IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40351
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES RAY ROBERTS,
Defendant-Appellant.
_______________________________
Appeal from the United States District Court
for the Eastern District of Texas
_______________________________
February 11, 2000
Before BARKSDALE, BENAVIDES and STEWART, Circuit Judges.
BENAVIDES, Circuit Judge:
Appellant James Ray Roberts (“Roberts”) appeals from the
district court’s imposition of the 120-month maximum sentence for
a violation of 18 U.S.C. § 922(g)(1). Because we find that the
district court did not err in its calculation of the relevant
offense level, we affirm.
I. Factual and Procedural Background
On November 23, 1997, Roberts and his cohorts Mark Ervin
Thibodeaux (“Thibodeaux”) and Jason Rhine (“Rhine”) decided to
ride their four-wheel all terrain vehicles (“ATVs”) on private
property in Cypress Lakes, Liberty County, Texas, and poach some
wild hogs. The owner of the aforementioned private property,
hearing shots and spotting the ATVs, called the Texas Parks and
Wildlife game wardens.
Meanwhile, in another part of the forest, Liberty County
Deputy Constable Kenneth Gray (“Deputy Gray”) and his 16-year old
son were heading home from deer hunting when they heard the call
regarding the poachers. Responding to the call, Deputy Gray
drove to Cypress Lakes. Upon hearing ATVs in the woods, Deputy
Gray parked his truck, left his son inside it, and walked into
the thicket alone.
He soon saw two ATVs approaching him. Realizing that the
men nearing him were not game wardens, Deputy Gray knelt in the
weeds, pulled out his badge and affixed it over his left-breast
pocket. When the ATV carrying Roberts and Thibodeaux (and a dead
hog strapped to its front rack) was approximately 3 feet away,
Deputy Gray stood up and pointed his .357 handgun at them, saying
“Stop. Liberty County Constable’s Department.” At that point,
the other ATV, driven by Rhine, fled into the woods.
Deputy Gray fired one shot into the air and ordered Roberts
and Thibodeaux to dismount the ATV and lie down on the ground
with their hands behind their backs. Roberts and Thibodeaux
complied. Deputy Gray then proceeded to handcuff Roberts, but
had difficulty so doing because Roberts was wearing thick gloves.
To better accomplish his task, Deputy Gray put his .357 handgun
on the ground, and devoted both his hands to cuffing Roberts.
At that point, Thibodeaux grabbed the barrel of Deputy
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Gray’s handgun. Deputy Gray reached for the grip of the gun, and
the two struggled to gain control of it. Thinking that
Thibodeaux and Roberts meant to kill him, Deputy Gray fired two
shots from his gun, in an attempt to empty it. Roberts entered
the fray, punching Deputy Gray in the face and flaying him with
the handcuff Deputy Gray had managed to clasp about one wrist,
until Roberts had broken Deputy Gray’s nose and shut one of his
eyes.
Thibodeaux broke Deputy Gray’s hand, and, with the gun he
had thereby captured, Thibodeaux beat Deputy Gray in the head
five or six times, breaking his jaw, severing his ear, fracturing
his skull and gashing his head. This assault left Deputy Gray
subdued and lying on his back; Roberts took the opportunity to
ask Deputy Gray about the keys to the handcuffs and removed them
from Deputy Gray’s pocket.
Roberts and Thibodeaux then bound Deputy Gray’s hands and
feet together and tied him to a tree. They told him that they
were not going to kill him; they merely wanted to get away.
Taking the key to the handcuffs and Deputy Gray’s handgun with
them, they mounted their ATV and drove off into the woods.
After a time, Deputy Gray managed to untie himself, and he
walked back to his truck. Knowing his son was scared, he called
out in the dark, “It’s me, don’t shoot.” Luckily, Deputy Gray’s
boy kept his wits about him, and had actually called for
assistance upon hearing the scuffle and shots fired. His son
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then drove him to the guard station where Deputy Gray received
medical attention.
