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should not be published and is not precedent except under the limited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...)
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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.
10