United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 3, 2007
FOR THE FIFTH CIRCUIT
______________________
Charles R. Fulbruge III
Clerk
No. 06-50272
______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUGH DOUGLAS DENTLER,
Defendant-Appellant.
________________________________________________
On Appeal from the United States District Court for the
Western District of Texas, San Antonio Division
No. 5:05-cr-00212-FB-ALL
________________________________________________
Before DAVIS, DENNIS, and PRADO, Circuit Judges.
DENNIS, Circuit Judge:
Defendant Hugh Douglas Dentler was indicted for and
convicted of federal bank robbery in violation of 18
U.S.C. § 2113(a). The district court sentenced him to 240
months of imprisonment. Dentler now appeals both his
sentence and his conviction. He argues that the
indictment was insufficient, because it failed to state
a necessary element of the charged crime, and that the
1
instructions given to the jury worked an impermissible
constructive amendment. He also argues that the district
court incorrectly held that his crime constituted a crime
of violence and therefore improperly increased his
sentence range under the Guidelines. For the reasons
discussed below, we AFFIRM his conviction, but VACATE his
sentence and REMAND the case for resentencing.
I.
Dentler was indicted for federal bank robbery in
violation of 18 U.S.C. § 2113(a). That statute imposes a
maximum sentence of twenty years on anyone who
. . . 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; or
. . . enters or attempts to enter any bank,
credit union, or any savings and loan
association, or any building used in whole or in
part as a bank, credit union, or as a savings
and loan association, with intent to commit in
such bank, credit union, or in such savings and
loan association, or building, or part thereof,
so used, any felony affecting such bank, credit
union, or such savings and loan association and
in violation of any statute of the United
2
States, or any larceny[.]
By contrast, the single count in Dentler's indictment
alleged that he
did attempt to enter Texstar Bank and the
building used in whole or in part as a bank,
with the intent to commit the felony offense of
robbery, by taking and attempting to take from
the person or presence of another, money
belonging to and in the care, custody, control,
management, and possession of the Texstar Bank,
a bank whose deposits were then insured by the
Federal Deposit Insurance Corporation, in
violation of 18 U.S.C. Section 2113(a).
Dentler moved to dismiss the indictment, urging that it
failed to state an offense under the statute because it
failed to charge either (1) that the attempted taking
involved force, violence, or intimidation or (2) that his
intended felony affected the bank. At the close of the
jury trial, his counsel objected to the jury instructions
on the grounds that the indictment confused the two
separate crimes defined under section 2113(a), depriving
him of notice as to which provision he was expected to
defend against. The objection was overruled, and the jury
found Dentler guilty.
At sentencing, the district court held that Dentler's
3
conviction constituted a crime of violence and, as a
result, labeled Dentler a career offender under U.S.S.G.
§ 4B1.1. As a result, Dentler's offense level rose from
29 to 32, and his resulting advisory guideline sentence
range rose from 140-175 months to 210-262 months. Dentler
ultimately received a sentence of 240 months of
imprisonment, the statutory maximum for the offense. He
timely appeals, challenging both his conviction and his
sentence.
II.
Dentler argues that the indictment fails to allege an
offense under 18 U.S.C. § 2113(a) because it fails to
state a full set of elements for either of the offenses
laid out in the statute. He also urges that the jury
instructions constructively, and therefore impermissibly,
amended his indictment by including an offense element
not charged in the original indictment. We address each
argument in turn.
A.
A challenge to the sufficiency of the indictment is
reviewed de novo. United States v. Partida, 385 F.3d 546,
4
554 (5th Cir. 2004). A grand jury indictment must “set
forth each essential element of an offense.” United
States v. Wilson, 884 F.2d 174, 179 (5th Cir. 1989). To
be valid, an indictment “must charge positively and not
inferentially everything essential.” Wilkins v. United
States, 376 F.2d 552, 562 (5th Cir. 1967). Moreover, a
valid indictment must set forth the alleged offense “with
sufficient clarity and certainty to apprise the accused
of the crime with which he is charged.” United States v.