Roberts and Thibodeaux’s getaway was short-lived. Soon
after the assault, their route took them past some alerted game
wardens. After drawing their weapons and threatening to shoot,
the game wardens finally convinced Roberts and Thibodeaux to
stop. Roberts turned to Thibodeaux and said, “You should have
shot that big son of a bitch when you had the chance.”
Presumably, he meant Deputy Gray.
The game wardens found two hunting rifles and the dead hog
in the ATV. They also discovered Deputy Gray’s gun, covered with
blood, in Thibodeaux’s pants. Roberts was still wearing the
handcuffs on one wrist, but he had Deputy Gray’s keys in his
pocket. Both men were soaked with blood.
Roberts pled guilty to violating 18 U.S.C. § 922(g)(1),
possession of a firearm by a felon. Because he used the firearm
in furtherance of a robbery, because the victim was an officer of
the law and because he had previously been convicted of
aggravated rape and burglary, both crimes of violence, the
Presentence Investigation Report (“PSR”) recommended that Roberts
receive the maximum sentence of 120 months. Roberts filed his
objections to the PSR, but the district court rejected them in
toto and adopted the PSR.
Roberts timely filed this appeal.
II. Standard of Review
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When reviewing the district court’s imposition of sentence,
we apply de novo review to the lower court’s interpretation of
the Sentencing Guidelines and clear error review to its factual
findings. See United States v. Rice, 185 F.3d 326, 328 (5th Cir.
1999). “A defendant’s sentence must be upheld unless [he]
demonstrates that it was imposed in violation of the law, was
imposed because of an incorrect application of the guidelines, or
is outside the range of applicable guidelines and is
unreasonable.” United States v. Morrow, 177 F.3d 272, 300 (5th
Cir. 1999).
III. Discussion
Roberts advances numerous frivolous arguments and one
question of first impression in this Circuit. We therefore write
primarily to address Roberts’s claim that the district court
erred when it imposed a 7-level increase for the discharge of a
firearm in connection with the robbery.
Roberts’s objection to the 7-level increase1 derives from
the fact that Deputy Gray fired the weapon. Roberts argues that
if Roberts’s own sentence can be increased by Deputy Gray’s
1
Just how and why § 2B3.1(b)(2) applies to this conviction requires
a complicated explanation. Roberts pled guilty to violating 18 U.S.C. §
922(g)(1), possession of a firearm by a felon. Section 2K2.1 of the
Sentencing Guidelines applies to the unlawful possession of firearms.
Subsection (c) of that statute provides for a cross-reference to § 2X1.1 if
the defendant’s possession of the firearm was in connection with the
commission or attempted commission of another offense. Section 2X1.1 applies
to attempts, and subsection (a) of that statute directs that the base offense
level of the substantive offense–here, armed robbery–applies. Therefore, the
PSR looked to § 2B3.1, which provides for a base offense level of 20, and a 7
level enhancement if the firearm was discharged during the offense.
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discharge of a weapon during a robbery, law enforcement officials
will have an incentive to shoot at criminals during robberies in
an effort to increase their sentences.
As it happens, the Circuits seem to be split on this
question. In United States v. Gordon, 64 F.3d 281 (7th Cir.
1995), the Seventh Circuit confronted the situation where an
armed guard in a bank told Kevin Gordon (“Gordon”), a bank
robber, “Don’t move, or I’ll shoot.” Gordon disregarded this
instruction, and the armed guard shot him. The government argued
that “because Gordon struggled with the security guard after
being told to stop struggling or be shot, Gordon ‘induced . . .
or willfully caused’ the discharge of a firearm.” Id. at 283.
The Seventh Circuit rejected this argument. It reasoned that
both “induce” and “willfully cause” “contain an element of
specific volition, an actual intent or desire that one’s actions
create the specific result.” Id. “A criminal would have to be
suicidal to intend that a guard discharge a firearm during a
robbery . . . . [and] [w]e do not think the Guidelines were
intended to cover such an extreme and unlikely possibility.” Id.
