Filed: Oct. 17, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 10-17-2003 USA v. Hawkins Precedential or Non-Precedential: Non-Precedential Docket No. 02-1672 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Hawkins" (2003). 2003 Decisions. Paper 200. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/200 This decision is brought to you for free and open access by the Opinions of the United Sta
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 10-17-2003 USA v. Hawkins Precedential or Non-Precedential: Non-Precedential Docket No. 02-1672 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Hawkins" (2003). 2003 Decisions. Paper 200. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/200 This decision is brought to you for free and open access by the Opinions of the United Stat..
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Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
10-17-2003
USA v. Hawkins
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-1672
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"USA v. Hawkins" (2003). 2003 Decisions. Paper 200.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/200
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 02-1672
UNITED STATES OF AMERICA
v.
JAMES C. HAW KINS,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Crim. No. 00-cr-00416-1)
District Judge: Hon. Herbert J. Hutton
ARGUED
February 13, 2003
Before: ALITO and M cKEE, Circuit Judges, and
SCHW ARZER, District Judge*
(Opinion filed: October 17, 2003)
Robert Epstein, Esq. (Argued)
Defender Association of Philadelphia
Federal Court Division
Curtis Center, Independence Square West
Suite 540 West
Philadelphia, PA 19106
Attorney for Appellant
Robert A. Zauzmer, Esq. (Argued)
Suite 1250
Sarah L. Grieb, Esq.
*
The Hon. William W. Schwarzer, United States District Judge for the Northern
District of California, sitting by designation.
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellee
OPINION
McKEE, Circuit Judge.
In his appeal, James C. Hawkins argues that the district court committed an error
of law in denying his motion for a diminished capacity downward departure pursuant to
U.S.S.G. § 5K2.13. W e disagree. We conclude instead that the district court properly
denied the departure. Accordingly, we will affirm.
I.
On July 19, 1999, Hawkins robbed the Prudential Savings Bank at 1834 Oregon
Avenue in Philadelphia, Pennsylvania. He also attempted to rob the Mellon/PSFS Bank
at 18 S. 52nd Street in Philadelphia. The first robbery occurred at approximately 9 a.m.
Hawkins entered the Prudential Savings Bank, approached a teller, handed her a bag and
told her to “[f]ill up the bag.” Hawkins yelled, “Fill up the bag. I want $100,000.” He
then jumped over the counter, grabbed the teller and pulled her to the ground. Hawkins
told everyone else to get down, and filled his bag with money from the teller’s drawer.
He then jumped back over the counter and left the bank with $22,538 in cash. As he
drove away he threw what he believed to be a “dye pack” out of his car window.
He then drove to the Mellon Bank on S. 52nd Street where he climbed over the
teller counter yelling: “Where are your keys?” The teller opened her drawer with her
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keys as Hawkins kept telling the teller, “I’m not playing with you.” Hawkins then went to
the next teller and made her take money from her drawer. However, an off-duty
Philadelphia Police Officer who happened to be using the bank’s ATM machine heard
someone say that the bank was being robbed, saw Hawkins behind the teller counter, and
arrested him.
Following his arrest Hawkins was examined for competency and found not
competent to stand trial. However, after being treated at a federal institution, Hawkins
was subsequently reevaluated and found competent.
Thereafter, a federal grand jury returned a two-count indictment, charging
Hawkins with bank robbery, in violation of 18 U.S.C. § 2113(a), and he pled guilty to that
indictment pursuant to a plea agreement. As part of the plea agreement, Hawkins and the
government agreed to disagree as to whether a downward departure was warranted under
U.S.S.G. § 5K2.13.
Prior to sentencing, the government filed a sentencing memorandum opposing a
downward departure for diminished mental capacity although the government agreed, for
purposes of sentencing, that Hawkins suffered from reduced mental capacity.
Nevertheless, it argued that Hawkins did not satisfy the conditions for such a departure
under U.S.S.G. § 5K2.13.
Not surprisingly, Hawkins’ sentencing memorandum asserted a different view
under § 5K.13. His memorandum included reports of the psychiatric examinations.
3
Hawkins also took the stand and testified in support of his requested departure at his
sentencing hearing. He admitted that he had jumped over the counter at the Prudential
Bank and that the teller was scared. Although he denied pushing the teller, his denial
contradicted other admissions he had previously made on the record. At his change of
plea hearing, the government had presented the factual basis for the guilty plea. In doing
so the prosecutor stated:
Christie Lamanna (ph), teller, Prudential Savings Bank . . .
would testify that on July 19, 1999, she was working as a
teller at the bank. Shortly after 9:00 a.m. a black male
approached her station, handed her a white plastic CVS bag
and told her to fill it up. The branch manager, Joanne
Valentino (ph), went to M s. Lamana’s teller station asking if
she could help him, and he responded by yelling, “Fill up the
bag, I want $100,000.” The individual then jumped over the
counter, grabbed Ms. Lamanna’s shirt and pulled her to the
ground. The individual told everyone in the teller area to get
down and the individual asked another teller, Elana Melardini
(ph), asked her where the money was. Ms. Melardini pointed
to her drawer, opened the drawer, filled the bag with the
money, and the individual then jumped over the counter and
left the bank.
