United States v. Ellis

FILED
United States Court of Appeals
Tenth Circuit

May 12, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 06-6340
TOMMY LEE ELLIS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 06-CR-01-C)

Submitted on the briefs:

Bill Zuhdi, Bill Zuhdi Attorney at Law, P.C., Oklahoma City, Oklahoma, for
Defendant - Appellant.

John C. Richter, United States Attorney, (Jonathon E. Boatman, Assistant United
States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff -
Appellee.

Before BRISCOE, SEYMOUR, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Following a bench trial Tommy Lee Ellis was convicted in the United

States District Court for the Western District of Oklahoma of committing a bank
robbery on December 12, 2005. He was sentenced on October 24, 2006, to 210

months’ imprisonment. On appeal he raises three issues. First, he argues that

there was insufficient evidence to convict him of bank robbery because he did not

personally rob the bank and the indictment did not properly charge him with

aiding and abetting. Second, he argues that his sentence was procedurally and

substantively unreasonable. Third, he argues that the district court violated the

Sixth Amendment when it enhanced his sentence under the United States

Sentencing Guidelines based on facts it found by a preponderance of the

evidence. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

The perpetrator of the bank robbery was Vanessa Martinez. About one

week before the robbery Mr. Ellis persuaded her to commit the crime to solve

both of their financial problems. He told her that it would be easy, and hinted

that he had obtained his car, a maroon Monte Carlo, with the proceeds of an

earlier bank robbery. He estimated that they would net about $8,000.

Ms. Martinez agreed to rob the bank.

The night before the robbery, Mr. Ellis told Ms. Martinez that the robbery

would take place at a bank inside a local grocery store. He told her to wear

comfortable clothing so that she could run. When he arrived at her house the next

morning, he wrote a demand note. They drove to a thrift store, bought a bag to

carry the money that they intended to steal, and then drove to the grocery store.

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He instructed her to wait in the car while he checked to see if there was any

security. When he returned, he gave her the demand note to hand to the bank

teller. It read: “I have a gun and I want you to give me all of your large bills or

I’ll use it!! Place all of it in the bag.” R. Vol. 1, Doc. 1 at 3. At the end of the

note she added “From all registers,” because she did not wish to speak to the

tellers during the robbery. Id. Vol. 7 at 48.

Ms. Martinez walked into the store and handed the note and the bag to the

assistant branch manager of the bank inside. He removed money from his drawer

and the drawers of two other tellers and placed it in the bag. Included in the cash

was “bait” money whose serial numbers had been previously recorded.

Ms. Martinez took the money and left the bank.

A bank customer, Tad Dozier, observed Ms. Martinez at the bank and

concluded that she was committing a robbery when he saw the assistant branch

manager remove money from the other tellers’ drawers. Mr. Dozier left the bank

before Ms. Martinez and waited in his car with the engine running until he saw

her leave the bank and enter Mr. Ellis’s Monte Carlo. He followed the vehicle

and called 911, stating that he had witnessed a bank robbery and that he was

following the robber. He described the vehicle to the police.

Officers eventually pulled Mr. Ellis over because his car matched

Mr. Dozier’s description. Mr. Ellis asked why he was being pulled over, telling

the officers that Ms. Martinez was his girlfriend and that he was driving her home

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because she was ill. Mr. Ellis and Ms. Martinez were detained. A detective who

had viewed a still photo taken during the robbery came to where the two were

being held and identified Ms. Martinez as the robber.

Mr. Ellis and Ms. Martinez were arrested and taken to the police station.

Officers found $580 in Mr. Ellis’s boot. The bank had reported that $570 had

been stolen. The serial numbers on some of the recovered bills matched the serial

numbers from the “bait” bills.

Ms. Martinez pleaded guilty and testified against Mr. Ellis. On the day that

he was convicted he filed a motion for acquittal on the ground that the indictment

did not properly charge him with aiding and abetting under 18 U.S.C. § 2,

because it did not contain language describing how he had aided or abetted the

offense. The motion was denied.

At sentencing, Mr. Ellis asked the district court to give him a below-

Guidelines sentence based on various mitigating factors. The court imposed a

sentence of 210 months’ imprisonment, the bottom of the Guidelines range.

