[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 24, 2007
No. 06-16331 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00150-CR-01-WSD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRUCE EDWARD MCCREE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 24, 2007)
Before DUBINA, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Bruce McCree, proceeding through counsel, appeals his
conviction for armed bank robbery following a guilty plea without the benefit of a
plea bargain. McCree contends that the district court abused its discretion in
determining that a factual basis existed for his guilty plea and in denying his
motion to withdraw his guilty plea.
The relevant facts are as follows: McCree initially entered a plea of not
guilty to the charge of armed bank robbery. Later, however, McCree indicated that
he wished to plead guilty without the benefit of a plea agreement. The district
court held a hearing on the matter on July 5, 2006 (first plea hearing). During this
plea colloquy, McCree denied using force and violence, or intimidation, to secure
the money from the bank. Because this was an essential element of the offense of
armed bank robbery, the district court refused to accept his guilty plea at that time.
McCree appeared before the district court for a second time on July 20,
2006, where he again expressed his intention to plead guilty (second plea hearing).
McCree admitted during this second plea hearing that he handed a teller a demand
note warning, “This is a stick up, 20s and 50s only, don’t be a hero,” and that he
intended the note to cause the teller to give him the money. The district court
ultimately accepted McCree’s guilty plea and adjudicated him guilty of armed
bank robbery.
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At the first sentencing hearing, in September 2006, the district court initially
resolved the parties’ objections to the PSI, adopted the facts set forth in the PSI, as
amended, and calculated McCree’s total offense level. Thereafter, McCree spoke
and again denied that he was guilty of armed bank robbery. Instead, McCree
maintained that he was guilty of bank larceny, because he did not use force and
violence, or intimidation, to secure the money from the bank. Based on these
representations, the district court postponed sentencing, and ordered McCree to
submit a formal written motion to withdraw his plea.
After entertaining the parties’ arguments on the issue, the district court
denied McCree’s motion to withdraw his guilty plea and sentenced him to a term
of 155-months imprisonment at a second sentencing hearing in December 2006.
This appeal followed.
I.
We review for abuse of discretion a district court’s determination that a plea
had a factual basis. United States v. Lopez, 907 F.2d 1096, 1100-01 (11th Cir.
1990). A district court abuses its discretion if it accepts a defendant’s guilty plea
when there was no evidence “from which it could reasonably find that the
defendant was guilty.” Id. at 1100.
A district court, before accepting a plea, must determine whether “the
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conduct which the defendant admits constitutes the offense . . . to which the
defendant has pleaded guilty.” Id. (citation omitted). “The purpose of this
requirement is to protect a defendant who mistakenly believes that his conduct
constitutes the criminal offense to which he is pleading.” Id.
The elements of the offense of armed bank robbery are set forth in 18 U.S.C.
§ 2113(a), which provides, in relevant part, that:
(a) 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, credit union, or any savings
and loan association . . . [s]hall be fined under this title or imprisoned
not more than twenty years, or both.
18 U.S.C. § 2113(a). In this case, the only dispute between the parties is whether
there were sufficient facts to show that McCree used intimidation to secure the
bank funds.
We have defined intimidation as “an act that is reasonably calculated to put
another in fear.” United States v. Graham, 931 F.2d 1442, 1443 (11th Cir. 1991 )
(citing, with approval, United States v. Higdon, 832 F.2d 312 (5th Cir. 1987)).
“Proof of actual fear is not required in order to establish intimidation. Rather, it
may be inferred from conduct, words, or circumstances reasonably calculated to
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produce fear.” United States v. Jacquillon, 469 F.2d 380, 385 (5th Cir. 1972).1
Moreover, as we have explained, “Whether a particular act constitutes intimidation
is viewed objectively, and a defendant can be convicted under section 2113(a) even
if he did not intend for an act to be intimidating.” United States v. Kelley, 412 F.3d
1240, 1244 (11th Cir.), cert. denied, 126 S. Ct. 317 (2005). Thus, we inquire
whether “an ordinary person in the teller’s position reasonably could infer a threat
of bodily harm from the defendant’s acts.” United States v. Cornillie, 92 F.3d
1108, 1110 (11th Cir. 1996) (citation omitted). By contrast, “the subjective
courageousness or timidity of the victim is irrelevant[.]” Higdon, 832 F.2d at 315.
We have found intimidation where a defendant presented a teller with a note
that stated, “I have a gun. Give me all big bills or I will shoot you,” and the teller
testified that she was afraid. Jacquillon, 469 F.2d at 385-86. The court also found
that intimidation was present where a defendant handed a teller a note and “glared”
at her, and the teller testified that she was afraid. Graham, 931 F.2d at 1443.
Additionally, we have found intimidation where a defendant did not present a
demand note or display a gun to a teller, but did “aggressive[ly] leap onto the
[teller] counter,” within close proximity to a frightened teller, immediately before
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
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snatching money out of an open teller drawer. Kelley, 412 F.3d at 1243, 1245.
We conclude that the district court here did not abuse its discretion in
determining that a factual basis existed for McCree’s plea of guilt to the offense of
armed bank robbery. With respect to intimidation, the only element of the offense
at issue on appeal, McCree admitted during the second plea hearing that he handed
a demand note to the teller stating, “This is a stick-up. Give me your 20s and 50s.
Don’t be a hero,” and he intended the note to cause the teller to give him the bank’s
money.2 It would be objectively reasonable for a person standing in the bank
teller’s shoes to feel intimidated by the warning not to be a “hero,” and to believe
that the warning carries an implicit threat that if he did not produce the money,
harm to himself or herself, other bank employees, or to bank patrons, would result.
Cf. Jacquillon, 469 F.2d at 385-86.