App. at 131a. Following this summary, the court had asked Hawkins: “Mr. Hawkins, do
you understand and agree to the facts of the crimes as stated by the Assistant United
States Attorney?” App. at 115a, 134a. Hawkins had responded, “Yes, I do.” App. at
134a.
In addition, at his sentencing, Hawkins also acknowledged under oath that he had
told the truth at his change of plea hearing. App. at 158a. Moreover, the Presentence
4
Report (“PSR”) also stated that Hawkins jumped over the counter, grabbed the teller’s
shirt and pulled her to the ground, PSR ¶ 10, and Hawkins did not object to that portion of
the PSR at the sentencing hearing.
The district court was fully informed about Hawkins’ mental condition and
treatment. The evidence before the court included Hawkins’s statement to one of the
doctors examining him for a mental disorder that he had sought medical treatment at the
Veteran’s Administration Hospital prior to committing the bank robberies, but had never
followed through with any treatment. Hawkins had been medicated with Zyprexa and he
claims that the Zyprexa kept him from being jumpy and from hearing voices. However,
at one point, Hawkins also stated that he did not know why he was taking this medication.
One of the doctors who examined Hawkins stated:
Mr. Hawkins must stay on his medication and remain in
treatment whatever his legal disposition. He is non-psychotic
with the medication, although he was a bit disoriented to date
when I saw him. . . . Treatment will be long term and will
need to consist of both monitoring his behavior as well as
insuring his taking the medication on a regular basis.
App. at 76a.
The government also introduced the testimony of bank teller, Christie Lamana at
the sentencing hearing. She testified that on the day of the robbery, she was at her desk
when Hawkins approached. At first, she did not understand Hawkins and asked her
manager for assistance. When Lamana came back to her station, Hawkins jumped onto
and over the counter, grabbed Lamana and pushed her to the ground. Hawkins then went
5
into a teller drawer and took the money. He jumped back over the counter and left.
Lamana was on the ground crying while Hawkins was stealing the money from her
drawer. She testified that she felt seriously threatened by Hawkins. The government also
presented three surveillance photographs which depicted Hawkins at Lamana’s counter,
jumping over her counter, and taking money from the teller drawer.
The district court considered all of the evidence, including Hawkins’s testimony,
and denied Hawkins’s motion for a diminished mental capacity downward departure. It
found that “the standard has not been met and therefore I must deny the departure. . . .”
App at 170a. When asked which prong of § 5K2.13 was not met, the district court
responded, “The serious, the threat.” App. at 174a. The district court then sentenced
Hawkins to seventy-seven months imprisonment, 1 followed by three years of supervised
release. Hawkins was also ordered to pay a $200 special assessment.
This appeal followed.
II.
A sentencing court can depart from a defendant’s guideline range if the defendant
committed the charged offense while suffering from a significantly reduced mental
capacity;2 provided that none of the following conditions exist:
1
Hawkins’s sentencing range under the Sentencing Guidelines was 77 to 96 months.
PSR ¶ 80.
2
As noted above, the government conceded for sentencing purposes that Hawkins
suffered from reduced mental capacity.
6
(1) the significantly reduced mental capacity was caused by
the voluntary use of drugs or other intoxicants; (2) the facts
and circumstances of the defendant’s offense indicated a need
to protect the public because the offense involved actual
violence or a serious threat of violence; or (3) the defendant’s
criminal history indicates a need to incarcerate the defendant
to protect the public.
U.S.S.G. § 5K2.13. A defendant has the burden of proving entitlement to a departure by
a preponderance of the evidence. United States v. McBroom, 124 F.3d 533, 539 (3d Cir.
1997).
The district court found that Hawkins was not eligible for a departure because of
the second prong of § 5K2.13; the offense involved “a serious threat of violence.”
Hawkins argues that the district court erred as a matter of law in denying his request for a
diminished capacity departure pursuant to § 5K2.13(2) for two reasons.3 First, he argues
that it is not enough to preclude granting the departure based only on a “serious threat of
violence.” Rather, a “serious threat of violence” precludes a diminished capacity
departure only if the serious threat indicates a “need to protect the public.” Second, he
argues that the district court misinterpreted the phrase “serious threat of violence.”
Hawkins claims that the district court must make two separate factual findings
before it can deny a diminished capacity departure under the second prong of § 5K2.13.
