[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
______________________________ ELEVENTH CIRCUIT
APR 18, 2001
No. 00-11878 THOMAS K. KAHN
CLERK
______________________________
D.C. Docket No.99-00011-CR-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY DEWAYNE FRANKS,
Defendant-Appellant.
______________________________
Appeal from the United District Court
for the Southern District of Alabama
______________________________
(April 18, 2001)
Before BIRCH and HULL, Circuit Judges, and O’NEILL*, District Judge.
O'NEILL, District Judge:
Defendant-Appellant Anthony Dewayne Frank appeals the district court’s
*
Honorable Thomas N. O’Neill, Jr., U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.
sentencing determination that he be given a two level increase in his offense level
for committing a crime against a “vulnerable victim.” See U.S. Sentencing
Guidelines Manual § 3A1.1(b). Frank also appeals the district court’s denial of a
two-level downward adjustment for acceptance of responsibility under U.S.S.G. §
3E1.1. We affirm both rulings.
I. BACKGROUND
On October 10, 1997, Frank telephoned for a taxicab. Shortly thereafter, a
cab arrived and pulled away with Frank in the back seat. Upon arrival at his
destination, Frank took the cab driver’s keys and money at gunpoint and ordered
him to get into the trunk of the cab. Frank then got into the driver’s seat and drove
away. Witnesses contacted the police and, after attempting to flee, Frank
eventually was apprehended. A .22 caliber revolver was found hidden between the
mattress and box spring of the bed behind which he was hiding. A black bag
containing clothing, .22 caliber ammunition and a note which read: “This is a stick-
up (No Signal) No Large Bills. I am armed” were later discovered in the back seat
of the cab.
In January 1999, Frank was indicted by a grand jury for carjacking in
violation of 18 U.S.C. § 924(c)(1), and for using and carrying a firearm during a
crime of violence in violation of 18 U.S.C. § 924(c)(1). Following a trial, he was
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convicted on both counts. The pre-sentence investigation report (“PSI”)
submitted for the court’s review at the sentencing hearing recommended that Frank
be given a two level increase in offense level for committing a crime against a
“vulnerable victim” under U.S.S.G. § 3A1.1(b). The PSI also recommended
against awarding Frank a two-level downward adjustment for acceptance of
responsibility under U.S.S.G. § 3E1.1. The district court adopted both these
recommendations and on April 5, 2000, following a hearing, Frank was sentenced
to 175 months’ imprisonment for carjacking and to sixty months’ imprisonment for
using a firearm to carry out the offense, a total of 235 months, the sentences to run
concurrently.
II. STANDARDS OF REVIEW
The district court’s application of § 3A1.1(b) in determining whether a
“vulnerable victim” enhancement is warranted is a mixed question of law and fact
that we review de novo. See United States v. Malone, 78 F.3d 518, 520 (11th Cir.
1996). However, the district court’s determination of a victim’s “vulnerability” is
essentially a factual finding to which we should give due deference. See id.
Further, the district court’s findings of “historical fact” will be reversed only if
clearly erroneous. See id. at 520-521.
The district court’s determination of whether a defendant is entitled to a
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reduction for acceptance of responsibility under § 3E1.1(a) is a finding of fact that
is entitled to great deference on appeal and will not be disturbed unless clearly
erroneous. See United States v. Kendrick, 22 F.3d 1066, 1068 (11th Cir. 1994).
III. DISCUSSION
A. Vulnerable Victim
Frank objects to the two-level sentence increase he received for targeting a
“vulnerable victim” under U.S.S.G. § 3A1.1(b),1 asserting that the government
failed to prove by a preponderance of the evidence that Frank targeted the taxi cab
because he knew that cab drivers must respond to all dispatches and thus are
particularly vulnerable to carjackings. In United States v. Malone, 78 F.3d 518
(11th Cir. 1996), this Court considered whether a cab driver was a “vulnerable
victim” within the meaning of § 3A1.1, where the defendants had called a cab for
the purposes of robbing the driver and stealing the vehicle. The Malone Court
began by emphasizing that the enhancement is “appropriate only where the
defendant targets the victim based on the latter’s unique characteristics.” Id. at
521. In other words, “the vulnerable victim adjustment focuses chiefly on the
1
Section 3A1.1 of the U.S. Sentencing Guidelines Manual 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.”
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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.” Id. at 522.
The Malone Court went on to affirm the district court’s application of the
vulnerable victim enhancement because the defendants in that case testified that
calling a cab saved them from having to go out and find a victim and because the
defendants “specifically targeted [the victim], knowing that his obligations as a
dispatched cab driver [i.e., his duty to respond to every call and pick up every
potential passenger] made him more vulnerable to carjackings than other drivers of
cars.” Id.
