United States v. Gary A. Phillips

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ APRIL 5, 2002
THOMAS K. KAHN
No. 01-11730 CLERK
Non-Argument Calendar
________________________

D.C. Docket No. 92-00312-CR-C-J

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GARY A. PHILLIPS,

Defendant-Appellant.

__________________________

Appeal from the United States District Court for the
Northern District of Alabama
_________________________
(April 5, 2002)

Before CARNES, HULL and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

Gary A. Phillips (“Phillips”) appeals his sentence for conspiracy to commit

robbery, in violation of 18 U.S.C. § 371; bank robbery with the use of a dangerous
weapon, in violation of 18 U.S.C. § 2113; and possession of an unregistered

firearm, in violation of 26 U.S.C. § 5861(d). Phillips argues that the district court

erred by (1) increasing his base offense level pursuant to the “vulnerable victim”

enhancement of U.S.S.G. § 3A1.1, and (2) increasing his base offense level under

U.S.S.G. § 3B1.1 for his role as a leader or organizer of the offense.

We review for plain error Phillips’s argument based on the district court’s

application of the “vulnerable victim” enhancement, which he raises for the first

time on appeal. See United States v. Harness, 180 F.3d 1232, 1234 (11th Cir.

1999) (reviewing challenge to sentencing enhancement for plain error where

defendant failed to object to district court’s findings of fact and sentencing

calculations); see also United States v. Olano, 507 U.S. 725, 730-32, 113 S. Ct.

1770, 1776-77, 123 L. Ed. 2d 508 (1993). We will correct plain error only where

(1) there is an error; (2) the error is plain or obvious; (3) the error affects the

defendant’s substantial rights in that it was prejudicial and not harmless; and (4)

the error seriously affects the fairness, integrity, or public reputation of a judicial

proceeding. See United States v. Chisholm, 73 F.3d 304, 307 (11th Cir. 1996).

A district court’s upward adjustment of a defendant’s Guidelines offense

level due to his status as a leader or organizer under U.S.S.G. § 3B1.1 is a finding

of fact reviewed only for clear error. See United States v. De Varon, 175 F.3d 930,

2
937 (11th Cir. 1999) (en banc) (“This Court has long and repeatedly held that a

district court’s determination of a defendant’s role in the offense is a finding of fact

to be reviewed only for clear error.”).

Upon thorough review of the record, as well as careful consideration of the

parties’ briefs, we find no reversible error and affirm.

The facts relevant to Phillips’s sentencing issues are straightforward. A jury

convicted Phillips of conspiracy to commit robbery, bank robbery with the use of a

dangerous weapon, and possession of an unregistered firearm. Prior to trial,

Phillips’s co-defendants, Jeanette Booth Phillips (“Jeanette Phillips”) and Ricky

Stripling (“Stripling”), pled guilty as charged and agreed to testify at trial for the

government. The Presentence Investigation Report (“PSI”) provided that Phillips

and his co-defendants participated in an armed bank robbery yielding $43,503.63.

On November 6, 1992, Jeanette Phillips and Stripling entered the Traders and

Farmers Bank in rural Arley, Alabama1 at approximately 11:00 a.m. Both Jeanette

Phillips and Stripling were wearing ski masks, camouflage clothing, and latex

1
According to the United States Census Bureau’s 1990 census figures, Arley’s
estimated population was 338. We take judicial notice of these census figures. See
Fed. R. Evid. 201(b); see also Hollis v. Davis, 941 F.2d 1471, 1474 (11th Cir. 1991)
(taking judicial notice of census data); Moore v. Comfed Savings Bank, 908 F.2d 834,
841 n.4 (11th Cir. 1990) (same) (citing Fed. R. Evid. 201(b)).
3
gloves. They ordered the bank tellers to fill two gym bags with money and

directed the other bank employees to lie on the floor. Jeanette Phillips brandished

a .38 caliber revolver and Stripling carried a sawed-off shotgun. They told the

bank personnel that they had a police scanner, and that if they heard police coming

they would kill everyone in the bank.

During the robbery, Phillips waited in the get-away car and monitored a

police scanner. Phillips was armed with a .357 caliber pistol, a .44 caliber pistol,

and a .30 caliber carbine assault rife. At trial, Stripling testified that Phillips first

suggested the idea of a bank robbery. Phillips had worked in law enforcement

since 1977, and was the former Chief of Police in the nearby town of Parrish,

Alabama. Phillips indicated to Stripling that he was familiar with the police

situation in Arley, which had, according to Phillips, only one officer who worked

mostly at night. Stripling and Jeanette Phillips both stated that Phillips selected

Traders and Farmers Bank in Arley because it was located in a small town with

little police presence. Phillips also provided the guns for the heist. Jeanette

Phillips testified that Gary Phillips agreed to “take care of all the details,”

purchased the ski masks and gym bags for use in the robbery, and gave her a gun

and showed her how to use it. Phillips indicated to Stripling that he had found the

4
“perfect” bank: “It’s a little bitty town and real simple. It’s easy. Taking candy

from a baby.”

