United States Court of Appeals,
Eleventh Circuit.
No. 94-6525.
UNITED STATES of America, Plaintiff-Appellee,
v.
John Willie MALONE, Jr., Defendant-Appellant.
March 27, 1996.
Appeal from the United States District Court for the Southern
District of Alabama. (No. CR 93-00242-RV), Richard W. Vollmer, Jr.,
Judge.
Before TJOFLAT, Chief Judge, DYER and GARTH*, Senior Circuit
Judges.
GARTH, Senior Circuit Judge:
Defendant John Willie Malone, Jr., who was one of two
defendants, entered a conditional plea of guilty to each count of
a three-count indictment, charging him with conspiracy to commit
armed robbery of an automobile, the substantive crime of armed
robbery of an automobile, and use of a firearm during a crime of
violence. The district court sentenced Malone to a total of 97
months incarceration, joint and several restitution of $554.00, and
a special assessment of $150. On appeal, Malone contests the
district court's imposition of a two-level "vulnerable victim"
enhancement to his sentence. See U.S.S.G. § 3A1.1.1
*
Honorable Leonard I. Garth, Senior U.S. Circuit Judge for
the Third Circuit, sitting by designation.
1
Malone had also originally raised a Double Jeopardy
challenge to multiple punishments under 18 U.S.C. § 2119 and 18
U.S.C. § 924(c). At oral argument, however, Malone conceded that
this ground for appeal could not be sustained in light of the
Eleventh Circuit's decisions in United States v. Moore, 43 F.3d
568, 574 (11th Cir.1995), cert. denied, --- U.S. ----, 116
S.Ct.2d 212, 133 L.Ed.2d 144 (1995); and United States v.
We have jurisdiction pursuant to 18 U.S.C. § 3742(b) and 28
U.S.C. § 1291. We hold that on this record, the evidence discloses
that Malone specifically targeted his carjacking victim based on
the latter's professional and legal obligations as a cab driver
dispatched to pick up a fare. The dispatched cab driver in this
case was thus a victim particularly susceptible to criminal
conduct. We therefore affirm the sentence imposed on Malone by the
district court.
I.
At or around noon of November 16, 1993, John Willie Malone,
Jr. and Marvin Osbey called the Yellow Cab Company and asked for a
cab to pick them up in the Hart Street area of Mobile, Alabama, a
residential neighborhood populated by few people and which had no
busy streets. Philemon Canfield, a taxi driver, responded to the
call. Canfield testified that under a City of Mobile ordinance, he
was required to respond to every call given by the dispatcher and
to pick up every passenger, unless the passenger is "so drunk that
[he or she] can't stand up" or is "very argumentative."
(Transcript of Sentencing, May 9, 1993, at 54). Malone seated
himself in the front seat, and Osbey sat in the back seat.
Once in the cab, Osbey pulled out a .38 caliber revolver, held
it against Canfield's neck, and cocked the hammer. Malone ripped
Martin, 38 F.3d 534, 535 (11th Cir.1994), cert. denied, --- U.S.
----, 115 S.Ct. 2290, 132 L.Ed.2d 292 (1995). Moore and Martin
hold that the Double Jeopardy Clause does not bar the imposition
of cumulative punishments under both 18 U.S.C. § 2119 and 18
U.S.C. § 924(c) because even though these two statutes fail the
same elements test of Blockburger v. United States, 284 U.S. 299,
52 S.Ct. 180, 76 L.Ed. 306 (1932), Congress intended cumulative
punishments under both statutes.
out the two radios in the cab to prevent Canfield from
communicating with anyone. The defendants forced Canfield, at
gunpoint, to drive around several blocks. While they were driving
around, Malone searched Canfield and the cab and took all of
Canfield's money. They finally stopped about three blocks away
from the initial pick-up location. Malone then told Canfield to
get out of the cab, and he and Osbey stole the cab.
On December 16, 1993, Malone was indicted for (1) conspiracy
to commit armed robbery of an automobile in violation of 18 U.S.C.
§ 371, (2) armed robbery of an automobile in violation of 18 U.S.C.
