[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
OCT 18, 2010
No. 10-10979 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 2:09-cr-00034-JES-DNF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK EVERETT SHARP,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 18, 2010)
Before CARNES, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Mark Everett Sharp appeals his sentences of life imprisonment for three
counts of armed bank robbery, 18 U.S.C. §§ 2, 2113(a), 2113(d), using a firearm
during a crime of violence, §§ 2, 924(c), and carjacking, id. §§ 2, 2119(a). Sharp
challenges the enhancement of his sentences for carjacking, the finding that his
demand notes to bank tellers contained threats to use a firearm, and the
enhancement of his sentences under the “three strikes” statute, id. § 3559(c)(1).
We affirm.
Sharp was indicted for eight crimes related to his robbery of three banks in
October 2008, December 2008, and April 2009. After Sharp entered pleas of not
guilty, the government provided notice of its intention to request mandatory terms
of life imprisonment for Sharp’s prior convictions for bank robbery in 1985 and
1986, id. § 3559(c)(1). Sharp later pleaded guilty to five crimes: three counts of
bank robbery, using a firearm during one robbery, and carjacking, id. §§ 2, 924(c),
2113(a), 2113(d), 2119(a).
The presentence investigation report described Sharp’s bank robberies and
his criminal history. The report stated that Sharp committed carjackings during
the October and December 2008 bank robberies, and the report added two points
to the offense levels for those robberies. United States Sentencing Guideline §
2B3.1(b)(5) (Nov. 2001). The report described how Sharp held the employees at
gunpoint, demanded that they relinquish their keys and identify their vehicle, and
drove away in those vehicles while the employees remained inside the banks. The
2
report also assigned three points to Sharp’s criminal history for his 11 convictions
for bank robbery in 1986. With a total offense level of 33 and a criminal history
of II, the report provided an advisory guideline range of 151 to 188 months of
imprisonment. The report stated that Sharp was subject to mandatory sentences of
life imprisonment for his carjacking and bank robbery offenses and a consecutive
sentence of life imprisonment for his firearm offense. Id. §§ 924(c)(1)(D)(ii),
3559(c)(1), 3559(c)(2)(F)(i).
Both the government and Sharp objected to the presentence report. The
government objected that the offense level for Sharp’s 2009 robbery should have
been increased by two points because it also involved a carjacking. Sharp
objected that the carjacking enhancement did not apply to any of the robberies
because he had not taken a vehicle from the “presence” of an employee of the
banks. Sharp objected that his bank robberies in 1986 were not serious violent
felonies because the demand notes he gave bank tellers during the robberies did
not contain a “threat of us[ing] . . . a firearm,” 18 U.S.C. § 3559(c)(3)(A)(i). Sharp
also objected that the enhancement of his sentences under the “three strikes”
statute violated his right to due process under the Fifth and Sixth Amendments to
the U.S. Constitution because his prior bank robberies were not alleged in his
indictment or found by a jury to be serious violent felonies. The district court
3
overruled Sharp’s objections, but sustained the objection by the government about
the enhancement for carjacking for the 2009 robbery.
The district court did not err by enhancing Sharp’s offense levels for
carjacking. A carjacking occurs when there is a “taking or attempted taking of a
motor vehicle from the person or presence of another by force and violence or by
intimidation.” U.S.S.G. § 2B3.1 cmt n.1. Although the Sentencing Guidelines do
not define the phrase “from the presence of another,” we interpreted the same
phrase in the carjacking statute, 18 U.S.C. § 2119, to require proof that “the victim
. . . be sufficiently near to the vehicle for it to be within reach, inspection, or
control and, absent threat or intimidation, to be able to maintain control of it.”
United States v. Kimble, 178 F.3d 1163, 1168 (11th Cir. 1999). We held in
Kimble that taking the car keys of a restaurant employee during an armed robbery
and stealing the car parked outside the building constituted a taking of the car
from the presence of the employee. Id. Like the carjacking in Kimble, Sharp stole
vehicles from the “presence” of the bank tellers.
The district court did not clearly err by finding that Sharp’s bank robberies
in 1986 were serious violent felonies. A bank robbery is a serious violent felony,
18 U.S.C. § 3559(c)(2)(F)(i), unless the “defendant establishes by clear and
convincing evidence” that he did not threaten to use a firearm or other dangerous
4
weapon during the robbery, id. § 3559(c)(3)(A)(i). Sharp argues that the demand
notes he gave bank tellers during the robberies did not contain a threat because the
notes stated that he possessed a gun, not that he intended to use it, but that
argument is absurd. Sharp’s notes demanded money and stated that he had a gun,
and some of the notes warned the bank tellers that, if they included a dye pack or
sounded an alarm, Sharp would “be back.” Sharp’s notes communicated the threat
that he would use a firearm if the bank tellers failed to comply with his demands.
The district court also did not err by enhancing Sharp’s sentences under the
“three strikes” statute. Sharp acknowledges his argument is foreclosed by the
decision of the Supreme Court in Almendarez-Torres v. United States, 523 U.S.
224, 226–27, 118 S. Ct. 1219, 1222 (1998). We have held repeatedly that
Almendarez-Torres remains the law until the Supreme Court overrules that
decision. See United States v. Palomino Garcia, 606 F.3d 1317, 1337 (11th Cir.
2010).
We AFFIRM Sharp’s sentences.
5