Filed: Jan. 09, 2013
Latest Update: Mar. 26, 2017
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-4209 _ UNITED STATES OF AMERICA v. DANNY BANNOUT a/k/a D Danny Bannout, Appellant _ On Appeal from the United States District Court for the District of New Jersey D.C. Criminal No. 2-10-cr-00366-002 (Honorable William H. Walls) _ Submitted Pursuant to Third Circuit LAR 34.1(a) January 7, 2013 Before: SCIRICA, AMBRO and FUENTES, Circuit Judges. (Filed: January 9, 2013) _ OPINION OF THE COURT _ SCIRICA, Circuit Judge. D
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-4209 _ UNITED STATES OF AMERICA v. DANNY BANNOUT a/k/a D Danny Bannout, Appellant _ On Appeal from the United States District Court for the District of New Jersey D.C. Criminal No. 2-10-cr-00366-002 (Honorable William H. Walls) _ Submitted Pursuant to Third Circuit LAR 34.1(a) January 7, 2013 Before: SCIRICA, AMBRO and FUENTES, Circuit Judges. (Filed: January 9, 2013) _ OPINION OF THE COURT _ SCIRICA, Circuit Judge. De..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-4209
___________
UNITED STATES OF AMERICA
v.
DANNY BANNOUT
a/k/a
D
Danny Bannout,
Appellant
_______________________
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 2-10-cr-00366-002
(Honorable William H. Walls)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 7, 2013
Before: SCIRICA, AMBRO and FUENTES, Circuit Judges.
(Filed: January 9, 2013)
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Defendant Danny Bannout pled guilty to two conspiracy charges and was
sentenced to 190 months’ imprisonment. On appeal, he challenges the District Court’s
calculation of the amount of loss and its finding that he was an organizer or leader of the
conspiracy. He also contends there is an unwarranted disparity between his sentence and
those of his co-defendants. We will affirm.
I.
Bannout and Kelvin Jones orchestrated an armed robbery of a perfume warehouse
in Carlstadt, New Jersey on February 9, 2010. 1 Jones, an NYPD officer, recruited fellow
officers to stage a phony police raid of the warehouse. They brandished their badges and
firearms, and restrained and robbed the employees. Meanwhile, Bannout led a crew of
individuals who loaded rental trucks with merchandise from the warehouse and
transported the merchandise to storage units rented by Bannout. He was arrested several
months later and pled guilty to conspiracy to obstruct interstate commerce by armed
robbery, 18 U.S.C. § 1951(a). 2
The District Court found that Bannout was an organizer or leader of the warehouse
robbery and increased his offense level by four under the U.S. Sentencing Guidelines
Manual (U.S.S.G.) § 3B1.1. The court increased the offense level by three based on the
amount of loss, under U.S.S.G. § 2B3.1(b). Bannout’s adjusted offense level was 34, and
when combined with his criminal history category of II resulted in a Guidelines range of
168-210 months. The court sentenced him to 190 months’ imprisonment, and made the
1
A jury convicted Jones of several counts stemming from the robbery, and a different
panel of this court affirmed.
2
Bannout also pled guilty to conspiracy to transport stolen goods in interstate commerce,
18 U.S.C. § 2314, a charge stemming from an unrelated theft from a storage facility. This
charge had no effect on his Guidelines calculation.
2
sentence run concurrent to an 87-month sentence imposed by the Southern District of
New York for an unrelated narcotics offense. On appeal, Bannout challenges the court’s
calculation of the loss and its finding that he was a leader or organizer of the robbery, and
contends there is an unwarranted disparity between his sentence and those of his fellow
conspirators. 3
II.
A.
Bannout argues the District Court erred in calculating the loss, asserting there was
a lack of evidence substantiating the court’s calculation and the three-level increase to his
offense level under U.S.S.G. § 2B3.1. However, Bannout withdrew this objection at
sentencing. Accordingly, he has waived this argument. See United States v. Streich, 560
F.3d 926, 929 n.1 (9th Cir. 2009) (citing United States v. Olano,
507 U.S. 725, 733
(1993)).
Alternatively, Bannout argues the court should have exercised its discretion to
depart downwards under U.S.S.G. § 2B1.1 cmt. n.19, on the ground that the loss
calculation overstated the seriousness of the offense. The court considered this argument
at sentencing and declined to exercise its discretion. “[W]e lack jurisdiction to review”
the discretionary denial of a downward departure “unless the District Court was unaware
of its discretion to grant the motion.” United States v. King, 604 F.3d 125, 141 n.9 (3d
Cir. 2010) (citing United States v. Cooper,
437 F.3d 324, 332-33 (3d Cir. 2006)).
3
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3
Accordingly, Bannout has not raised a cognizable issue on appeal with respect to the
court’s loss calculation. 4
B.
