UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4886
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS J. SAVOCA, a/k/a Irvin L. Roddy,
Defendant - Appellant.
No. 04-4890
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS J. SANTOS,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (CR-03-194)
Submitted: October 31, 2005 Decided: November 17, 2005
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
No. 04-4886 affirmed; No. 04-4890 affirmed in part, vacated in
part, and remanded by unpublished per curiam opinion.
Barron M. Helgoe, VICTOR, VICTOR, & HELGOE, L.L.P., Charleston,
West Virginia; Jacqueline A. Hallinan, HALLINAN LAW OFFICES,
P.L.L.C., Charleston, West Virginia, for Appellants. Charles T.
Miller, Acting United States Attorney, Susan M. Arnold, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Thomas J. Savoca and Carlos J. Santos appeal their
convictions and sentences for bank robbery in violation of 18
U.S.C. § 2113(a), (d) (2000) and use of a firearm during a bank
robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2000).
Finding no reversible error with Savoca’s conviction and sentence,
we affirm. We affirm Santos’ conviction, but we vacate his bank
robbery sentence and remand for resentencing in light of United
States v. Booker, 125 S. Ct. 738 (2005).
Savoca and Santos first claim that the district court
erred in denying their motion for a judgment of acquittal. We
review the district court’s decision to deny a motion for judgment
of acquittal de novo. United States v. Gallimore, 247 F.3d 134,
136 (4th Cir. 2001). If the motion was based on insufficiency of
the evidence, the verdict must be sustained if there is substantial
evidence, taking the view most favorable to the government, to
support it. Glasser v. United States, 315 U.S. 60, 80 (1942).
Savoca and Santos assert that the Government failed to
prove that Trader’s Bank was federally insured by the Federal
Deposit Insurance Corporation (FDIC), an essential element of bank
robbery that the government must prove beyond a reasonable doubt.
See 18 U.S.C. § 2113 (2000). At trial, the Government called
Douglas Robinson, the manager of the bank, to testify. Robinson
testified that deposits of Traders Bank are insured by the FDIC.
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This court has held that testimony from a bank employee that the
deposits are insured by the FDIC is sufficient evidence from which
the jury may conclude the bank was insured at the time of the
robbery. See United States v. Gallop, 838 F.2d 105 (4th Cir.
1988). Furthermore, testimony from a bank employee that the
deposits “are” FDIC insured is sufficient evidence from which the
jury could reasonably infer that the bank was insured at the time
of the robbery. United States v. Safley, 408 F.2d 603, 605 (4th
Cir. 1969). Due to the absence of contradictory evidence and
taking all inferences in favor of the Government, the Government
presented sufficient evidence that Traders Bank was FDIC insured on
the date of the robbery. The district court did not err when it
denied Savoca and Santos’ motion for a judgment of acquittal.
Savoca next claims that the district court used
judicially found facts to enhance his sentence from a base offense
level of twenty to a level of twenty-nine. Because Savoca
preserved this claim by objecting to his career offender
classification based upon Blakely v. Washington, 124 S. Ct. 2531
(2004), this court’s review is de novo. See United States v.
Mackins, 315 F.3d 399, 405 (4th Cir. 2003). Regardless of whether
the district court impermissibly used judicially found facts for
those initial enhancements, those enhancements became irrelevant
once the district court found that Savoca qualified as a career
offender under U.S. Sentencing Guidelines Manual § 4B1.1 (2004).
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Because Savoca qualified as a career offender, the district court
had to increase Savoca’s offense level to thirty-four for that
reason alone, and the earlier enhancements were subsumed.
Savoca also claims the district court erred when it found
he was a career offender and enhanced his sentence based on prior
convictions that were not charged in his indictment nor found by
the jury. However, in Almendarez-Torres v. United States, 523 U.S.
224 (1998), the Supreme Court held that the government need not
allege in its indictment and need not prove beyond reasonable doubt
that a defendant had prior convictions for a district court to use
those convictions for purposes of enhancing a sentence. See United
States v. Cheek, 415 F.3d 349 (4th Cir. 2005) (Almendarez-Torres
was not overruled by Booker).