Kay, 359 F.3d 738, 742 (5th Cir. 2004). In determining
whether an indictment is sufficient, we do not ask
whether the indictment could have been better
drafted, but whether it conforms to minimal
constitutional standards. These minimum
constitutional standards are met where the
indictment alleges “every element of the crime
charged and in such a way ‘as to enable the
accused to prepare his defense and to allow the
accused to invoke the double jeopardy clause in
any subsequent proceeding.’”.
United States v. Gonzalez, 436 F.3d 560, 569 (5th Cir.
2006) (internal citations omitted); see also United
States v. Threadgill, 172 F.3d 357, 366 (5th Cir. 1999)
(quoting United States v. Lavergne, 805 F.2d 517, 521
(5th Cir. 1986)).
5
We have, therefore, held that so long as an
indictment as a whole “fairly imports” an element, “an
exact recitation of [that] element . . . is not
required.” United States v. Harms, 442 F.3d 367, 372 (5th
Cir. 2006). “We generally . . . will not reverse for
‘minor deficiencies that cause no prejudice.’” United
States v. Guzman-Ocampo, 236 F.3d 233, 236 (5th Cir.
2000) (quoting United States v. Gaytan, 74 F.3d 545, 551
(5th Cir. 1996)). Thus, even where an objection has been
raised at trial, we have upheld the validity of an
indictment despite the fact that particular language was
not used to identify a key element, so long as “the
language of the indictment demonstrates adequately” that
the element is required. See, e.g., Haas, 583 F.2d at 218
(“[T]he indictment . . . need not contain technical terms
of knowledge and intent if it recites facts and uses
language which, taken as a whole, indicate knowledge and
intent and that the indictment contains sufficient
factual data to withstand a motion to dismiss.”).
The statute at issue in this case, 18 U.S.C. §
2113(a), describes two separate offenses. United States
6
v. McGhee, 488 F.2d 781, 784 (5th Cir. 1974). The first
paragraph criminalizes bank robbery (or an attempt) that
uses force, violence, or intimidation. United States v.
Bellew, 369 F.3d 450, 454 (5th Cir. 2004). That crime
requires that the government prove the following
elements:
(1) an individual or individuals (2) used force
and violence or intimidation (3) to take or
attempt to take (4) from the person or presence
of another (5) money, property, or anything of
value (6) belonging to or in the care, custody,
control, management, or possession (7) of a
bank, credit union, or savings and loan
association.
Id.
The second paragraph, by contrast, allows for a
conviction where “if at the time [a] person attempts to
enter a bank he intends to commit any felony affecting
the bank.” United States v. Jones, 993 F.3d 58, 60 (5th
Cir. 1993). To convict under that paragraph, the
government must prove the following elements: (1) an
entry or an attempt to enter (2) any bank, credit union,
or any savings and loan association (or building used in
whole or part as such), (3) with the intent to commit
7
there (4) any felony (5) affecting such bank, credit
union, or savings and loan association. 18 U.S.C. §
2113(a).
Dentler's indictment, by comparison, asserts the
following:
[1] Dentler attempted to enter
[2] TexStar Bank
[3] intending to commit
[4] the felony offense of robbery
[5] by taking and attempting to take
[6] from the person or presence of another
[7] money
[8] belonging to and in the care, custody,
control, management, and possession of
TexStar Bank.
As such, his indictment fails to assert, on its face, a
full set of elements for either crime: it is missing
either the allegation that Dentler intended a taking “by
force and violence or intimidation” (under the first
paragraph of section 2113(a)) or that the felony he
intended to commit at the time he entered the bank
affected the bank (under the second paragraph of section
2113(a)).