The court went further, though, and held that “a defendant may
not properly be given a sentence adjustment under § 2B3.1 where a
non-participant in the crime discharges a firearm.” Id. at 284;
see also United States v. Mendola, 807 F. Supp. 1063, 1064
(S.D.N.Y. 1992) (denying the enhancement where an armored truck
guard discharged a firearm while pursuing the robbers).
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The Eleventh Circuit split with the Seventh’s broad holding
in United States v. Williams, 51 F.3d 1004 (11th Cir. 1995),
overruled on unrelated grounds in Jones v. United States, 119 S.
Ct. 1215 (1999). In that case, Alphonzo Leon Williams
(“Williams”) had attempted to carjack Scott Whitehead and Tim
Donaldson (“Donaldson”) at gunpoint. Donaldson fired a pistol at
Williams, who retreated. The Eleventh Circuit held that, because
Williams induced Donaldson to fire in self-defense, the discharge
of the firearm was fairly attributed to Williams. See id. at
1011; see also United States v. Triplett, 104 F.3d 1074, 1083
(8th Cir. 1997) (“The guidelines do not require that the
defendant, as opposed to an accomplice or co-conspirator, have
fired the weapon. Rather, there merely must be evidence, as
there is in this case, that a weapon was discharged during the
robbery.”).
Though Gordon and Williams diverge irreconcilably on the
question of whether a defendant can be given a 7-level
enhancement under § 2B3.1(b)(2) where a non-participant
discharges the firearm, we feel that we are constrained by the
plain language of § 1B1.3 to permit the enhancement on these
facts. Under § 1B1.3, Roberts is liable for “all acts and
omissions . . . [that he] aided, abetted, . . . induced or
willfully caused[.]” Roberts unquestionably induced and
willfully caused Deputy Gray to fire his handgun. Thibodeaux had
grabbed Deputy Gray’s gun and Roberts was smashing Deputy Gray in
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the face with his fists and the handcuffs he was wearing. Deputy
Gray feared for his life and sought to empty his weapon to
prevent Roberts and Thibodeaux from using his own gun on him. By
aiding and abetting Thibodeaux in wresting control of the gun
away from Deputy Gray, Roberts induced Gray to fire the gun into
the ground, and the 7-level increase is therefore proper.
We emphasize that the Seventh Circuit in Gordon found that
Gordon could not be said to have willfully caused the discharge
of the firearm because he did not intend or desire that his
specific actions (struggling with the armed guard) would give
rise to the discharge of the firearm. Here, on the other hand,
we think it beyond question that Roberts’s specific actions
(punching Deputy Gray in the face) willfully caused Deputy Gray
to fire his handgun. Therefore, we find Gordon distinguishable,
and hold, on these facts, that the 7-level enhancement is proper.
As mentioned previously, Roberts raised many other
complaints on appeal. He objected to the PSR’s refusal to apply
the base offense level applicable where the defendant possesses
the firearm for a lawful sporting purpose, to a 2-level increase
for possession of a stolen firearm, to a 4-level increase for
possession of a firearm in connection with another offense, to
the cross reference to the armed robbery statute, to a 4-level
increase imposed because the victim sustained serious bodily
injury, to a 2-level increase for physically restraining the
victim to facilitate an escape, to a 1-level increase for
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stealing the victim’s firearm and finally, to a 3-level increase
for the official status of the victim. Upon careful review of
these claims, we deem them devoid of merit and frivolous. We
therefore affirm.
IV. Conclusion
We hold that Roberts is properly accountable for the
discharge of a firearm in the course of an armed robbery, where
Roberts’s actions induced the victim to fire the weapon. Because
the district court did not, therefore, err in its application of
the Sentencing Guidelines, we affirm Roberts’s sentence.
AFFIRMED.
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