Because the test for intimidation is an objective one, see Kelley, 412 F.3d at
1244, the subjective courageousness of the teller, or McCree’s intent, is irrelevant.
See Higdon, 832 F.2d at 315. McCree’s actions here satisfied the intimidation
prong of 18 U.S.C. § 2113(a), because a reasonable person standing in the teller’s
shoes could have been intimidated by the note into handing over the money. Thus,
2
We conclude that McCree’s reliance on United States v. Wagstaff, 865 F.2d 626 (4th
Cir. 1989), is misplaced. First, Wagstaff, a Fourth Circuit decision, is not binding on this Court.
Second, unlike McCree, the defendant in Wagstaff did not present a demand note to the teller.
See id. at 629.
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we hold that there was a factual basis for the district court’s determination that
McCree used intimidation to obtain the money from the bank, and the district court
did not abuse its discretion in accepting McCree’s guilty plea.3
II..
We review a district court’s denial of a request to withdraw a guilty plea for
abuse of discretion. United States v. Najjar, 283 F.3d 1306, 1307 (11th Cir. 2002).
“We will reverse . . . only if [that decision] is arbitrary or unreasonable.” Id.
According to Fed.R.Crim.P. 32(d), “[i]f a motion for withdrawal of a plea of
guilty . . . is made before sentence is imposed, . . . the court may permit withdrawal
of the plea upon a showing by the defendant of any fair and just reason.” This
Rule must be liberally construed. United States v. Buckles, 843 F.2d 469, 471
(11th Cir. 1988). Nevertheless, there is no absolute right to withdrawal of a guilty
plea prior to the imposition of a sentence. Id.
A defendant relying on Fed.R.Crim.P. 32(d) has the burden of establishing a
“fair and just reason” for withdrawal of his plea. Id. The district court, in
analyzing whether the defendant has met this burden, “may consider the totality of
the circumstances surrounding the plea.” Buckles, 843 F.2d at 471-72. Factors
3
Although McCree argues on appeal that the record shows that the district court erred in
relying, in part, on statements in the PSI to find intimidation, the district court did this only when
rejecting McCree’s motion for reconsideration. Therefore, we reject this argument.
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that may be considered include whether: (1) close assistance of counsel was
available; (2) the plea was knowing and voluntary; (3) judicial resources would be
conserved; and (4) the government would be prejudiced if the defendant were
allowed to withdraw his plea. Id. at 472 (internal citation omitted). “The timing of
the appellant's motion to withdraw also deserves . . . consideration.” United States
v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987).
“Clearly, in certain circumstances, the presumption of a knowing and
voluntary plea created by proceedings pursuant to Fed.R.Crim.P. 11, ‘although
imposing, is not insurmountable.’” Gonzalez-Mercado, 808 F.2d at 800, n.8
(citation omitted). “While Rule 11 is not insurmountable, there is a strong
presumption that the statements made during the colloquy are true.” Id.
We conclude that the district court here did not abuse its discretion in
denying McCree’s motion to withdraw his guilty plea. With respect to close
assistance of counsel, McCree admitted during the second plea hearing that he had
discussed the decision to plead guilty with his attorney, and that he was satisfied
with his attorney’s representation of him. Moreover, McCree acknowledged that
he discussed the charge, and each of its elements, with his attorney. Thus, it is
undisputed that McCree and his attorney discussed the intimidation element before
he pled guilty to armed bank robbery during the second plea hearing.
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Furthermore, even after McCree raised an issue at the first sentencing
hearing as to his guilt of armed bank robbery, he specifically informed the district
court that he was not asking for new counsel to be appointed, and he was
“satisfied” with what his attorney was able to do, “knowing what she has to do
outside of this case.” In addition, and perhaps most noteworthy, McCree, in fact,
was guilty of armed bank robbery. Therefore, McCree is unable to point to any
poor or incompetent advice from his attorney that adversely affected his decision to
plead guilty.
With respect to whether the plea was knowing and voluntary, McCree
verified during the second plea hearing that he had not consumed any alcohol or
taken any medication or illegal substance in the past twenty-four hours, that he was
pleading guilty voluntarily, and that he had not been promised anything in
exchange for pleading guilty. Moreover, McCree admitted that he had discussed
the charge of armed bank robbery with his attorney, and the government again
reiterated the elements of this offense at the second plea hearing. Also, the district
court applied each of the elements of the offense to McCree’s case, and McCree
indicated that he understood the government’s burden of proof, if the case
proceeded to trial. Throughout all of this, McCree never once contended that he
did not intimidate the teller into handing him the money. To the contrary, McCree
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specifically admitted that he understood the consequences of pleading guilty to
armed bank robbery, and that he was guilty of that offense.
With respect to judicial resources, the district court previously granted a
motion to continue the trial setting and conducted two plea hearings and two
sentencing hearings in this matter. Additionally, because McCree waited until the
end of the first sentencing hearing to profess his innocence, a probation officer
already prepared a PSI, the parties already reviewed this document and filed
written objections to it, and the district court already entertained and ruled upon the
parties’ objections as part of its calculation of McCree’s sentencing range. Given
all of this, we conclude that the district court did not err in finding that judicial
resources would not be conserved by allowing McCree to withdraw his guilty plea.
With respect to prejudice, the district court found that, while there was no
strong argument that the government would be prejudiced if McCree was permitted
to withdraw his plea, “a delay in any case[] . . . degrades the quality of witness
recollection and in that regard prejudices the presentation of the prosecution’s
case.” This finding is not unreasonable, considering that every delay in the
proceedings was attributable exclusively to McCree.
In sum, we conclude that the district court did not abuse its discretion in
denying McCree’s motion to withdraw his guilty plea. Accordingly, we affirm
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McCree’s conviction.
AFFIRMED.
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