PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-5028
SCOTT WILLIAM THOMPSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Jerome B. Friedman, District Judge.
(4:06-cr-00031-JBF)
Argued: December 5, 2008
Decided: February 9, 2009
Before NIEMEYER, SHEDD, and DUNCAN,
Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the opin-
ion, in which Judge Niemeyer and Judge Duncan joined.
COUNSEL
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
Eric Matthew Hurt, OFFICE OF THE UNITED STATES
ATTORNEY, Newport News, Virginia, for Appellee. ON
2 UNITED STATES v. THOMPSON
BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Alexandria, Virginia, Arenda L. Wright Allen, Assistant Fed-
eral Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellant. Chuck Rosen-
berg, United States Attorney, Alexandria, Virginia, Richard
D. Cooke, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee.
OPINION
SHEDD, Circuit Judge:
Scott William Thompson appeals the district court’s impo-
sition of a mandatory life sentence pursuant to the federal
"three strikes" law. See 18 U.S.C. § 3559(c). For the reasons
that follow, we affirm.
I.
Thompson pled guilty to one count of bank robbery in vio-
lation of 18 U.S.C. § 2113(a) for the February 3, 2006, rob-
bery of a Wachovia branch in Williamsburg, Virginia.1 The
"three strikes" law requires the district court to impose a man-
datory life sentence upon the conviction of a "serious violent
felony" if the defendant has either two prior convictions for
serious violent felonies or at least one conviction for a serious
violent felony and at least one conviction for a serious drug
offense. See § 3559(c)(1). The statute defines "serious violent
felony" to include robbery. See § 3559(c)(2)(F)(i).
Although Thompson pled guilty to a serious violent felony
— bank robbery — he argues that the statute’s so-called
1
Thompson was also charged with one count of bank robbery involving
a robbery of the Suntrust Bank in Williamsburg, Virginia. The government
dismissed this count.
UNITED STATES v. THOMPSON 3
safety valve2 applies to his robbery and, therefore, he should
not have received a mandatory life sentence.3 The statute’s
safety valve provides that a robbery shall not qualify as a seri-
ous violent felony "if the defendant establishes by clear and
convincing evidence" that (so far as is relevant to this case)
the defendant did not threaten the use of a firearm or other
dangerous weapon. See § 3559(c)(3)(A).
Thompson concedes that he has two qualifying convictions
for previous serious violent felonies (i.e., two strikes), but he
argues that his latest conviction should not be considered a
strike because he met his burden under the statute. He also
argues that § 3559(c) violates his constitutional rights because
the sentence was based on judicial fact-finding that increased
the applicable statutory maximum from twenty years to life
imprisonment. We reject both of these contentions.
2
Other circuits have referred to this safety valve as an affirmative
defense. See United States v. Brown, 276 F.3d 930, 933 (7th Cir. 2002).
We believe it is more appropriate to refer to this provision as a safety
valve. Affirmative defenses operate to excuse criminal liability. See Smart
v. Leeke, 873 F.2d 1558,1575 n. 22 (4th Cir. 1989) (holding "an affirma-
tive defense does not negate an element of a crime; . . . it . . . excuses pun-
ishment for a crime the elements of which have been established and
admitted") (internal citations and quotations omitted). Safety valves, on
the other hand, operate in the context of sentencing after criminal liability
has already been established. At least two other circuits have referred to
this provision as a safety valve. See United States v. Contreras, 536 F.3d
1167, 1173 (10th Cir. 2008) (holding "[t]he statutory scheme also provides
a safety valve, whereby a defendant can demonstrate that a prior convic-
tion should not count as a serious violent felony because of mitigating fac-
tors") (emphasis added); United States v. Snype, 441 F.3d 119, 144 (2nd
Cir. 2006) (noting that § 3559(c)(3) "serves, in effect, as a safety valve")
(emphasis added).
3
Had Thompson not qualified for a mandatory life sentence under the
"three strikes" law, he would have faced a maximum sentence of twenty
years. See 18 U.S.C. § 2113(a).
4 UNITED STATES v. THOMPSON
II.