3
We exercise plenary review of alleged sentencing errors based upon a mistake of law
or an incorrect application of the Sentencing Guidelines. United States v. Torres, 251
F.3d 138, 145 (3d Cir. 2000). However, where a district court correctly construes a
guideline, its findings of facts are reviewed for clear error. United States v. Vitale,
159
F.3d 810, 816 (3d Cir. 1998).
7
In his view, a “serious threat of violence” does not necessarily indicate a “need to protect
the public.” Therefore, a district court must find a “serious threat of violence” and it must
find a “need to protect the public.” According to this view, the district court is justified in
denying the departure only when both of these constituent parts of the second prong are
found as facts by the district court. He cites our decision in United States v. Askari, 159
F.3d 774 (3d Cir. 1998), to support this position.
At the outset, we note that Hawkins never raised this issue before the district court.
Therefore, his claim is reviewed only for plain error. United States v. Knight, 266 F.3d
203, 206 (3d Cir. 2001). However, there is no plain error here and Askari does not
support Hawkins’s argument.
In Askari, we reconsidered whether the defendant, who had been convicted of
bank robbery, qualified for a diminished capacity departure. At the time we reconsidered
the issue, § 5K2.13 had recently been amended. Under the old version, courts were
required to determine
[i]f the defendant committed a non-violent offense while
suffering from significantly reduced mental capacity, . . . .
provided that the defendant’s criminal history does not
indicate a need for incarceration to protect the public.
Askari, 159 F.3d at 775 n.1. As noted above, under the new version of the guidelines,
courts must determine
if the defendant committed the offense while suffering from a
significantly reduced mental capacity. However, the court
may not depart below the applicable guideline range if (1) the
8
significantly reduced mental capacity was caused by the
voluntary use of drugs or other intoxicants; (2) the facts and
circumstances of the defendant’s offense indicated a need to
protect the public because the offense involved actual
violence or a serious threat of violence; or (3) the defendant’s
criminal history indicates a need to incarcerate the defendant
to protect the public.
U.S.S.G. § 5K2.13. Because we found that the new version was a clarifying amendment,
we remanded to the district court to make additional factual findings which it had not
made under the old version. Askari, 159 F.3d at 780.
Hawkins correctly notes that we remanded so that the district court could make
additional findings on the issue of “whether Askari’s criminal history indicates ‘a need to
protect the public.” Id. (citing § 5K2.13). Given that we remanded this issue for
determination, he argues that because the new version contains the “need to protect the
public” language in both the second and third prongs of § 5K2.13, a district court is
required to make the same type of “need to protect the public” determination with respect
to “a serious threat of violence.”
However, Hawkins conveniently ignores that we also remanded for factual
findings as to “whether Askari’s offense involved ‘actual violence or a serious threat of
violence.’” Id. Thus, while we did find that the controlling inquiry in the third prong of
§ 5K2.13 was whether the defendant’s criminal history indicates a need to incarcerate the
defendant to protect to public, it is clear that we found that the controlling inquiry under
the second prong of § 5K2.13 focuses on whether the defendant’s offense involved
9
“actual violence or a serious threat of violence.” There is nothing in Askari that requires
a district court to parse out the “need to protect the public” language from the “actual
violence or a serious threat of violence” language and make a separate factual finding on
each issue.
Hawkins’ second argument is that the district court misinterpreted the phrase “a
serious threat of violence.” He contends that the district court found that his bank robbery
involved “a serious threat of violence” based solely on his admission that the bank teller
appeared frightened of him. But, claims Hawkins, the mere fact that the bank teller was
frightened of him does not mean that there was “a serious threat of violence.” Rather, he
contends that several courts have held that the focus of the inquiry should be on whether
the defendant had the intention and capability of carrying through on the threat. As an
example, he cites to United States v. McFadzean, 1999 WL 1144909 (N.D. Ill Dec. 8,
1999). There, the district court found that the defendant’s bank robbery did not involve a
serious threat of violence, even though the defendant handed the teller a note which read,
“I have a gun and want $3,000 don’t try to touch nothing.”
Id. at *5. The district court
believed that there was no serious threat of violence because “the threat was an empty
one[, the defendant] had no weapon and no means to harm anyone.”
Id.
However, here, nothing in the record indicates that the district court limited its
finding of a serious threat of violence to Hawkins’ statement that the teller was
frightened. Moreover, this case is unlike a case where an unarmed bank robber presents a
10
demand note to a teller without using any actual force. In his first robbery, Hawkins
jumped over the teller counter, grabbed the teller’s shirt and violently pushed her to the
ground. In his second robbery, he also jumped over the counter in a menacing manner
and was halted only when an off-duty police officer arrived on the scene with his weapon
drawn. Given this record, we can not conclude that the district court committed plain
error in denying the requested departure for diminished mental capacity.
III.
For all of the above reasons, we will affirm the sentence.
TO THE CLERK OF THE COURT:
Please file the foregoing Opinion.
/s/ Theodore A. McKee
Circuit Judge
11
