Filed: Dec. 04, 1995
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-10059 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PATRICIA DURA, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Texas (4:94-CR-74-Y) November 24, 1995 Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Patricia Dura appeals the sentence imposed pursuant to her conviction on one count of bank robbery in violation of 18 U.S.C. § 2113
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-10059 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PATRICIA DURA, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Texas (4:94-CR-74-Y) November 24, 1995 Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Patricia Dura appeals the sentence imposed pursuant to her conviction on one count of bank robbery in violation of 18 U.S.C. § 2113...
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10059
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICIA DURA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(4:94-CR-74-Y)
November 24, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Patricia Dura appeals the sentence imposed pursuant to her
conviction on one count of bank robbery in violation of 18 U.S.C.
§ 2113. We have jurisdiction, 28 U.S.C. § 1291, and we now
affirm.
I.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
On February 22, 1994, Dura and two other women, Sharon
Denise Curtis and Emma Cooley, robbed the First Interstate Bank
in Fort Worth, Texas. Posing as a customer seeking to open an
account at the bank, Curtis "cased" the bank while Cooley and
Dura waited outside. After Curtis informed Cooley and Dura that
there were no police inside the bank, Cooley and Duru entered the
bank and Cooley handed a note to a teller. The note read: "This
is no joke, make one wrong move and I will blow your fucking head
off. EMPTY YOUR DRAWER." Cooley held open the coat as if to
indicate that she was carrying a weapon. After the teller filled
Cooley's purse with cash, Cooley and Duru fled from the bank and
joined Curtis in the getaway car.
Prior to the First Interstate robbery, Dura had also robbed
the Central Bank and Trust in Kennedale, Texas on January 10,
1994. In that robbery, Cooley handed a note to the teller
threatening to shoot the teller. At the same time, Duru opened
her jacket and revealed what appeared to be the grip of a
handgun. Subsequent investigation by the F.B.I. disclosed that
neither Cooley nor Duru possessed a handgun during either
robbery; however, Cooley and Curtis later acknowledged that Duru
carried a BB pistol during these robberies.
On August 16, 1994, Duru, along with Cooley and Curtis, was
indicted on one count of bank robbery. On October 16, 1994, Duru
pled guilty and signed a Factual Resume stipulating to the facts
surrounding both robberies. In preparing the pre-sentence
investigation report, the U.S. Probation Office proposed to add
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to the base offense level of 22 a three-level enhancement for
possession of a dangerous weapon during the commission of the
crime and a two-level enhancement for multiple offenses. On
January 3, 1995, the district court adopted the probation
office's recommendations and sentenced Duru to 51 months
imprisonment, the minimum guideline sentence. Duru timely
appealed.
II.
Duru first challenges her sentence on the ground that her
co-defendants received sentences less severe than her own. In
United States v. McKinney,
53 F.3d 664, 678 (5th Cir. 1995), we
held that a criminal defendant "cannot challenge his sentence
based solely on the lesser sentence given to his co-defendants."
We see no reason to depart from that rule in this case.
Duru next contends that the three-level enhancement for the
possession of the BB gun was inappropriate since a BB gun is not
a dangerous weapon and, even if it is, Duru did not brandish it
during the robbery. We reject this contention. The Sentencing
Guidelines expressly provide that a BB gun is a "dangerous
weapon." U.S.S.G. § 1B1.1 application note 1(e). In addition,
the Guidelines provide for the three-level enhancement where a
"dangerous weapon was brandished, displayed, or possessed" during
the commission of the robbery. U.S.S.G. § 2B3.1(b)(2)(E)
(emphasis added). Cooley and Curtis both stated that Duru
possessed a BB gun during the First Interstate robbery, and Duru
never offered evidence that she did not.
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Lastly, Duru argues that the district court erred in
considering the Central Bank robbery as a "multiple offense" for
purposes of the two-level enhancement under § 3D1.4 since the
plea agreement provided that no further criminal charges would be
brought against Duru for conduct described in the Factual Resume,
which included that Central Bank robbery. We disagree. The
Guidelines expressly provide that "[a] plea agreement . . .
containing a stipulation that specifically establishes the
commission of additional offense(s) shall be treated as if the
defendant had been convicted of additional count(s) charging
those offense(s)." U.S.S.G. § 1B1.2(c). Duru stipulated to her
participation in the Central Bank robbery in the Factual Resume,
and the plea agreement expressly provides that the facts set
forth in the Factual Resume "may be taken into consideration by
the Court in determining what sentence to impose."
AFFIRMED.
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