Bannout next argues the court erred by finding he was an organizer or leader of
the warehouse robbery and increasing his offense level by four under U.S.S.G. §
3B1.1(a). Section 3B1.1 of the Sentencing Guidelines provides that a defendant’s offense
level shall be increased four levels if “the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise extensive,”
whereas a three-level increase applies if the defendant was a manager or supervisor of the
criminal activity. U.S.S.G. § 3B1.1. “‘[I]n distinguishing a leadership and organizational
role from one of mere management or supervision . . . . [f]actors the court should
consider include the exercise of decision making authority, the nature of participation in
the commission of the offense, the recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of participation in planning or
4
In any event, Bannout’s challenge to the loss calculation lacks merit. Bannout argues
the court erroneously found the loss was greater than $250,000 by relying on
unsubstantiated insurance claims and failing to credit merchandise that was recovered
based on information he gave to the government. We review the court’s finding as to the
amount of the loss for clear error and exercise plenary review over its interpretations of
the guidelines. United States v. Jimenez, 513 F.3d 62, 85 (3d Cir. 2008).
To determine the amount of loss, the court relied on a letter from the victims
explaining the loss, a detailed list of inventory stolen in the robbery, and checks from
insurance companies compensating the victims for some of their losses. Contrary to
Bannout’s argument, the loss calculation is not affected by the fact that some of the stolen
merchandise was later recovered. See United States v. Rivera-Rivera, 555 F.3d 277, 293
(1st Cir. 2009) (“It is of no moment that the [stolen] items were recovered and returned.”)
(citation omitted). We see no clear error.
4
organizing the offense, the nature and scope of the illegal activity, and the degree of
control and authority exercised over others.’” United States v. Ortiz, 878 F.2d 125, 127
(3d Cir. 1989) (second and third alterations in original) (quoting U.S.S.G. § 3B1.1 cmt.
n.4). Not all these factors need to be present for a finding that the defendant was an
organizer or leader. Id. We review such a finding for clear error. Id.
Bannout argues that he was merely a manager or supervisor of the robbery, and
that Jones was the leader or organizer of the conspiracy and robbery. He focuses on the
facts that Jones recruited and led the team of NYPD officers who raided the warehouse
and restrained the employees, and that Jones also decided to rent two extra trucks to carry
more stolen merchandise. But “[t]here can, of course, be more than one person who
qualifies as a leader or organizer of a criminal association or conspiracy.” U.S.S.G. §
3B1.1 cmt. n.4. And the record shows that the robbery of the warehouse was Bannout’s
idea. Bannout approached Jones and they planned the robbery together, modeling it after
a similar robbery the two previously committed. Bannout recruited at least four
individuals to participate in the robbery, organized the rental of the trucks used to
transport the stolen goods, and rented the facilities used to store the goods. He led the
team of individuals who loaded and transported the stolen goods. Bannout also received a
higher share of the proceeds than most of the conspirators, with the possible exception of
Jones. Accordingly, we see no clear error in the court’s finding that Bannout was a
leader or organizer of the conspiracy.
C.
Finally, Bannout contends the court erred by failing to justify the disparity
5
between his 190-month sentence and the sentences of his co-conspirators, some of which
were in the range of 50-75 months. When imposing a sentence, a court must consider
“the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). A
defendant challenging his sentence based on § 3553(a)(6) must show that his
“circumstances exactly paralleled” those of the defendants who received lower sentences.
United States v. Iglesias, 535 F.3d 150, 161 n.7 (3d Cir. 2008) (citation omitted). We
review for abuse of discretion. King, 604 F.3d at 145.
The District Court did not abuse its discretion. The court based Bannout’s within-
guidelines sentence, in part, on his role as a leader in the robbery, the fact he was on bail
when he committed the robbery, and his life of crime. He has not even argued, much less
made a showing, that other defendants were similarly situated. Bannout points only to the
fact that some of his co-conspirators participated in the raid of the warehouse, posing as
police officers and brandishing firearms. But, as the court acknowledged, Bannout plotted
the raid and thus shared responsibility for these acts. Several of Bannout’s co-
conspirators also cooperated with the government. Accordingly, we see no unwarranted
disparity between similarly situated defendants. 5
III.
For the foregoing reasons, we will affirm the judgment and sentence of the District
Court.
5
To the extent Bannout argues the court completely failed to consider this sentencing
factor, we disagree. See, e.g., A123.
6
