PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4217
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERNEST LEE WILLIAMS, JR., a/k/a Big Cat,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:14-cr-00173-H-1)
Argued: September 23, 2016 Decided: November 10, 2016
Before TRAXLER, SHEDD, and FLOYD, Circuit Judges.
Vacated and remanded by published opinion. Judge Floyd wrote
the opinion, in which Judge Traxler and Judge Shedd joined.
ARGUED: Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Donald
Russell Pender, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara,
Federal Public Defender, Stephen C. Gordon, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
FLOYD, Circuit Judge:
Ernest Lee Williams, Jr., was charged with attempting to
enter a bank with the intent to commit a felony affecting it,
and a larceny, all in violation of 18 U.S.C. § 2113(a).
Williams pleaded guilty to the charge, and was then sentenced
under the robbery guideline, U.S.S.G § 2B3.1. Williams appeals
his sentence, arguing that the robbery guideline is inapplicable
in this case because his indictment contained no mention of the
robbery element of force and violence, intimidation, or
extortion. We agree with Williams, and we therefore vacate his
sentence and remand this matter for resentencing.
I.
On January 21, 2014, Williams approached a Southern Bank
building (the “Bank") in Rocky Mount, North Carolina, while
wearing gloves and covering his face in a hood. Williams
entered the Bank’s exterior doors into an anteroom, but before
he could enter past the interior doors, a teller who believed
she recognized Williams from a previous robbery locked both the
interior and exterior doors. The teller then asked Williams
through an intercom whether Williams had an account with the
Bank, and Williams replied that he did, but that he had left his
bank card in his car. The teller unlocked the exterior doors,
and instructed Williams to use the drive-up window. Williams
returned to his car, but then drove off.
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The police were notified and given a description of
Williams’s vehicle. The police stopped Williams shortly
thereafter, and in a show-up, Williams was identified by a Bank
employee as the person who had tried to enter earlier. After
being read his rights, Williams admitted to the police that --
in need of money -- he cased the Bank, and then wore gloves and
covered part of his face. He had neither a gun nor a note with
him when he tried to enter the Bank. Williams insisted that he
had simply planned to tell the bank tellers to put the Bank’s
money in his bag.
On August 27, 2014, a federal grand jury in the Eastern
District of North Carolina indicted Williams for violating 18
U.S.C. § 2113(a). In relevant part, the grand jury charged
Williams with “attempt[ing] to enter a bank . . . with the
intent to commit in such bank a felony affecting such bank, in
violation of a statute of the United States, and a larceny, all
in violation of Title 18, United States Code, Section 2113(a).”
J.A. 7. On January 6, 2015, Williams pleaded guilty to the
charge.
Violations of § 2113(a) are potentially covered by four
Sentencing Guideline sections -- of relevance here are U.S.S.G.
3
§ 2B3.1 (Robbery) and § 2B2.1 (Burglary). 1 Following the plea,
the probation officer calculated Williams’s imprisonment range
under the Guidelines by using the robbery guideline, U.S.S.G.
§ 2B3.1. Specifically, the probation officer calculated
Williams’s imprisonment range at 37 to 46 months. This range
derived from a total offense level of 19 and a criminal history
category of III. Section 2B3.1 provided a base offense level of
20, which was increased by two levels because Williams’s crime
targeted a financial institution. See U.S.S.G § 2B3.1(b)(1).
The resulting offense level of 22 was then reduced by three
levels for acceptance of responsibility, resulting in a final
offense level of 19.
Williams objected to the application of U.S.S.G. § 2B3.1 to
his offense. Williams contended that the indictment to which he
pleaded guilty described an attempted burglary, not an attempted
robbery, because it did not reference force or violence. Thus,
as between the two relevant guidelines that could apply to a
violation of § 2113(a) –- the robbery guideline and the burglary
guideline -- Williams insisted that he should be sentenced under
the latter. Williams reasoned that if the burglary guideline
1 A violation of § 2113(a) may also implicate U.S.S.G.
§ 2B3.2 (Extortion by Force or Threat of Injury or Serious
Damage) or U.S.S.G § 2B1.1 (Larceny, Embezzlement, and Other
Forms of Theft). See U.S.S.G. App’x A. Both parties, however,
agree that neither guideline applies in this case.
4
was used, his total offense level would be 10, which in this
case would yield an imprisonment range of only 10 to 16 months.