Phillips testified in his own defense. He admitted his planning role, which

had been described by his co-defendants, and that he was responsible for

purchasing and programming the police scanner, as well as buying the ski masks

and gym bags. Phillips described how he had practiced the escape route by going

inside of the bank to “check it out.” Phillips contended, however, that he had a last

minute change of heart and did not accompany his co-defendants to the bank on

November 6, 1992. Plainly, the jury disbelieved him, entering convictions on three

counts.

Based on these facts, the PSI assessed Phillips a two-level upward

adjustment pursuant to the “vulnerable victim” guideline, U.S.S.G. § 3A1.1. The

PSI also recommended a two-level upward adjustment for Phillips’s role as an

organizer or leader, U.S.S.G. § 3B1.1(c), noting Phillips’s higher educational level

than his co-defendants, his selection of the target bank, his role in planning the

robbery, and the statements from his co-defendants identifying him as the leader of

the scheme. Over Phillips’s objection to the § 3B1.1(c) enhancement, the district

court sentenced Phillips to a 151-month term of imprisonment for the robbery

conviction, a 60-month term of imprisonment for the conspiracy conviction, and a

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10-year term for the possession of a firearm conviction, with all sentences to run

concurrently. Notably, Phillips did not object to the “vulnerable victim” guideline

enhancement.

Phillips did not timely file a direct appeal of his conviction or sentence, but

subsequently filed a 28 U.S.C. § 2255 motion, seeking leave to file an out-of-time

appeal based on the alleged ineffective assistance of his trial counsel, who did not

file a direct appeal from Phillips’s conviction and sentence. The district court

granted Phillips leave to file an out-of-time appeal based on the fact that the court

did not advise Phillips at sentencing of his right to appeal in forma pauperis.

On appeal in Phillips I, we dismissed Phillips’s case as untimely and set

forth a procedure for district courts to follow when granting an out-of-time appeal,

noting that Phillips could file a Fed. R. Civ. P. 60(b)(6) motion to relieve him from

the operation of that part of the district court’s § 2255 order which put forward the

wrong remedy for his out-of-time appeal. See United States v. Phillips, 225 F.3d

1198 (11th Cir. 2000). Phillips then filed a Rule 60(b)(6) motion, which the

district court granted. On March 27, 2001, the district court again adopted the

PSI’s findings and recommendation, and re-sentenced Phillips to the same sentence

imposed in 1993 after the sentencing hearing. This appeal followed.

II.

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Phillips challenges his sentence on two grounds: (1) the application of the

“vulnerable victim” two-level enhancement, and (2) the application of the two-

level enhancement based on his leadership role in the offense. We address each in

turn.

Phillips first argues that the district court erred by applying the “vulnerable

victim” enhancer after finding that the bank tellers were vulnerable victims under §

3A1.1(b). The Sentencing Guidelines provide for a two-level increase if the

defendant knew or should have known that a victim of the offense was a vulnerable

victim. See U.S.S.G. § 3A1.1(b). The applicability of the “vulnerable victim”

enhancement must be determined on a case-by-case basis, and is appropriate where

the defendant knows that the victim has “unique characteristics” that make the

victim more vulnerable to the crime than other potential victims of the crime. See

United States v. Malone, 78 F.3d 518, 521 (11th Cir. 1996).

In this analysis, the focus is on the defendant’s perception of the victim’s

vulnerability to the offense. See United States v. Page, 69 F.3d 482, 488 (11th Cir.

1995); United States v. Long, 935 F.2d 1207, 1211 (11th Cir. 1991) (“[T]he

applicability of section 3A1.1 turns on the defendant’s decision to target the

victim.”). “[T]o determine whether defendants have targeted ‘vulnerable victims,’

7
we look to the facts known to defendants when they decided to target the victims.”

Page, 69 F.3d at 489 (citation and internal quotation marks omitted).

