United States v. Richardson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4337

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRUCE LEE RICHARDSON, a/k/a Chino,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:06-cr-00010-1)

Submitted: January 18, 2008 Decided: February 11, 2008

Before GREGORY and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

M. Victoria Jayne, Hickory, North Carolina, for Appellant. Donald
David Gast, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

On September 12, 2005, Bruce Lee Richardson and Alberto

Aleman entered the Champion Credit Union, displaying handguns. The

pair ordered bank personnel to get on the ground, then jumped over

the counter and stole $16,887.23. Three months later, on

December 19, 2005, Richardson and Aleman entered the United

Community Bank, again displaying handguns. As in the earlier

robbery, Richardson and Aleman ordered customers and bank personnel

to the ground at gunpoint, then jumped over the counter, stealing

$30,344. Richardson was ultimately charged, along with two others,

in a nineteen count indictment with various bank robbery and

firearms counts. Pursuant to a plea agreement, Richardson pled

guilty to two counts of bank robbery by force, violence and

intimidation, in violation of 18 U.S.C.A. § 2113(a) (West 2000 and

Supp. 2007), and to two counts of using and carrying a firearm

during and in relation to a crime of violence, in violation of 18

U.S.C.A. § 924(c)(1)(A)(ii) (West 2000 and Supp. 2007).

Prior to Richardson’s sentencing, the probation office

prepared a presentence report. The probation officer determined

that, for both bank robbery counts, Richardson had a base offense

level of twenty. This was increased two points for each count

because the property of a financial institution was taken and two

points were added because bank personnel were restrained in order

to facilitate the offenses. One point on both counts was also

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added due to the amount of loss and an additional two points were

added under U.S. Sentencing Guidelines Manual § 3D1.4. Richardson

received a three point reduction for acceptance of responsibility,

for a total offense level of twenty-four. Richardson’s offense

level combined with a criminal history category of III resulted in

an advisory guidelines range on the bank robbery counts of 63 to 78

months’ imprisonment.

Prior to Richardson’s sentencing, the Government filed a

motion pursuant to § 5K1.1 of the guidelines, recommending that

Richardson be granted a downward departure due to his substantial

assistance in testifying against a co-defendant. The Government

recommended a ten level departure from an offense level of twenty-

four to an offense level of fourteen. The adjusted offense level

and criminal history score resulted in an advisory guidelines range

of 21 to 27 months’ imprisonment. In accordance with the

Government’s motion and recommendation at sentencing, the district

court sentenced Richardson to twenty-one months’ imprisonment on

both bank robbery counts, to be served concurrently, and to seven

years on the first § 924(c) violation and twenty-five years on the

second § 924(c) violation, to be served consecutively. Richardson

timely noted an appeal and has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967).* In his brief, Richardson

*
Richardson was informed of his right to file a pro se
supplemental brief. He has elected not to do so.

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contends that imposition of a twenty-five year sentence for his

second conviction under § 924(c) was excessive or disproportionate.

According to 18 U.S.C. § 924(c)(1)(C)(I), a defendant

convicted of a second or subsequent offense of using or carrying a

firearm during and in relation to a crime of violence “shall . . .

be sentenced to a term of imprisonment of not less than 25 years.”

18 U.S.C. § 924(c)(1)(C)(I). A district court is required to

impose a sentence of at least twenty-five years for a second

§ 924(c) conviction, unless the Government files a motion

requesting the court to impose a lesser sentence so as to reflect

a defendant’s substantial assistance. 18 U.S.C.A. § 3553(e) (West

2000 and Supp. 2007). Here, although the Government filed a motion

pursuant to USSG § 5K1.1 to reduce Richardson’s sentence due to his

substantial assistance, the Government specifically limited its

motion to Richardson’s bank robbery convictions. Accordingly, the

district court was without authority to impose a lesser sentence on

Richardson’s second § 924(c) conviction.

To the extent Richardson complains that his twenty-five

year sentence is disproportionate or unconstitutional, his

contention is without merit. After United States v. Booker, 543

U.S. 220 (2005), a sentencing court must engage in a multi-step

process at sentencing. After calculating the correct advisory

guidelines range, the sentencing court must consider the guidelines

range, any relevant factors set forth in the guidelines, and the

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factors in 18 U.S.C.A. § 3553(a) (West 2000 and Supp. 2007); then

the court may impose sentence. United States v. Hughes, 401 F.3d

540, 546 (4th Cir. 2005).

On appeal, this court will affirm a post-Booker sentence

if it “is within the statutorily prescribed range and is

reasonable.” United States v. Moreland, 437 F.3d 424, 432 (4th

Cir. 2006). A post-Booker sentence may be unreasonable for

procedural or substantive reasons. However, a sentence that falls

within a properly calculated advisory guidelines range is presumed

to be reasonable. Rita v. United States, 127 S. Ct. 2456, 2462

(2007).

At sentencing, the district court properly calculated

Richardson’s advisory guidelines range and then, pursuant to the

§ 5K1.1 motion, reduced his offense level ten points, resulting in

a range of 21 to 27 months’ imprisonment. Prior to sentencing

Richardson, the district court specifically considered the advisory

nature of the guidelines and the factors in § 3553(a). The court

then imposed a sentence at the bottom of Richardson’s advisory

guidelines range on his bank robbery convictions and a sentence in

conformity with the statutory requirements of § 924(c) on the

firearms convictions.

Additionally, Richardson’s sentence was substantively

reasonable. Richardson received a total sentence of twenty-one

months’ imprisonment to be served concurrently on two bank robbery

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convictions that the Assistant United States Attorney described as

“the most violent bank robberies that I’ve had occasion to deal

with since becoming a federal prosecutor.” As noted in the

presentence report, during each robbery, customers and bank

personnel were ordered to the ground at gunpoint. Accordingly,

Richardson’s challenge to his sentence is without merit.

Finally, Richardson argues that “the parties did not

stipulate that a firearm was used, brandished, or discharged” and

that at sentencing “no evidence was presented that Mr. Richardson

ever brandished or (sic) firearm or made threats of death or

exerted force towards another person.” At sentencing, Richardson

specifically stipulated to the information in the presentence

report as establishing a factual basis for the charges to which he

pled guilty. According to the presentence report, Richardson

brandished a firearm during each of the bank robberies.

Accordingly, the district court did not err in imposing a seven

year sentence for Richardson’s first § 924(c) conviction. See 18

U.S.C. § 924(c)(1)(A)(ii).

In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We

therefore affirm the judgment of the district court. This court

requires that counsel inform Richardson, in writing, of the right

to petition the Supreme Court of the United States for further

review. If Richardson requests that a petition be filed, but

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counsel believes that such a petition would be frivolous, then

counsel may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on Richardson.

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.

AFFIRMED

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