II. ANALYSIS

A. The Adequacy of the Indictment

Mr. Ellis argues that his conviction should be reversed because the

government did not prove that he personally committed the bank robbery and the

indictment failed to charge him with aiding and abetting. Although the

indictment cites the aiding-and-abetting statute, 18 U.S.C. § 2, it does not include

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any language describing Mr. Ellis’s role. As Mr. Ellis argues, a citation to a

statute is not part of the indictment and cannot substitute for a recitation of the

elements of the offense. See Fed. R. Crim. P. 7, advisory committee note 3 to

subdivision (c) (1944); United States v. Gama-Bastidas, 222 F.3d 779, 787 (10th

Cir. 2000). He correctly concedes, however, that the aiding-and-abetting statute

“applies implicitly to all Federal offenses” and that “even though the defendant is

charged with commission of the substantive offense, proof that he or she only

aided or abetted the commission of the crime will support the indictment.” Aplt.

Br. at 30; see United States v. Scroger, 98 F.3d 1256, 1262 (10th Cir. 1996). To

be sure, an indictment must “contain[] the elements of the offense charged.”

Hamling v. United States, 418 U.S. 87, 117 (1974). But aiding and abetting is not

an independent crime. See Scroger, 98 F.3d at 1262. The offense was bank

robbery, and its elements are alleged in the indictment. The indictment was

adequate to sustain Mr. Ellis’s conviction. He does not claim that he lacked

notice of the government’s allegations against him.

B. Sentencing Issues

Mr. Ellis challenges the procedural and substantive reasonableness of his

sentence. He argues that (1) he should have received a two-level downward

adjustment for acceptance of responsibility under United States Sentencing

Guideline (USSG) § 3E1.1; (2) because he did not personally rob the bank, his

offense level should not have been calculated under (a) the Robbery guideline,

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USSG § 2B3.1, which sets a base offense level as well as enhancements for taking

the property of a financial institution and for making a death threat, and (b) USSG

§ 3B1.1(c), which provides for a two-level enhancement for organizing the

offense; (3) the enhancement for making a death threat should not have been

applied because Ms. Martinez did not threaten to kill anyone; (4) he should not be

considered a career offender under USSG § 4B1.1; and (5) his sentence was

substantively unreasonable.

After United States v. Booker, 543 U.S. 220 (2005), we review a sentence

for reasonableness. See United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th

Cir. 2008). A sentence is procedurally unreasonable if the court “‘fail[ed] to

calculate (or improperly calculat[ed]) the Guidelines range, treat[ed] the

Guidelines as mandatory, fail[ed] to consider the § 3553(a) factors, select[ed] a

sentence based on clearly erroneous facts, or fail[ed] to adequately explain the

chosen sentence.’” Id. (quoting Gall v. United States, 128 S.Ct. 586, 597 (2007)).

A sentence is substantively unreasonable if, considering the factors set forth in 18

U.S.C. § 3553(a), the sentence is unreasonable in length. Id.

We begin with Mr. Ellis’s procedural arguments, all of which challenge the

Guidelines calculation. When assessing that calculation, “we review factual

findings for clear error and legal determinations de novo.” United States v.

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).

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 First, Mr. Ellis claims entitlement to a two-level downward adjustment for

acceptance of responsibility under USSG § 3E1.1. He asserts that he attempted to

plead guilty to aiding and abetting and that he went to trial only to preserve his

argument that he was not properly charged under the indictment. He also argues

that he is entitled to the adjustment because he waived his right to a jury trial and

was tried by a judge. The district court properly rejected these arguments.

Mr. Ellis never asked to enter a conditional plea, nor did he inform the

government that he acknowledged guilt. On the contrary, he put the government

to its proof at trial, and cross-examined the witnesses against him on factual

matters. Only in rare cases can a court find that a defendant accepted

responsibility despite proceeding to trial. See United States v. Portillo-

Valenzuela, 20 F.3d 393, 394–95 (10th Cir. 1994); USSG § 3E1.1 cmt. n.2

(adjustment is inapplicable to defendant who does not admit guilt before being

convicted, although the adjustment may apply if defendant went to trial only to

preserve legal arguments unrelated to factual guilt). The district court could

properly find that Mr. Ellis had not accepted responsibility.

Second, Mr. Ellis argues that the various provisions of USSG § 2B3.1 and

§ 3B1.1 did not apply to him because he did not personally rob the bank. He

apparently believes that these provisions apply only to the principal. He is

incorrect. According to the Guidelines, “The offense level [for aiding and

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abetting] is the same level as that for the underlying offense.” USSG § 2X2.1.

The same is true for enhancements. See id. § 1B1.3(a)(1)(A); id. cmt. n.1.

Third, Mr. Ellis argues that the enhancement under USSG § 2B3.1(b)(2)(F)

does not apply here because Ms. Martinez never actually threatened to kill

anyone. That section applies a two-level enhancement if a “threat of death” is

made. USSG § 2B3.1(b)(2)(F). The threat can be “an oral or written statement,

act, gesture, or combination thereof.” Id. cmt. n.6. The enhancement is meant to

punish an offender for “engag[ing] in conduct that would instill in a reasonable

person, who is a victim of the offense, a fear of death.” Id. The note handed to

the assistant branch manager stated: “I have a gun and I want you to give me all

of your large bills or I’ll use it!! Place all of it in the bag. From all registers.”

