United States v. Billy Jack Keene

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 30, 2006
No. 06-12076 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00273-CR-WS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BILLY JACK KEENE,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Alabama
_________________________

(November 30, 2006)

Before ANDERSON, BIRCH and CARNES, Circuit Judges.

CARNES, Circuit Judge:
 Between July 26 and August 4, 2005, Billy Jack Keene and his co-

conspirators, Jesse Arnold and Jennifer Keene (Keene’s sister and Arnold’s

girlfriend), robbed three banks in southern Alabama. As part of each heist, Keene

or Jennifer would drive Arnold to and from the banks, while Arnold went inside,

handed the teller a threatening note, and took the money from the shaken teller.

The note Keene and Arnold jointly drafted for the first bank read, “Give me all the

money, and no one will get hurt! Love, me.” Keene, Arnold and Jennifer then

made away with $5,205.00.

Keene and his co-conspirators were arrested soon after the last bank robbery

following a tip from Arnold’s mother to the FBI that her son was responsible for

the string of robberies. Keene was indicted for three counts of taking money by

force or intimidation from a financial institution insured by the Federal Deposit

Insurance Corporation, in violation of 18 U.S.C. § 2113(a). He pleaded guilty to

all three counts without a plea agreement.

The probation office submitted a pre-sentence investigation report, which

recommended that the district court enhance Keene’s sentencing guideline base

offense level by two pursuant to U.S.S.G. § 2B3.1(b)(2)(F). That guidelines

provision specifies that if, in the course of a robbery, extortion or blackmail, “a

threat of death was made,” the defendant’s base offense level must be “increase[d]

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by 2 levels.” The theory was that the note Keene had helped draft, which was

handed to the teller at the first bank, constituted a threat of death. Keene objected

to any threat-of-death enhancement based on the note, arguing that while the note

warned the teller that she would be “hurt” if she did not comply with Arnold’s

demands, it did not imply that Arnold would kill her. Keene’s position is that the

threat of violence alone is not enough for the threat-of-death enhancement.

The district court overruled Keene’s objection, and based on the enhanced

offense level and Keene’s criminal history arrived at an advisory guidelines range

of 100 to 125 months imprisonment. Without the two-level threat-of-death

enhancement the guidelines range would have been 84 to 105 months

imprisonment. The district court sentenced Keene within the enhanced range,

imposing a 120-month sentence, but in doing so the court indicated that even if the

two-level enhancement had not been applied the court would have reached the

same sentence under its 28 U.S.C. § 3553(a) authority to impose a reasonable

sentence outside the guidelines range.

In his appeal to us, Keene raises the same issue that he did in the district

court, arguing that the U.S.S.G. § 2B3.1(b)(2)(F) enhancement does not apply to

threats of violence unless the robber brandished a weapon, stated or suggested he

had one, or at least made a menacing gesture. The issue is one of first impression

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before our Court. From what we can tell, only one other circuit has decided the

issue, and it held that the threat-of-death enhancement did in fact apply to

circumstances similar to those we have here. See, e.g., United States v. Thomas,

327 F.3d 253, 254–55 (3d Cir. 2003) (holding that note given to bank teller by the

defendant, which read, “Do exactly what this says, fill the bag with $100s, $50s

and $20s, a dye pack will bring me back for your ass, do it now. Truely [sic]

yours,” constituted a threat of death warranting the enhancement). That may be the

way the issue should be decided, but we need not decide it in this case.

The reason it is unnecessary for us to decide the enhancement issue is that a

decision either way will not affect the outcome of this case. We know it will not

because the district court told us that the enhancement made no difference to the

sentence it imposed. After the court overruled Keene’s objection and found what

the court believed to be the appropriate guideline range taking into consideration

the two-step enhancement, the court made clear that even if its interpretation and

application of U.S.S.G. § 2B3.1(b)(2)(F) was wrong, it would still hand down the

same 120-month sentence:

And I will say for the record that even if the guideline calculations are
wrong, my application of the sentencing factors under Section 3553(a)
would still compel the conclusion that a 10-year sentence [120
months] is reasonable and appropriate under all the factors that I
considered.

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(R:29:14). The court essentially accepted the invitation extended by the concurring

opinion in United States v. Williams, 431 F.3d 767, 773 (11th Cir. 2005) (Carnes,

J., concurring), which is not surprising since the same district court judge was

involved in both cases.