Phillips asserts that the PSI’s citation to United States v. Jones, 899 F.2d

1097 (11th Cir. 1990) (holding that bank tellers are vulnerable victims because

they are likely targets of criminal conduct), requires reversal because it was

overruled by United States v. Morrill, 984 F.2d 1136, 1138 (11th Cir. 1993) (en

banc) (holding that a bank teller is not automatically vulnerable by virtue of his or

her position as a teller). We disagree. In Morrill, we held that bank tellers, as a

class, are not per se vulnerable victims, within the meaning of § 3A1.1 because

“[b]ank tellers are typical victims of bank robberies.” 984 F.2d at 1138. Rather,

the “vulnerable victim” enhancement applies “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. Contrary

to Phillips’s argument, however, we did not conclude in Morrill that bank tellers

may never be vulnerable victims for purposes of the § 3A1.1 enhancement.

Indeed, such “[s]weeping presumptions are not favored by section 3A1.1” since

“the inquiry conducted by a sentencing judge to determine the applicability of

section 3A1.1 is . . . highly case-specific.” Long, 935 F.2d at 1210.

8
In United States v. Segien, 986 F.2d 439, 440-41 (11th Cir. 1993), which

was decided one month after Phillips’s sentencing, we held that “in sentencing a

bank robber, the trial court should make a fact-specific determination of what

factors, if any, distinguish the teller-victim from ordinary bank tellers and how, if

at all, the defendant targeted that teller based on the factors.” In this case, the

record contains an abundance of evidence to support application of the enhancer,

including: (1) Stripling’s and Jeanette Phillips’s testimonies that Phillips (a former

Police Chief in a nearby town) selected the Traders and Farmers Bank in rural

Alabama precisely because of the size of the town and its reduced police presence;

(2) Phillips’s perception of the bank as “perfect” because “it’s [in] a little bitty

town and real simple. It’s easy. Taking candy from a baby”; (3) the probation

officer found, and the district court adopted the finding, that Phillips selected “a

rural bank to rob at a time when he knew police would not be in the area.”

Focusing on Phillips’s intent, as we must in evaluating the § 3A1.1

enhancement, we cannot find any error, let alone plain error, in the district court’s

application of the “vulnerable victim” enhancement based on its conclusion that

these bank tellers were “vulnerable victims,” within the meaning of § 3A1.1.

While “a bank teller is not an unusually vulnerable victim solely by virtue of the

teller’s position in a bank,” U.S.S.G. § 3A1.1, comment. (n.2), the tellers in this

9
case had the additional “unique characteristics,” as perceived by Phillips, of being

located in a remote location with little or no police protection. Cf. Malone, 78 F.3d

at 523 (approving imposition of vulnerable victim enhancement appropriate in car-

jacking case where defendant targeted a cab driver knowing that the cab driver had

the unique obligation to drive to an isolated pick-up point of the car-jacker’s choice

and then let him into the cab). The evidence was plainly sufficient to support the

district court’s sentencing enhancement.

We are likewise unpersuaded by Phillips’s argument that the district court

erred by enhancing his sentence as an organizer or leader. If a defendant was an

organizer, leader, manager, or supervisor of the criminal activity, his offense level

may be increased by two. See U.S.S.G. § 3B1.1(c). “[T]he assertion of control or

influence over only one individual is enough to support a § 3B1.1(c)

enhancement.” United States v. Jimenez, 224 F.3d 1243, 1251 (11th Cir. 2000),

cert. denied, 122 S.Ct. 620 (2001). In distinguishing a leadership role, the district

court should consider “the exercise of decision making authority, the nature of

participation in the commission of the offense, the recruitment of accomplices, the

claimed right to a larger share of the fruits of the crime, the degree of participation

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in planning or organizing the offense, the nature and scope of the illegal activity,

and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1,

comment. (n. 4).

In this case, there was abundant evidence to support the district court’s

finding that Phillips was an organizer and leader of the bank robbery, including:

(1) both co-defendants testified that Phillips did most of the planning and

preparation for the bank robbery, including selecting the bank; (2) Stripling

testified that Phillips first suggested the idea of a bank robbery, selected the bank

because it was located in a small town with little police presence, and provided the

guns; (3) Jeanette Phillips testified that Gary Phillips agreed to “take care of all the

details,” purchased the ski masks and bags for use in the robbery, and gave her a

gun and showed her how to use it; (4) Phillips himself testified that he purchased

the police scanner and the guns for use in the robbery and helped draw a diagram

of the bank; (5) during the robbery, Phillips waited in the get-away car and

monitored the police scanner while his two co-defendants committed the robbery.

On this record, we can find no clear error in the district court’s conclusion that

Phillips organized, led, managed or supervised one or more other participants.

AFFIRMED.