§ 2119, and (3) use of a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c).
On February 9, 1994, Malone moved to dismiss Counts Two and
Three, on the ground that they were each lesser included offenses
of Count One and that to charge him with all three counts would
subject him to multiple punishments for the same offense in
violation of the Fifth Amendment Double Jeopardy Clause. The
district court denied the motion by endorsement order of February
10, 1994.
On February 16, 1994, Malone entered a conditional plea of
guilty to all counts, reserving his right to appeal the district
court's denial of his motion to dismiss Counts Two and Three of the
indictment.
By Order of April 22, 1994, the district court found, based on
the Presentencing Investigation Report, that Canfield was an
unusually vulnerable victim because the defendants had called for
a cab, knowing that the cab driver would have to respond to the
call, intending to rob the cab driver. (Order of April 22, 1994 at
2).
At the sentencing hearing, at which Canfield and both
defendants testified, the district court stated:
This Court finds that under the circumstances of this
case, this individual was subject particularly to this type of
criminal conduct when he drives a cab and is required to go
into areas of danger where he is in an area or at least your
client testified, there were very few people on the street in
this area.
(Transcript of Sentencing Hearing, June 1, 1994, at 117-18). The
district court then upwardly adjusted Malone's offense level by two
levels pursuant to U.S.S.G. § 3A1.1. Malone objected to the
"vulnerable victim" sentence enhancement.
By Judgment entered June 1, 1994, the district court sentenced
Malone to 37 months for Counts 1 and 2 to run concurrently; and 60
months for Count 3, to run consecutively, for a total of 97 months
of incarceration. The court also imposed joint and several
restitution of $554.00 and a total special assessment of $150.
II.
A.
Malone argues that the district court erred in enhancing his
sentence under U.S.S.G. § 3A1.1 on the ground that the victim in
this case, being a cab driver, was particularly vulnerable to
carjackings. " "The district court's application of § 3A1.1
presents a mixed question of law and fact, which we review de
novo.' " United States v. Thomas, 62 F.3d 1332, 1344 (11th
Cir.1995) (quoting United States v. Davis, 967 F.2d 516, 523 (11th
Cir.1992), rehearing on other grounds, 30 F.3d 108 (11th
Cir.1994)). We have recognized, however, that the district court's
determination of a victim's "vulnerability" is essentially a
factual finding to which we should give due deference. See United
States v. Salemi, 26 F.3d 1084, 1087 (11th Cir.1994) ("The
determination of vulnerability is a factual finding which is
entitled to due deference on review") (citation omitted), cert.
denied, --- U.S. ----, 115 S.Ct. 612, 130 L.Ed.2d 521 (1994); 18
U.S.C. § 3742(e) ("The court of appeals ... shall give due
deference to the district court's application of the guidelines to
the facts.").2 Further, the district court's findings of
historical fact cannot be reversed unless clearly erroneous.
United States v. Davis, 967 F.2d 516, 523 (11th Cir.1992),
rehearing on other grounds, 30 F.3d 108 (11th Cir.1994).
B.
Section 3A1.1 of the Sentencing Guidelines provides for a
two-level upward adjustment to the defendant's offense level:
If the defendant knew or should have known that a victim of
the offense was unusually vulnerable due to age, physical or
mental condition, or that a victim was otherwise particularly
susceptible to the criminal conduct.
U.S.S.G. § 3A1.1. "This adjustment applies to offenses where an
unusually vulnerable victim is made a target of criminal activity
2
The "due deference" standard in 18 U.S.C. § 3742 "serves as
an additional caution against overly intense judicial review."