The probation officer, meanwhile, contended that the
robbery guideline applied in this case, because it -- unlike the
burglary guideline -- contained an enhancement accounting for
the fact that Williams targeted a financial institution.
On April 8, 2015, Williams’s sentencing hearing took place.
After hearing both sides’ arguments, the district court was
convinced that the robbery guideline was appropriate in this
case because it addressed the targeting of financial
institutions. The district court found Williams’s imprisonment
range under the robbery guideline to be 37 to 46 months, and
sentenced him to a term of 38 months. This appeal followed.
II.
On appeal, Williams contends that his sentence should have
been calculated using the burglary guideline, rather than the
robbery guideline. We review challenges to the district court’s
guideline selection de novo. United States v. Davis, 202 F.3d
212, 218 (4th Cir. 2000). We agree with Williams that the
district court’s selection of the robbery guideline was
erroneous, because only the burglary guideline applies here.
A.
The Sentencing Guidelines direct a sentencing court to
“[d]etermine the offense guideline section . . . applicable to
5
the offense of conviction.” U.S.S.G. § 1B1.2(a). At times,
however, “the offense of conviction ‘appears to fall under the
express terms of more than one guideline[.]’” United States v.
Boulware, 604 F.3d 832, 836 (4th Cir. 2010) (brackets omitted)
(quoting United States v. Lambert, 994 F.2d 1088, 1092 (4th Cir.
1993)). In such cases, “the sentencing court must choose the
guideline that is ‘most applicable’ by comparing the guideline
texts with the charged misconduct, rather than the statute
(which may outlaw a variety of conduct implicating several
guidelines) or the actual conduct (which may include factors not
elements of the indicted offense).” Id. (emphasis added)
(internal quotation marks and brackets omitted) (quoting
Lambert, 994 F.2d at 1092).
The charge that Williams pleaded guilty to plainly
describes an attempted burglary, not an attempted robbery.
Williams was charged with a violation of § 2113(a), which
provides:
Whoever, by force and violence, or by intimidation,
takes, or attempts to take, from the person or
presence of another, or obtains or attempts to obtain
by extortion any property or money or any other thing
of value belonging to, or in the care, custody,
control, management, or possession of, any bank . . .;
or
Whoever enters or attempts to enter any bank . . ., or
any building used in whole or in part as a bank . . .,
with intent to commit in such bank . . ., or part
thereof, so used, any felony affecting such bank . . .
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and in violation of any statute of the United States,
or any larceny--
Shall be fined under this title or imprisoned not more
than twenty years, or both.
18 U.S.C. § 2113(a). “As its text makes clear, subsection
2113(a) can be violated in two distinct ways: (1) bank robbery,
which involves taking or attempting to take from a bank by force
[and violence], intimidation, or extortion; and (2) bank
burglary, which simply involves entry or attempted entry into a
bank with the intent to commit a crime therein.” United States
v. Almeida, 710 F.3d 437, 440 (1st Cir. 2013) (emphasis added).
Williams was indicted for attempting to enter a bank with
an intent to commit a felony and larceny therein -- i.e., a bank
burglary. Moreover, his indictment failed to reference “the
element of ‘force and violence, or [extortion or] intimidation’
which is required for conviction of bank robbery” under
§ 2113(a). United States v. Ketchum, 550 F.3d 363, 365 n.1 (4th
Cir. 2008) (quoting United States v. Carter, 540 F.2d 753, 754
(4th Cir. 1976)). Therefore, when one compares the applicable
burglary and robbery guidelines with the language of Williams’s
indictment, it is clear that Williams should have been sentenced
under the burglary guideline. 2
2
Cf. Almeida, 710 F.3d at 439–43 (vacating a § 2113(a)-
defendant’s sentence under the robbery guideline, because the
district court did not exclusively consider the indictment
(Continued)
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B.
In selecting the robbery guideline over the burglary
guideline, the district court stressed that only the robbery
guideline contained an enhancement for the targeting of
financial institutions (the “Bank Enhancement”) like the one
Williams targeted. The government defends this selection by
citing two unpublished Fourth Circuit cases that justified the
use of the robbery guideline for a § 2113(a) violation on the
basis of the Bank Enhancement: United States v. Sutton, 401 F.
App’x 845 (4th Cir. 2010) (per curiam), and United States v.