As the concurring opinion in Williams explained, “pointless reversals and

unnecessary do-overs of sentence proceedings” can be avoided if district courts

faced with disputed guidelines issues state that the guidelines advice that results

from decision of those issues does not matter to the sentence imposed after the §

3553(a) factors are considered. Id. Likewise, if resolution of the guidelines issue

does matter to the judge’s ultimate sentencing decision, noting that it does “will

help focus our attention on the issues that matter.” Id. This approach is a

legitimate one because, as the Williams concurring opinion explained, “[t]he

Supreme Court and this Court have long recognized that it is not necessary to

decide guidelines issues or remand cases for new sentence proceedings where the

guidelines error, if any, did not affect the sentence.” Id. (citations to four

supporting decisions omitted).

Whether to decide and state on the record if the decision of a guidelines

issue matters to the ultimate sentence imposed is up to the district court in each

individual case. Id. at 775–76 (“It is the prerogative of sentencing courts to speak

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or remain silent about such matters. The choice is theirs.”). Here, the district court

decided to speak on the matter and told us that its resolution of the §

2B3.1(b)(2)(F) enhancement issue did not matter because it would have imposed

the same sentence, using its § 3553(a) authority, even without the enhancement.

That is all we need to know, except for one thing.

The one thing we add to the approach suggested in the Williams concurring

opinion is that the sentence imposed through the alternative or fallback reasoning

of § 3553(a) must be reasonable. In determining whether it is reasonable we must

assume that there was guidelines error—that the guidelines issue should have been

decided in the way the defendant argued and the advisory range reduced

accordingly— and then ask whether the final sentence resulting from consideration

of the § 3553(a) factors would still be reasonable. Otherwise, we will not know

whether any error in deciding the guidelines issue, in arriving at the advisory

guidelines sentence, was truly harmless. The Williams concurring opinion

approach is, after all, an assumed error harmlessness inquiry. It has two

components. One is knowledge that the district court would have reached the same

result even if it had decided the guidelines issue the other way, and we know that

in this case because the court told us. The other component is a determination that

the sentence would be reasonable even if the guidelines issue had been decided in

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the defendant’s favor, and we turn to that question now.

As we have already pointed out, if the district court had decided the U.S.S.G.

§ 2B3.1(b)(2)(F) enhancement issue in Keene’s favor the advisory guidelines range

would have been 84 to 105 months, instead of the 100 to 125 months range that the

court arrived at applying the two-level enhancement. The question then, is whether

the 120-month sentence the court imposed is reasonable, assuming exactly the

same conduct and other factors in the case, but using an advisory range of 84 to

105 months.

Our post-Booker reasonableness review takes into account the § 3553(a)

factors as well as the advisory guidelines range. United States v. Booker, 543 U.S.

220, 261, 125 S. Ct. 738, 765–66 (2005) (maj. op. of Breyer, J.). It is a

“deferential” review, and the burden is on the defendant to prove that his sentence

is unreasonable in light of the record and section 3553(a). United States v. Valnor,

451 F.3d 744, 750 (11th Cir. 2006). Keene cannot carry the burden of showing

that his 120-month sentence was unreasonable even with an assumed advisory

guidelines range of 84 to 105 months.

The facts developed during the guilty plea and sentence process were that:

(1) Keene, at 29 years of age, had already been convicted of possession of

marijuana and cocaine, burglary, credit card fraud, passing bad checks, and driving

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while under the influence; (2) Keene was on probation at the time he committed

these crimes; (3) Keene had a leading role in planning the three bank robberies; (3)

Keene helped draft the note, which at the very least threatened violence against the

bank teller; and (4) Keene induced his sister, who had no criminal history, to join

in the criminal enterprise. Given the circumstances, a sentence of 120 months for

the three robberies is not unreasonable regardless of whether the guidelines range

is 84 to 105 months or 100 to 125 months. See United States v. Hunt, 459 F.3d

1180, 1185 (11th Cir. 2006) (“a district court may determine, on a case-by-case

basis, the weight to give the Guidelines, so long as that determination is made with

reference to the remaining section 3553(a) factors that the court must also consider

in calculating the defendant’s sentence”).

For these reasons, we conclude that if there was any misapplication of the

§2B3.1(b)(2)(F) enhancement, “the error did not affect the district court’s selection

of the sentence imposed.” Williams v. United States, 503 U.S. 193, 203, 112 S.

Court. 1112, 1120–21 (1992). Put a little differently, it would make no sense to set

aside this reasonable sentence and send the case back to the district court since it

has already told us that it would impose exactly the same sentence, a sentence we

would be compelled to affirm.

AFFIRMED.

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