United States v. Mejia-Orosco, 868 F.2d 807, 808 (5th Cir.1989),
cert. denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L.Ed.2d 602
(1989). The "purported purpose" of the "due deference" clause of
§ 3742 is " "to give the court of appeals flexibility in
reviewing the application of a guideline standard that involves
some subjectivity.' " Id. at 809 (citing Congressional Record at
H11257 (1988)). As we stated in United States v. Long, 935 F.2d
1207 (11th Cir.1991), "[w]e review the factual findings
underlying the district judge's decision for "clear error,' but
we review his application of the sentencing guidelines to those
facts with only "due deference.' " Id. at 1211.
by the defendant." (Application Note 1 to U.S.S.G. § 3A1.1). The
commentary to section 3A1.1 provides that:
The adjustment would apply, for example, in a fraud case where
the defendant marketed an ineffective cancer cure or in a
robbery where the defendant selected a handicapped victim.
But it would not apply in a case where the defendant sold
fraudulent securities by mail to the general public and one of
the victims happened to be senile. Similarly, for example, a
bank teller is not an unusually vulnerable victim solely by
virtue of the teller's position in a bank.
(Application Note 1 to U.S.S.G. § 3A1.1).
C.
We have held that the applicability of a "vulnerable victim"
sentence enhancement must be determined on a case-by-case basis,
United States v. Long, 935 F.2d 1207, 1210 (11th Cir.1991), and it
is appropriate only where the defendant targets the victim based on
the latter's "unique characteristics" that make the victim more
vulnerable or susceptible to the crime at issue than other
potential victims of that crime. United States v. Morrill, 984
F.2d 1136, 1137 (11th Cir.1993) (en banc) ("Morrill (II)"); Long,
935 F.2d at 1210.
In such a case, the defendant is deemed more culpable than he
otherwise would be had he committed that same crime on another
victim who did not share those vulnerable characteristics. Morrill
(II), 984 F.2d at 1137. See United States v. Davis, 967 F.2d 516,
524 (11th Cir.1992) (" "The vulnerability that triggers § 3A1.1
must be an "unusual' vulnerability which is present in only some
victims of that type of crime. Otherwise, the defendant's choice
of a likely victim does not show the extra measure of criminal
depravity which § 3A1.1 intends to more severely punish.' ")
(quoting United States v. Moree, 897 F.2d 1329, 1335 (5th
Cir.1990)), rehearing on other grounds, 30 F.3d 108 (11th
Cir.1994). "[A] determination under section 3A1.1 of the
sentencing guidelines depends heavily on the unique factual pattern
of the case, that determination cannot be considered simply a legal
question." 100th Cong., 2d Sess. 151 Cong.Rec. 11,257 (1988).
Thus we have been wary about concluding that any particular
class of persons, including and especially "typical" victims of the
crime at issue, are automatically "vulnerable victims" for purposes
of § 3A.1. For instance, in United States v. Tapia, 59 F.3d 1137,
1143 (11th Cir.1995), where the defendants were convicted of a jail
cell beating of an incarcerated government informant, we affirmed
the "victim vulnerability" enhancement which the district court had
imposed on the defendants' sentences. The district court had
declined to hold that the victim there was a "vulnerable victim"
based solely on the fact that he was a government informant,
arguably a typical victim of a jail cell beating. Nonetheless, the
district court concluded, and we agreed, that a "vulnerable victim"
sentence enhancement was peculiarly appropriate in that case
because the victim "as an individual, was particularly vulnerable
by virtue of his incarceration with Appellants and his inability to
escape, and that [the victim] was targeted because of this
vulnerability." Id.
In Long, 935 F.2d 1207, we held that a black family was not,
by their race alone, "automatically" "vulnerable victims" of
cross-burning. Id. at 1209. Similarly, in Morrill (II), 984 F.2d
1136, we held that bank tellers as a class were not "automatically"
"vulnerable victims" of bank robberies, by virtue of their
positions as bank tellers. Id. at 1138. In so holding, however,
we cautioned:
This is not to say that bank tellers in individual cases never
may be particularly susceptible or otherwise vulnerable
victims of a bank robbery. Enhancement is appropriate under
section 3A1.1 when a particular teller-victim possesses unique
characteristics which make him or her more vulnerable or
susceptible to robbery than ordinary bank robbery victims and
thus make the particular bank robber more culpable than the
ordinary perpetrator.