Johnson, 68 F. App’x 402 (4th Cir. 2003) (per curiam). Because
those cases do not justify imposing a robbery guideline-based
sentence on a defendant that only pleaded guilty to an attempted
burglary, the district court’s selection was erroneous.
To begin, Johnson is distinguishable. Johnson held that
where an indictment for violating § 2113(a) charges an attempt
to obtain property from a bank via extortion, the robbery
guideline is more appropriate than the extortion guideline
because only the robbery guideline “permits an enhancement for
attempting to obtain money from a bank.” 68 F. App’x at 405.
language that “tracked that of § 2113(a)’s bank burglary prong,”
but instead improperly considered trial testimony “which
described conduct that amounted to bank robbery, i.e., taking
from a bank by force, violence, or intimidation”).
8
In Johnson, however, the indictment charged the elements of both
robbery and extortion, id., and so the Bank Enhancement merely
functioned as a sensible tie-breaker between the robbery and
extortion guidelines. In contrast, only the burglary guideline
applies in this case, because Williams’s indictment omits the
robbery element of force and violence, intimidation, or
extortion. As such, Johnson provides no sanction for the
district court’s use of the inapplicable robbery guideline.
Sutton is distinguishable for similar reasons. As in
Johnson, a panel of this Court in Sutton relied on the Bank
Enhancement in selecting the robbery guideline over an
alternative guideline (there, the burglary guideline) to
sentence a defendant convicted of violating § 2113(a). Sutton,
401 F. App’x at 847–48. But as in Johnson, the panel in Sutton
was satisfied that the indictment at issue actually described
“robberies.” Id. at 848. Because Williams’s indictment cannot
be read to describe even an attempted robbery, the government’s
reliance on Sutton here is misplaced. 3
3 We acknowledge, however, that the panel in Sutton may have
incorrectly characterized the indictment at issue as describing
“robberies.” In the paraphrased version of the indictment
offered in the Sutton opinion, there was no reference to the
robbery element of force and violence, intimidation, or
extortion. See 401 F. App’x at 847 (“[T]he indictment charged
Fields and his codefendants with breaking into and stealing
United States currency from automated teller machines containing
‘money in the care, custody[,] and control of Lumbee Guaranty
(Continued)
9
C.
In this case, the precedent we find most instructive is
this Court’s published decision in Boulware. There, the
indictment charged the defendant with making a false statement
to a bankruptcy court via nondisclosure of prior bankruptcies;
however, the indictment did not charge that the nondisclosure
was part of a plan to defraud creditors. Boulware, 604 F.3d at
835-36. This Court reasoned that the perjury guideline should
apply, rather than the fraud guideline, because the perjury
guideline best fit the offense described in the indictment. Id.
at 836. It so held despite the objecting party’s observation
that the fraud guideline contained a specific offense
characteristic referencing bankruptcy proceedings, while the
perjury guideline lacked any analogous provision. Id. This
Court dismissed that observation as being “of little
consequence,” reasoning that the fraud guideline was unfitting
where “the gravamen of the charge was that [the defendant]
Bank, a bank whose deposits were then insured by the Federal
Deposit Insurance Corporation,’ in violation of 18 U.S.C.
§ 2113(a).”). To the extent that the unpublished Sutton opinion
implies that the element of force and violence, intimidation, or
extortion is unnecessary to describe a robbery, we expressly
reject that position, for it is contrary to well-settled law.
See Ketchum, 550 F.3d at 365 n.1; Carter, 540 F.2d at 754; see
also Almeida, 710 F.3d at 440—41.
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interfered with the bankruptcy court’s administration of
justice, not that she defrauded any creditors.” Id.
Likewise, the robbery guideline’s use of the Bank
Enhancement is of little consequence here, because the gravamen
of Williams’s charge was that he attempted to commit a burglary,
not a robbery. Simply put, where an indictment omits an element
of an offense, the guideline corresponding to that offense is
inapplicable, even if the alternative guideline’s provisions do
not account for certain details that the indictment charges.
Nonetheless, we do not consider whether the absence of a
potentially relevant provision (here, the Bank Enhancement)
under the correct guideline justifies a variance at sentencing.
We leave that issue for the district court to address on remand
in the first instance.
III.
For the foregoing reasons, we vacate Williams’s sentence,
and remand this case to the district court for resentencing
under the burglary guideline.
VACATED AND REMANDED
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