Dentler argues that the indictment was in error; the
government counters that in charging Mr. Dentler with
attempting to enter a bank while intending to rob someone
8
of the bank’s money, the indictment is sufficient in
indicating that Dentler’s crime affected the bank. We
need not address this question, because even assuming,
arguendo, that the indictment was in error, any such
error is harmless. See United States v. Robinson, 367
F.3d 278, 286-87 (5th Cir. 2004) (failure to include an
offense element in an indictment is reviewed for harmless
error where, as here, it was properly raised at trial)
(citing Neder v. United States, 527 U.S. 1, 8 (1999), and
United States v. Cotton, 535 U.S. 625, 627 (2002)); see
also United States v. Baptiste, 309 F.3d 274, 277 (5th
Cir. 2002) (per curiam) (on petition for rehearing);
United States v. Matthews, 312 F.3d 652, 665 (5th Cir.
2003). Under the harmless error standard, the “question
is whether the error affects substantial rights.”
Robinson, 367 F.3d at 286-87 (citing Fed. R. Crim. P.
52(a)).
An indictment serves two major functions:
it (1) provides notice of the crime for which
the defendant has been charged, allowing him the
opportunity to prepare a defense, and (2)
interposes the public into the charging
decision, such that a defendant is not subject
to jeopardy for a crime alleged only by the
9
prosecution.
Robinson, 367 F.3d at 287 (citations omitted).
Accordingly, in determining whether any error by the
district court was harmless, we ask (1) whether the
indictment provided Dentler sufficient notice of the
crime with which he had been charged and (2) whether
Dentler was harmed by “losing the right to have the
public determine whether there existed probable cause to
charge” the missing element. See Robinson, 367 F.3d at
287.
We first consider whether the indictment provided
Dentler with sufficient notice of the crime with which he
was charged. At trial, the government argued that the
indictment intended to charge Dentler with attempted bank
robbery under the second paragraph of section 2113.
Dentler, however, argues that the indictment failed to
give him sufficient notice because it did not state that
his intended felony was one that “affected the bank.” We
disagree. The indictment plainly states that Dentler
stands accused of an attempt to enter the bank to commit
robbery by taking money belonging to that bank. Although
10
the indictment could have drafted with greater skill, we
cannot read it to accuse Dentler of anything but
attempting to enter with the intent to commit bank
robbery, despite the absence of a specific reference to
“bank robbery” or the inclusion of the missing element of
bank robbery, i.e., the use of force or intimidation.
Accordingly, we find that the indictment gave Dentler
sufficient notice.
We must then consider whether Dentler suffered harm
in losing the right to have the public determine whether
there existed probable cause to charge the missing
element. In this case, the element in question is “the
use of force or violence.” Had that element been
included, Dentler’s indictment under section 2113(a)
would have charged him with the attempt to enter a bank
and listed all of the elements of his intended felony
(bank robbery). See United States v. Jones, 993 F.2d 58,
61-62 (5th Cir. 1993) (approving of an indictment that
charged a violation of paragraph two of § 2113(a), where
the felony in question was bank larceny and the
indictment listed all of the essential elements of bank
11
larceny as well as the elements of § 2113(a)'s second
paragraph).
“Once a trial takes place . . . there is little a
court of appeals can do to restore to a defendant that
which was lost: the right not to face a prosecution
initiated solely at the government's behest.” Robinson,
367 F.3d at 287 (citing United States v. Mechanik, 475
U.S. 66, 71 (1986)). On appeal, then, we consider only
“whether, on the basis of the evidence that would have
been available to the grand jury, any rational grand jury
presented with a proper indictment would have charged
that [the defendant] committed the offense in question.”
Id. at 288 (citing Matthews, 312 F.3d at 665).
In conducting that examination, we may consider “the
petit jury's unanimous findings --- which [are
considered] to be, at a minimum, persuasive evidence of
how a grand jury would find.” Robinson, 367 F.3d at 288.
Our holding in Robinson relies on the Supreme Court's
ruling in Mechanik, where the Court held that while a
procedural error before the grand jury
had the theoretical potential to affect the
grand jury’s determination whether to indict
12
these particular defendants for the offenses
with which they were charged . . . [,] [t]he
petit jury’s subsequent guilty verdict means not
only that there was probable cause to believe
that the defendants were guilty as charged, but
also that they are in fact guilty as charged
beyond a reasonable doubt. Measured by the petit
jury’s verdict, then, any error in the grand
jury proceeding connected with the charging
decision was harmless beyond a reasonable doubt.