Id. at 1138.3 See also United States v. Segien, 986 F.2d 439, 440-
41 (11th Cir.1993) (remanding case for resentencing of bank robber
in light of Morrill (II) and instructing trial court to make a
"fact-specific" determination of whether "vulnerable victim"
enhancement applied). But see United States v. Salemi, 26 F.3d
1084, 1088 (11th Cir.1994) (holding that a six-month-old baby was
a "vulnerable victim" to kidnapping within the meaning of § 3A1.1,
even though the district court found that the defendant's mental
and emotional condition clouded his ability to perceive the baby's
peculiar vulnerability, and even though the baby was not harmed),
cert. denied, --- U.S. ----, 115 S.Ct. 612, 130 L.Ed.2d 521 (1994).
Enhancing a defendant's sentence solely based on the victim's
membership in an arguably "vulnerable" class does not comport with
the purposes of § 3A1.1, because the "vulnerable victim" adjustment
3
We had earlier held in United States v. Morrill, 963 F.2d
386 (11th Cir.1992) ("Morrill (I) "), that bank tellers as a
class were "vulnerable victims" to bank robbery within the
meaning of § 3A1.1. Thereafter, on remand from the Supreme
Court, we held en banc that bank tellers were not, as a class,
"vulnerable victims" under § 3A1.1.
Subsequent to the sentencing of the defendant in
Morrill (II), the commentary to § 3A1.1 was amended in 1992
to explicitly provide that "[A] bank teller is not an
unusually vulnerable victim solely by virtue of the teller's
position in a bank."
"focuses chiefly on the conduct of the defendant" and should be
applied only where "the defendant selects the victim" due to the
victim's perceived vulnerability to the offense. Long, 935 F.3d at
1210.
III.
The particular facts of the present case lead us to conclude
that the district court properly enhanced Malone's sentence under
§ 3A1.1. Malone testified that he and Osbey had called the cab
company because they had wanted a cab driver to come to them, with
the intent of robbing the cab driver. (Transcript of Sentencing
Hearing, June 1, 1994, at 86). Malone testified that calling for
a cab saved them from having to go out and find a victim. Id. As
a cab driver, Canfield was obligated both by his functions as a cab
driver and by a Mobile city ordinance to respond to a dispatcher's
orders. In doing so on this occasion, Canfield was obliged to
drive to the rather deserted neighborhood of Hart Street, and then
admit two strangers (Malone and Osbey) to his cab. We need not,
and do not, address here the question of whether all cab drivers,
by virtue of their vocation, are to be classed as "vulnerable
victims," for purposes of sentence enhancement under § 3A1.1, if
they are carjacked. However, we are satisfied that a "vulnerable
victim" enhancement is appropriate under the particular aspects of
this case. Here, the defendants specifically targeted a driver
such as Canfield, knowing that his obligations as a dispatched cab
driver made him more vulnerable to carjackings than other drivers
of cars.
We are persuaded that this case is distinguishable from
Morrill (II), in which this court held that bank tellers as a class
are not per se "vulnerable victims" under 3A1.1. We stated in
Morrill (II) that because "[b]ank tellers are typical victims of
bank robberies; many, if not most bank robberies are perpetrated
against bank tellers." Id. at 1138. Thus, in Morrill (II), we
concluded that the Sentencing Guidelines, in setting the base
offense level for bank robberies, had already taken into account
the culpability of bank robbers vis a vis bank tellers.4
In contrast to bank robbers, who must inevitably victimize
bank tellers to carry out their crime, carjackers can victimize any
driver of a vehicle. However, few drivers have an obligation to
stop or even roll down their windows for a stranger, let alone
allow strangers to enter their vehicles. Dispatched cab drivers,
in contrast, are obligated by the very nature of their calling to
drive to unfamiliar and often dangerous pick-up locations, permit
strangers into their cabs, and drive them to their destinations.
In setting the base offense level for carjackers, the Sentencing
Guidelines do not contemplate the added culpability of a defendant
who chooses to target a dispatched cab driver rather than another
driver.5
In a case such as the present one, where carjackers have
4
Section 2B3.1 of the Sentencing Guidelines provides a base
offense level of 30 for robbery, § 2B3.1(a), and an additional 2
level increase if "the property of a financial institution ...
was taken, or if the taking of such property was an object of the
offense." U.S.S.G. § 2B3.1(b)(1)(A).