At the outset, we address Thompson’s argument that his
conviction should not qualify as a strike. Whether an offense
is a strike under the "three strikes" law is an issue to be
decided by the court during sentencing. See United States v.
Hopkins, 310 F.3d 145, 154 (4th Cir. 2002). If, in the course
of making this determination, the district court makes findings
of fact, we defer to its factual findings and will not set them
aside unless they are clearly erroneous. See Evergreen Intern.,
S.A. v. Norfolk Dredging Co., 531 F.3d 302, 308 (4th Cir.
2008). Moreover, when a district court’s factual finding "is
based upon assessments of witness credibility, such finding
‘is deserving of the highest degree of appellate deference.’"
Id. (quoting United States Fire Ins. Co. v. Allied Towing
Corp., 966 F.2d 820, 824 (4th Cir. 1992)).
Thompson argues that the district court erred in finding that
he did not meet his burden under the statute. To meet his bur-
den, Thompson was required to show with clear and convinc-
ing evidence that he did not threaten to use a firearm during
the relevant robbery.4 Whether Thompson threatened to use a
firearm is undoubtedly a factual determination. To assist in
this determination, the district court held an evidentiary hear-
ing during which five witnesses testified.5
The government presented two witnesses who testified that
Thompson threatened to use a firearm during the Wachovia
robbery. Sibit Stewart, a Wachovia employee, was in the
break room of the Wachovia branch when the robbery
4
There is no evidence that Thompson actually used a firearm during the
relevant robbery.
5
The parties were willing to resolve this issue based on witness affida-
vits. The district court, however, wanted to hear from the witnesses before
making the determination. The district court continued Thompson’s sen-
tencing on two occasions in order for the parties to present witnesses on
the issue now before us.
UNITED STATES v. THOMPSON 5
occurred. Stewart heard Thompson yelling that he would
shoot people. She testified:
I looked at the monitors and I could see a male with
a beard and a hat and a long overcoat. At the same
time I could hear him. There wasn’t sound coming
from the monitors because it didn’t have speakers,
but I could hear him through, I guess, the hallway
screaming, ‘Teller manager. Teller manager. This is
no joke. No dye packs. Don’t take any money from
the top drawer, take it from the bottom drawer. I’ll
f[***]ing kill you. I’ll f[***]ing shoot you.’
J.A. 150. Stewart admitted that she never actually saw a fire-
arm, but she did hear Thompson threaten to use a firearm
more than once. Stewart noted these threats in a written state-
ment provided to the police immediately following the rob-
bery. The district court found Stewart credible because she
was not in the firing line and, therefore, she likely had the
clearest perception of those present.
Carmen Blackwell, a Wachovia employee, testified that she
was in a glass-encased office approximately 15 to 20 feet
from the teller line when Thompson entered the bank. She tes-
tified that Thompson acted violently and erratically and
demanded to see the head teller. She observed that Thompson
kept one hand in his pocket as if he had a gun and when the
head teller identified herself, Thompson said, "I’m not
f[***]ing with you. You b[****]es give me your money right
now or I’ll blow your f[***]ing heads off." J.A. 158. Black-
well testified that as Thompson paced back and forth, he con-
tinued his threats:
At that point he went to take his hand out of his
pocket, like he was going to pan, and I could not tell
if it was a gun in his hand or his hands, but he was
holding it like a gun, and started screaming, ‘Every-
one, get the f**k down. I’ll blow your f***ing heads
6 UNITED STATES v. THOMPSON
off,’ and he just kept screaming that over and over.
At that point I hid under my desk because I was ter-
rified he was going to start shooting people.
J.A. 158-59. Blackwell’s written statement to police immedi-
ately following the robbery did not describe these threats. In
recognizing this omission, the district court stated that she
was "obviously extremely shaken," as evidenced by the fact
that she hardly recognized her own handwriting. J.A. 179.
Thompson presented three witnesses. Richard Wilson, a
Wachovia customer at the time of the robbery, testified that
while he did not hear any threats, he did fear for his life. Wil-
son testified that he began to worry that he was not going to
make it out of the bank alive. He also testified that it was his
son’s birthday that day, and he did not know if he would ever
see his son again. Wilson admitted he might not have heard
the threats because his thoughts were concentrated on whether
he was going to make it out of the bank. The district court
noted that Wilson was not sure he heard everything because
he was afraid.