The district court found the victim in this case to be similarly vulnerable. At
Frank’s sentencing hearing, defense counsel argued that the government had failed
to prove that the victim was selected because he was a cab driver. The district
court disagreed, stating: “Well, I heard the facts in this case, as I presided over the
trial, and I find by a preponderance of the evidence that the defendant’s calling the
taxi was part of the plan and that he did have the intent to carjack the cab from the
very beginning. So I’m denying that objection. . . .” The evidence of a “plan”
referred to by the court included the robbery note, bag, extra clothes, and extra
ammunition. The district court was convinced that Frank had decided that he
needed a vehicle to effectively carry out a robbery of some sort, and summoned the
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taxi for the express purpose of carjacking it and carrying out his plan. As in
Malone, the events at issue in this case took place in Mobile, Alabama, where cabs
are required to respond to every call given by the dispatcher. Even if Frank were
not aware of this ordinance, he certainly contacted the cab company with the
expectation that a taxi would be dispatched to him, allowing him to gain access to
the interior of a car and subsequently put in motion his plan to commit a robbery
using a stolen vehicle.
The determination that a defendant has targeted a victim based on his or her
vulnerability to a particular crime must take into account the totality of the
circumstances, including in some cases the victim’s membership in a certain class
or occupation. We emphasize, however, that nothing in this opinion should be
taken as suggesting a sentence enhancement in every case where a defendant is
convicted of committing a crime against a cab driver. As this Court reaffirmed in
Malone, a victim is not to be considered “vulnerable” for purposes of sentencing
enhancement based solely on his or her membership in a class. See id. at 521.
Whether a “vulnerable victim” sentence enhancement should be made is a fact
intensive inquiry that must be made on a case-by-case basis. Under the
circumstances presented in this case, and in light of the deference owed the district
court’s factual finding concerning the victim’s vulnerability, we affirm its
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application of the two-level sentence enhancement.
B. Acceptance of Responsibility
Frank also appeals the district court’s refusal to grant him a two-level
downward adjustment of his sentence for acceptance of responsibility under
U.S.S.G. § 3E1.1(a). At the sentencing hearing, Frank argued that his plea of
insanity did not automatically preclude a downward adjustment for acceptance of
responsibility and that, by notifying the government and the court prior to trial of
his intent to assert this defense, he had accepted responsibility for the crime and
was entitled to the adjustment. The government responded by pointing out that
Frank, at least implicitly, called into question his involvement in the carjacking by
cross-examining a number of witnesses at trial concerning their identification of
him. The government also notes that Frank only presented the insanity defense to
the jury after the government had completed its case. At the sentencing hearing the
following exchange took place:
THE COURT: Mr. Williams, I think you are correct that it’s possible for
him to receive the reduction for acceptance of responsibility. But under the
facts of this case, I just don’t think he is entitled to it. [] In other words if
he had gone to trial on this issue of insanity [] from the beginning [] and
that was the issue heard by the jury. Ordinarily when the defendant puts the
government to trial, it’s extremely rare for the defendant to get acceptance
of responsibility. But you are correct; it’s possible for him to do it. I just
don’t feel that he’s entitled to it in this case.
MR. WILLIAMS: Judge. . .if I may respond? [] Your honor, we entered a
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plea of not guilty and not guilty by reason of insanity. This was not a
secret to the government.
THE COURT: I’m not suggesting. . . it was a secret. But I heard the trial.
[] I mean I know how the trial went. [] I feel here that since the defendant
was taking the chance having it both ways – I don’t think he got up initially
and admitted anything.
Frank maintains that the tactical decision of a defense attorney to give an opening
statement at the close of the government’s case should not be a bar to an
acceptance of responsibility reduction. Whether or not this is true, the application
notes following the sentencing guideline concerning reductions on this basis
indicate that putting the government to its burden of proof is a factor that may be
considered by the sentencing judge.2 Further, this was not the only basis for the
district court’s decision. The application notes for guideline 3E1.1 also state that
“a determination that a defendant has accepted responsibility will be based on
primarily pre-trial statements and conduct.” See supra note 2. At the sentencing
hearing, Frank’s attorney cited United States v. Barris, 46 F.3d 33, 35 (8th Cir.
2
“This adjustment is not intended to apply to a defendant who puts the government to its
burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only
then admits guilt and expresses remorse. Conviction by trial, however, does not automatically
preclude a defendant from consideration for such a reduction. In rare circumstances a defendant
may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he
exercises his constitutional right to a trial. This may occur, for example, where a defendant goes
to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitu-
tional challenge to a statute or a challenge to the applicability of a statute to his conduct). In
each instance, however, a determination that a defendant has accepted responsibility will be
based primarily upon pre-trial statements and conduct.” U.S.S.G. § 3E1.1. app. 2.
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1995) in support of his request for a sentence reduction. The district court
distinguished Barris stating “the court there talked about the fact that the
defendant. . . had accepted responsibility, quote, ‘primarily upon pretrial
statements and conduct,’ unquote. We had none of that here.”
A district court is in a “unique position to evaluate” whether a defendant
sufficiently demonstrates acceptance of responsibility; therefore “the determination
of the sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1
app. 5. The court below acted within its discretion in denying Frank’ s request for
a sentence reduction based on acceptance of responsibility and we will not disturb
that determination.
AFFIRMED.
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