Savoca finally claims that the district court’s treatment
of the sentencing guidelines as mandatory requires resentencing.
Assuming without deciding that Savoca preserved this claim, we
review the error under the harmless error analysis. See Booker,
125 S. Ct. at 769. The government bears the burden in harmless
error review of showing beyond a reasonable doubt that the error
did not affect the defendant’s substantial rights. Mackins, 315
F.3d at 405. Affecting substantial rights means that the error
affected the outcome of the proceedings. United States v. Stokes,
261 F.3d 496, 499 (4th Cir. 2001). An error in sentencing may be
disregarded if the reviewing court is certain that any such error
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“did not affect the district court’s selection of the sentence
imposed.” Williams v. United States, 503 U.S. 193, 203 (1992).
In this case, the district court demonstrated that it
exercised its discretion in choosing Savoca’s sentence. The
district court weighed the guideline range against the sentencing
factors and gave Savoca, in the district court’s view, the maximum
possible sentence he could have received while still allowing for
the possibility of a few years out of prison at the end of his
life. The court characterized Savoca as “one of the worst people”
to have ever appeared before the court, stated that his age was the
only mitigating factor relevant to his sentencing, and commented
that “it’s only the mercy of this court that has kept me from
giving you a life sentence here.” We accordingly conclude that the
district court’s error in sentencing Savoca under the mandatory
guidelines constituted harmless error that did not affect Savoca’s
substantial rights. Accordingly, we affirm Savoca’s sentence.
Santos also claims that the district court improperly
enhanced his sentence with judicially found facts under Booker.
Santos first claims that the district court improperly enhanced his
sentence under USSG § 2B3.1(b)(1) because the offense involved a
financial institution and under USSG § 2B3.1(b)(7)(D) because the
loss was greater than $250,000. However, the facts necessary for
these enhancements were charged in the indictment and found by the
jury. Count One of the indictment charged Santos with stealing
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$308,000 from the bank and stated that Trader’s Bank was insured by
the FDIC. The jury’s guilty verdict was thus a finding that the
loss was greater than $250,000, in satisfaction of USSG
§ 2B3.1(b)(7)(D). By definition, the jury’s finding that Traders
bank was FDIC insured qualified it as a “financial institution” for
USSG § 2B3.1(b)(1). See 18 U.S.C. § 20(1) (2000). The district
court did not engage in any impermissible judicial fact finding
under Booker when it increased Santos’ offense level from twenty to
twenty-five.
Santos also claims the district court improperly enhanced
his sentence under USSG § 3C1.2 because of a high speed chase
following the bank robbery. The Government concedes that this
enhancement was improper judicial fact finding and that Santos
should be resentenced. Without the two level enhancement, Santos’
sentencing guideline range on his bank robbery conviction would
only have been 70-87 months’ imprisonment. Santos’ 108 month
sentence for the bank robbery count thus exceeds the sentence that
could have been imposed based only on the facts found by the jury.
In light of Booker, we vacate Santos’ bank robbery sentence and
remand the case for resentencing.* Although the sentencing
guidelines are no longer mandatory, Booker makes clear that a
*
Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Santos’ sentencing.
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sentencing court must still “consult [the] Guidelines and take them
into account when sentencing.” 125 S. Ct. at 767. On remand, the
district court should first determine the appropriate sentencing
range under the Guidelines, making all factual findings appropriate
for that determination. See United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005) (applying Booker on plain error review). The
court should consider this sentencing range along with the other
factors described in 18 U.S.C. § 3553(a) (2000), and then impose a
sentence. Id. If that sentence falls outside the Guidelines
range, the court should explain its reasons for the departure as
required by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must
be “within the statutorily prescribed range and . . . reasonable.”
Id. at 546-47.
Accordingly, we affirm Savoca’s conviction and sentence.
We affirm Santos’ conviction. In light of Booker, we vacate
Santos’ bank robbery sentence and remand for resentencing. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
No. 04-4886 AFFIRMED
No. 04-4890 AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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