Gloria Horton, a bank customer, testified that she did not
hear any threats. She stated that she was closely situated to
Thompson and that he ordered her to get down on the floor.
As she was trying to get down, her leg slipped, and she
tripped Thompson. Thompson reacted by calling her a
"b[**]ch." Horton testified that she never feared for her life
and that she heard everything Thompson said during the rob-
bery. The district court questioned the credibility of this testi-
mony because the other witnesses who testified were scared
during the robbery. The court concluded that it was not credi-
ble that Horton was not scared at all.
Detective Edward Schneider testified as to his investigation
of the robbery. He interviewed the witnesses and took their
statements. He stated that immediately after the robbery, only
Stewart had given a written statement that Thompson had
UNITED STATES v. THOMPSON 7
threatened to use a firearm. However, Schneider admitted on
cross examination that others had verbally told him that
Thompson made these threats. The district court discounted
Schneider’s testimony about whether there were threats of the
use of a firearm because "he wasn’t there, obviously." J.A.
177.
The district court found that Thompson had not met his
burden of showing with clear and convincing evidence that he
did not threaten to use a firearm. In announcing its decision,
the court reiterated the importance of hearing live witness tes-
timony when making credibility determinations. We note that
the district court’s finding is consistent with Thompson’s own
stipulated fact that "[t]he defendant also demanded that the
bank employees not put bait money or dye packs into the
money bags ‘or else.’ The employees took this as a threat and
were fearful for their safety and lives." J.A. 16 (emphasis
added). After reviewing the record and in light of Thompson’s
burden, we conclude that the district court did not commit
clear error in making this factual determination.
III.
Thompson next argues that the mandatory life sentence he
received is unconstitutional. Because he did not raise this
issue below, we review his claim for plain error. See United
States v. Olano, 507 U.S. 725 (1993). To establish plain error,
Thompson must show that an error occurred, that the error
was plain, and that the error affected his substantial rights. Id.
at 732-34. Even if Thompson makes this three-part showing,
correction of the error remains within our discretion, which
we should not exercise "unless the error ‘seriously affect[s]
the fairness, integrity or public reputation of [the] judicial pro-
ceedings.’" Id. at 732 (internal citations omitted).
Thompson argues that the district court’s factual finding
under the "three strikes" law violates the rule announced in
Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi,
8 UNITED STATES v. THOMPSON
the Supreme Court held that other than the fact of a prior con-
viction, any fact that increases a defendant’s sentence beyond
the prescribed statutory maximum must be found by a jury
and proved beyond a reasonable doubt. Id. at 490.
Thompson contends that the finding that he did not meet
his burden increased his sentence beyond the otherwise appli-
cable statutory maximum.6 This is incorrect. There was no
fact-finding that increased Thompson’s sentence. Rather,
there was only fact-finding to determine whether to reduce
Thompson’s sentence. The safety valve in § 3559(c) was
intended to ensure that truly non-violent offenses do not qual-
ify as serious violent felonies. Brown, 276 F.3d at 933. The
Supreme Court has held that a "three strikes" law is constitu-
tional without a safety valve. See Ewing v. California, 538
U.S. 11 (2003) (holding California’s "three strikes" law con-
stitutional). Further, Thompson concedes that § 3559(c) is
constitutional without a safety valve. Therefore, the fact that
Congress chose to include this safety valve to benefit a certain
class of defendants whose offense is truly non-violent does
not then make the statute unconstitutional.
In Brown, the Seventh Circuit held that "Apprendi leaves
undisturbed the principle that while the prosecution must
indeed prove all the elements of the offense charged beyond
a reasonable doubt, the legislation creating the offense can
place the burden of proving [the safety valve] on the defen-
dant." Brown, 276 F.3d at 932 (citations omitted). It further
stated: "[t]he federal ‘three strikes’ law does not alter the
existing statutory definition of bank robbery. It just allows the
defendant to show that the particular robbery he committed
was not very violent." Id. at 933. We agree.