Mechanik, 475 U.S. at 70.
Here, the petit jury was specifically asked, in the
jury instructions, whether Dentler intended the use of
force and violence or intimidation; it unanimously found
that he did. In addition, the evidence before the jury
also included the fact that the man wore a mask; that his
attempts to open the doors were “forceful”; that he
repeatedly reached for a bulge in his pocket; that at
least one teller testified that he thought the man had a
gun; that the gun was linked to ammunition found in
Dentler’s truck; and that Dentler’s checkbook showed a
sketch of the bank area. Given such evidence, we are
compelled to hold that a rational grand jury could find
probable cause existed to charge Dentler with the use of
force and violence or intimidation. As a result, we find
no error in the indictment affecting Dentler’s
13
substantial rights, and we hold that “any error in the
grand jury proceeding connected with the charging
decision was harmless beyond a reasonable doubt.”
Mechanik, 475 U.S. at 70.
B.
Dentler next argues that language used in his jury
instructions, which incorporates the force, violence, or
intimidation element of bank robbery, operated as an
impermissible constructive amendment to his indictment.
A constructive amendment occurs when “the jury is
permitted to convict the defendant based on an
alternative basis permitted by the statute but not
charged in the indictment.” United States v. Partida, 385
F.3d 546, 557 (5th Cir. 2004); see also United States v.
Reasor, 418 F.3d 466, 474 (5th Cir. 2005). We have held
that
“[t]he accepted test is that a constructive
amendment of the indictment occurs when the jury
is permitted to convict the defendant upon a
factual basis that effectively modifies an
essential element of the offense charged [in the
indictment]. . . . In such cases, reversal is
automatic, because the defendant may have been
convicted on a ground not charged in the
indictment.”
14
United States v. Chambers, 408 F.3d 237, 241 (5th Cir.
2005) (quoting United States v. Adams, 778 F.2d 1117,
1123 (5th Cir. 1985)). We have cautioned, however, that
to merit reversal, the difference between the indictment
and the jury instruction must “allow[] the defendant to
be convicted of a separate crime from the one for which
he was indicted. Otherwise, he will have to show how the
variance in the language between the jury charge and the
indictment so severely prejudiced his defense that it
requires reversal under harmless error review.” United
States v. Nunez, 180 F.3d 227, 231 (5th Cir. 1999). If,
however, “it is clear that this could not have been the
case, the trial court's refusal to restrict the jury
charge to the words of the indictment is merely another
of the flaws in the trial that mar its perfection but do
not prejudice the defendant.” Id. (quoting United States
v. Ylda, 653 F.2d 912, 913 (5th Cir. Unit A Aug. 1981)).
In Dentler's case, again, his indictment charged him
with
attempt[ing] to enter Texstar Bank and the
building used in whole or in part as a bank,
with the intent to commit the felony offense of
robbery, by taking and attempting to take from
15
the person or presence of another, money
belonging to and in the care, custody, control,
management, and possession of the Texstar Bank,
a bank whose deposits where then insured by the
Federal Deposit Insurance Corporation, in
violation of 18 U.S.C. Section 2113(a).
The jury instructions, by contrast, required the jury to
find each of the following beyond a reasonable doubt:
First: That the defendant attempted to enter a
federally insured bank with the intent to do the
following:
Second: That the defendant intentionally
attempted to take from the person or presence of
another money;
Third: That the money belonged to or was in the
possession of a federally insured bank at the
time of the attempted taking; and
Fourth: That the defendant attempted to take the
money by means of force and violence or by means
of intimidation.
Dentler argues that the addition of the fourth jury
instruction, regarding the use of force, violence, or
intimidation, constitutes an impermissible constructive
amendment.