5
Section 2B3.1 of the Sentencing Guidelines provides a base
offense level of 30 for robbery, § 2B3.1(a), and an additional 2
level increase if "the offense involved carjacking." U.S.S.G. §
2B3.1(b)(1)(B).
specifically targeted a dispatched cab driver, knowing that the cab
driver had the unique obligation to drive to a pick-up point of the
carjackers' choice and then to let them into his cab, the cabdriver
was especially vulnerable to robbery and to carjacking. A
carjacker, in so targeting his victim, is more culpable than other
carjackers and warrants a sentence enhancement under U.S.S.G. §
3A1.1.
IV.
For the foregoing reasons, we will affirm the sentence of the
district court.
DYER, Senior Circuit Judge, dissenting:
The majority holds "that a "vulnerable victim' enhancement is
appropriate under the particular aspects of this case," reasoning
that "[h]ere, the defendants specifically targeted a driver such as
Canfield, knowing that his obligations as a dispatched cab driver
made him more vulnerable to carjackings than other drivers of
cars." The majority relies upon Malone's testimony that he and
Osbey "called the cab company because they had wanted a cab driver
to come to them, with the intent of robbing the cab driver," and
"that calling a cab saved them from having to go out and find a
victim." In my view, this is not evidence that the defendants
targeted Canfield as their victim.
Section 3A1.1 of the Sentencing Guidelines provides for
enhancement of the offense level "[i]f the defendant knew or should
have known ... that a victim was ... particularly susceptible to
the criminal conduct. U.S.S.G. § 3A1.1 (emphasis added). In
determining whether to enhance a sentence for a "vulnerable
victim," the focus is on the defendant's conduct. U.S. v. Long,
935 F.2d 1207, 1210 (11th Cir.1991). No evidence in the record
suggests the defendants knew or should have known that if they
called for a cab, the dispatched driver was obligated by city
ordinance to respond to the call. It is unreasonable to infer from
Malone's testimony that the decision to rob a dispatched cab driver
was motivated by the defendants' knowledge of the ordinance. Such
knowledge would be necessary, in my opinion, to prove that the
defendants targeted a dispatched cab driver because he was
particularly susceptible to carjacking. See id. ("Section 3A1.1
is intended to enhance the punishment for offenses where the
defendant selects the victim due to the victim's perceived
susceptibility to the offense.") (emphasis in original). At most,
Malone's testimony shows the defendants called for a cab out of
convenience, not due to any belief that the driver of a dispatched
cab made an easier target for carjacking than any other driver.
The majority has created a per se class of vulnerable victims
under § 3A1.1 consisting of all dispatched cab drivers who have a
legal duty to pick up a fare. Creation of this class results in
sentence enhancement for all defendants who select these
individuals as their victim, thus precluding application of § 3A1.1
on a case-by-case basis. Id. Just as bank tellers are not
automatically vulnerable victims by virtue of their positions as
bank tellers, United States v. Morrill, 984 F.2d 1136, 1138 (11th
Cir.1993) (en banc), dispatched cab drivers should not
automatically be vulnerable victims by virtue of their professional
or legal obligation to pick up a fare. This is not to say that
dispatched cab drivers can never be particularly susceptible to or
otherwise vulnerable victims of carjacking. For example, where a
defendant selects a dispatched cab driver because he knows the
driver cannot refuse the fare, or where a defendant requests a
specific driver because of unique characteristics that make him or
her more vulnerable to carjacking than the ordinary dispatched cab
driver, and thus make the defendant more culpable than the ordinary
carjacker, enhancement would be appropriate. See id.
In short, I see nothing in these circumstances indicating that
the dispatched cab driver was an "unusually vulnerable victim."
See U.S.S.G. § 3A1.1, comment. (n. 1). I would therefore reverse
the two-level enhancement under § 3A1.1.