6
One way to characterize Thompson’s argument is that he wants the
applicable statutory maximum to be changed from mandatory life impris-
onment to 20 years. Here, we characterize it as a request for a reduced sen-
tence — that is, Thompson wanted the district court to reduce his sentence
from the mandatory life sentence to a maximum sentence of twenty years
by arguing he qualified for the safety valve.
UNITED STATES v. THOMPSON 9
Because we have never examined the safety valve in the
"three strikes" law under this challenge, it is helpful to exam-
ine the analogous safety valve in the United States Sentencing
Guidelines promulgated pursuant to 18 U.S.C. § 3553(f). See
U.S. Sentencing Guidelines Manual § 5C1.2 (2008). The sen-
tencing guideline safety valve requires a district court to sen-
tence a defendant based on the applicable sentencing
guidelines without regard to any statutory minimum when the
defendant meets the five statutory criteria. Id. The defendant
bears the burden to prove he has met the criteria for eligibility
under the § 5C1.2 safety valve. Id.; see also United States v.
Wilson, 114 F.3d 429, 432 (4th Cir. 1997) (holding "[t]he
defendant bears the burden of proving the existence of the
five prerequisites set forth in § 5C1.2") (internal citations
omitted). Further, the district court must make certain factual
findings to determine whether a defendant has met the criteria
under § 5C1.2. For example, under § 5C1.2, a defendant must
show, inter alia, that he did not use violence or credible
threats of violence or possess a firearm. See § 5C1.2(a)(2).
This factual determination is made during sentencing without
the aid of a jury. Thus, § 5C1.2’s safety valve operates identi-
cally to the safety valve in the "three strikes" law.
Under similar challenges as Thompson now makes, other
circuits have held that factual determinations made under
§ 5C1.2’s safety valve do not offend Apprendi. See, e.g., U.S.
v. Poyato, 454 F.3d 1295, 1299 (11th Cir. 2006) (holding
"there is no requirement in [§ 5C1.2], or otherwise in the law,
that the jury make findings . . . with regard to the five prereq-
uisites for application of the safety valve"); U.S. v. Holguin,
436 F.3d 111, 117 (2nd Cir. 2006) (holding the district court’s
application of § 5C1.2’s safety valve did not violate
Apprendi); United States v. Labrada-Bustamante, 428 F.3d
1252, 1263 (9th Cir. 2005) (holding that a district court deny-
ing defendant application of the safety valve in § 5C1.2 after
making certain factual findings that disqualified defendant for
the safety valve does not violate the rule announced in
Apprendi).
10 UNITED STATES v. THOMPSON
In Holguin, the Second Circuit found that judicial fact-
finding to determine whether the safety valve in § 5C1.2
applied "does not permit a higher maximum sentence to be
imposed; the only effect of the judicial fact-finding is either
to reduce a defendant’s sentencing range or to leave the sen-
tencing range alone, not to increase it." Holguin, 436 F.3d at
117 (emphasis in original). The Second Circuit stated further
that the defendant "turns [§ 5C1.2] on its head by converting
the eligibility criteria for a sentence reduction into elements
of the offense which increase his maximum sentence." Id.
(emphasis in original). The Second Circuit’s reasoning is
directly applicable to the safety valve at issue here.7
Prior to pleading guilty, Thompson had proper notice that
the government was seeking a mandatory life sentence based
on the current offense and his criminal history. The govern-
ment sought this mandatory life sentence based on the fact
that bank robbery qualifies as a strike. Thus, Thompson pled
guilty to the crime that subjected him to the mandatory life
sentence. This plea satisfies any Apprendi concern. In short,
the district court did not commit plain error because Thomp-
son’s sentence was not increased based on judicial fact-
finding in violation of Apprendi.
IV.
Based on the foregoing, we affirm the judgment of the dis-
trict court.
AFFIRMED
7
Thompson’s view that the safety valve is a matter to be proved at trial
would potentially prejudice defendants in their right not to present a
defense. For example, a defendant charged with bank robbery could be
forced to present evidence in his defense in order to meet his burden under
the safety valve, rather than simply allowing the jury to determine his case
on the government’s evidence.