R. Vol. 1, Doc. 1 at 3. In United States v. Arevalo, 242 F.3d 925, 928 (10th Cir.

2001), we held that the words “I have a gun and am willing to use it,” constituted

a death threat under § 2B3.1. Here, Ms. Martinez did not merely say that she was

willing to use the gun, but said that she would use the gun if the tellers did not

“give [her] all of [their] large bills.” R. Vol. 1, Doc. 1 at 3. The district court

properly applied § 2B3.1.

Fourth, Mr. Ellis argues that he was not a career offender for the purposes

of USSG § 4B1.1. A defendant is a career offender if (1) he was at least 18 years

old at the time of the instant offense; (2) the instant offense is a crime of violence

or a drug offense; and (3) he has at least “two prior felony convictions of either a

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crime of violence or a controlled substance offense.” USSG § 4B1.1(a). The

district court found that he was a career offender because he was over 18, the

instant offense was a bank robbery, which is a violent felony, and he had prior

convictions for robbery with firearms and escape from a penal institution, both of

which are crimes of violence. Mr. Ellis claims that his escape from a penal

institution should not be considered a crime of violence. But our precedent is

clearly to the contrary. See United States v. Mitchell, 113 F.3d 1528, 1533 n.2

(10th Cir. 1997). But see Chambers v. United States, No. 06-11206, WL 1775023

(S. Ct. Apr. 21, 2008) (grant of certiorari on the issue). He also argues that his

convictions for escape from a penal institution and for robbery with firearms

should not be counted separately under USSG § 4B1.1. Under USSG

§ 4B1.2(c)(2) a defendant has “‘two prior felony convictions’” only if the

sentences for the two convictions are counted separately. The 2006 version of the

Guidelines, which governs Mr. Ellis’s sentence, see USSG § 1B1.11(a), states that

whether sentences are counted separately depends on whether they were imposed

in unrelated cases, see USSG § 4A1.2 (2006). To support his contention that his

sentences should not be counted separately, Mr. Ellis relies on commentary

stating that sentences are considered related if they were for offenses that were

consolidated for sentencing. See USSG § 4A1.2, cmt. n.3 He notes that his

current sentences for the prior robbery and his escape were imposed at the same

time. But the statement on which he relies does not govern here because it

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applies only when the two offenses were not separated by an intervening arrest.

See id. 1 Mr. Ellis’s escape was from his incarceration on the robbery charge. The

escape was well after his arrest for robbery. It is therefore irrelevant that when he

was sentenced for his escape, the court also resentenced him for the robbery,

lifting the previously suspended portion of that sentence. The career-offender

enhancement was properly imposed.

Finally, although Mr. Ellis’s brief states that he is claiming that his

sentence is substantively unreasonable, he offers no argument beyond challenging

the Guidelines calculations. In any event, the length of his sentence, which was

at the bottom of the advisory Guidelines range, was eminently reasonable. See

Kristl, 437 F.3d at 1054 (within-Guidelines sentence is presumptively

reasonable).

C. Alleged Booker Violation

Mr. Ellis argues that the district court violated his Sixth Amendment right

to a jury trial by enhancing his sentence based on facts found by the judge by a

preponderance of the evidence. We held to the contrary in United States v.

1
The former comment 3 to USSG § 4A1.2 was stricken by the Sentencing
Commission’s Guidelines Amendment No. 709, effective November 1, 2007. See
USSG supp. to app. C, Amendment 709. The amendment inserted some of the
text from former comment 3 into a new § 4A1.2(a)(2), which states that sentences
always are counted separately if the sentences were imposed for offenses that
were separated by an intervening arrest. Id. The new § 4A1.2(a)(2) also states
that if there was no intervening arrest, the sentences are counted separately
unless, among other things, sentencing occurred on the same day.

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Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005). Nevertheless, he argues that we

should revisit our decision in light of the Supreme Court’s decision in

Cunningham v. California, 127 S.Ct. 856 (2007), which held California’s

sentencing scheme to be unconstitutional. But California law called for

mandatory sentencing, unlike the federal Sentencing Guidelines rendered advisory

by Booker. See id. at 869–70 (distinguishing California sentencing from post-

Booker federal sentencing). Accordingly, we reject this argument.

III. CONCLUSION

We AFFIRM Mr. Ellis’s conviction and sentence.

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