During trial, both parties argued repeatedly that
force or intimidation was required. Unlike cases such as
Nunez, in which the jury instructions permitted the
defendant to be convicted of a lesser offense than that
16
for which he was indicted, or Stirone, where the facts
underlying the conviction dealt with an entirely
different set of facts than those on which the defendant
was convicted, Mr. Dentler was not convicted for
something far different than that for which he was
indicted. The language has not “permitted [the jury] to
convict the defendant upon a factual basis that
effectively modifies an essential element of the offense
charged.” United States v. Adams, 778 F.2d 1117, 1123
(5th Cir. 1985). The additional language in the jury
instruction is therefore properly considered a variance,
rather than an amendment, and is subject to the same
harmless error review discussed in the preceding section.
For the same reasons, Dentler’s arguments fail, and we
again find that any error resulting from such a variance
was harmless.
III.
Dentler challenges his sentence, arguing that the
district court wrongly classed his offense as a crime of
violence under the career offender provisions of the
sentencing guidelines. Dentler did not raise this
17
objection before the district court; as a result, we
review his challenge under the plain error standard.
United States v. Gonzalez-Chavez, 432 F.3d 334, 336 (5th
Cir. 2005). Dentler must therefore demonstrate (1) error
(2) that was clear or obvious and that (3) affected his
substantial rights. If Mr. Dentler succeeds in this
showing, we may correct the error only if (4) it
seriously affects the fairness, integrity, or public
reputation of the judicial proceedings. Id. at 336-37.
To be considered a crime of violence under the
sentencing guidelines, Dentler’s offense must either (1)
“ha[ve] as an element the use, attempted use, or
threatened use of physical force against the person of
another[;]” (2) “otherwise involve[] conduct that
presents a serious potential risk of physical injury to
another[;]” or (3) fall within a list of enumerated
crimes, including robbery. U.S.S.G. § 4B1.2 (a) & cmt
n.1.
18 U.S.C. § 924(c) sets out a definition for crimes
of violence very similar to that used by the Sentencing
Guidelines. We have held that the second paragraph of §
18
2113(a) (under which Dentler was convicted) does not
constitute a crime of violence under that definition.
United States v. Jones, 993 F.2d 58, 61-62 (5th Cir.
1993).
The government concedes that the holding in Jones
governs this case. Moreover, it does not challenge
Dentler’s assertion that his offense does not meet the
definition of the enumerated offense of robbery. The
government does argue, however, that because the district
court made numerous comments at sentencing suggesting
that it sought to impose the highest sentence possible on
Dentler, “there is a reasonable probability that the
court would not impose a lesser sentence on remand” and
therefore Dentler cannot show plain error.
This argument fails. “[I]f a sentence is imposed ‘as
a result of an incorrect application of the sentencing
guidelines’ the sentence must be vacated and the case
remanded for further sentencing proceedings.” United
States v. Tzep-Mejia, 461 F.3d 522, 526 (5th Cir. 2006).
The district court’s error in classing Dentler’s offense
as a crime of violence resulted in a sentencing range
19
where the lowest possible sentence is 65 months higher
than the top of the range he should have received ---
such a gap affects his substantial rights. See United
States v. Villegas, 404 F.3d 355, 365 (5th Cir. 2005)
(“Because these two sentencing ranges do not overlap, the
district court's error necessarily increased Villegas’s
sentence and thus affected his substantial rights.”).
Dentler has satisfied his burden under the plain error
standard, having established that “that the district
court misapplied the Guidelines in calculating the
sentencing range, the court imposed a sentence under the
. . . Guidelines based on that miscalculation, and the
sentence was higher than the correct range under the
Guidelines.” Id. Accordingly, we vacate his sentence and
remand the case for resentencing.
CONCLUSION
Because we find that any error in Dentler’s
indictment and any variance between his indictment and
the jury instructions were harmless, we AFFIRM his
conviction. However, as the district court erred in
labeling Dentler’s crime a crime of violence, and
20
therefore improperly increased his sentence range under
the Guidelines, VACATE his sentence and REMAND his case
for resentencing.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
21
United States v. Dentler
Court: Court of Appeals for the Fifth Circuit
Date filed: 2007-07-03
Citations: 492 F.3d 306
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