). Accordingly, the Sutton court went on to identify the
applicable guideline by examining the language of the indictment.
See id. at 847-48; see also United States v. Lewis,
161 F. App'x
322, 324 (4th Cir. 2006) (per curiam) (where the Statutory Index
identified more than one applicable guideline, the court conducted
"a comparison of the charged misconduct as described on the face of
the indictment with the guidelines," and rejected arguments based
on conduct not described in the indictment (emphasis added));
United States v. Johnson,
68 F. App'x 402, 405 (4th Cir. 2003) (per
curiam) (similar).4
Consequently, we think it clear that the district court
erred by selecting the guideline applicable to Almeida's crime on
the basis of conduct not alleged in the indictment. This
conclusion is bolstered by the fact that courts have consistently
read similar guidelines provisions to require that, "to the extent
4
Not every case to apply the most-appropriate-guideline
language has limited the inquiry to the conduct described in the
indictment, but those cases that have also looked to trial evidence
have not explained why doing so is authorized by the guidelines.
See United States v. Belfast, 611 F.3d 783, 825 (11th Cir. 2010)
(focusing on the conduct alleged in the indictment but also
discussing trial evidence); United States v. Valladares,
544 F.3d
1257, 1266 (11th Cir. 2008) (considering trial evidence).
-12-
the court is required to look to the facts to select a guideline,
the court is limited to the conduct charged in the indictment."
United States v. McEnry, 659 F.3d 893, 899 (9th Cir. 2011)
(applying U.S.S.G. § 2X5.1's "most analogous guideline" language);
see also, e.g., United States v. Takahashi,
205 F.3d 1161, 1166
(9th Cir. 2000) (interpreting the "most applicable" guideline
language in the pre-2000 version of § 1B1.2); United States v.
Jackson,
117 F.3d 533, 538 (11th Cir. 1997) (construing the
Statutory Index's now-defunct "atypical case" language). These
examples reflect the principle that, absent a stipulation or cross-
reference, "a sentencing court must, as required by [U.S.S.G.
§ 1B1.2](a), consider only 'the offense conduct charged in the
count of the indictment or information of which the defendant was
convicted' when making the choice-of-guideline determination."
Thomas W. Hutchison, et al., Federal Sentencing Law & Practice,
§ 1B1.2, cmt. (3)(a) (2013 ed.) (emphasis added) (quoting U.S.S.G.
§ 1B1.2(a)). To hold otherwise "would effectively undercut the
real offense/charge offense compromise struck by the Commission."
Id.5
5
As this discussion should make clear, we do not take
issue with the government's assertion that, when selecting the
"most appropriate" guideline, the sentencing court may "look beyond
the name of the charged offense"; that much is certainly true. We
part ways with the government only insofar as it contends that the
court may consider "underlying" conduct not alleged in the count of
the indictment of which the defendant was convicted.
-13-
Because the parties have not briefed the question of
which guideline applies under the proper standard, we believe the
most prudent course is to remand to the district court to consider
that question in the first instance. In doing so, the district
court should compare the guidelines listed in the Statutory Index
as potentially applicable to subsection 2113(a) with "the charged
misconduct as described on the face of the indictment." Lewis, 161
F. App'x at 324. Where "[n]either the text of the [guideline]
section nor its accompanying commentary offers further information
as to the types of conduct covered by the section," the district
court may "presume that [the] common understanding of
the[ specified] crimes applies." United States v. Dion, 32 F.3d
1147, 1149 (7th Cir. 1994) (finding that the defendant's "conduct
fit[] a common definition of embezzlement"); cf. Hutchison, et al.,
supra, § 2B2.1, cmt. 5 (discussing "the common-law definition of
burglary" and "the generic, contemporary meaning of burglary" in
determining what conduct lies within the heartland of § 2B2.1
(internal quotation marks omitted)).
In closing, we note that our reasoning is limited to the
question of what conduct a court may consider in determining the
"most appropriate" guideline pursuant to application note 1 to
§ 1B1.2 (or the identical language in the Statutory Appendix's
introduction). As noted above, we do not consider Almeida's
constitutional argument. We also do not consider whether the
-14-
district court could have departed upward to reach the same result
even if the robbery guideline did not apply; although the
government said so below, it has not pressed the point on appeal.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
III. Conclusion
For the foregoing reasons, we vacate Almeida's sentence
and remand this case to the district court for resentencing.
-15-
