United States v. Herring

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 25, 2007

TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
No. 06-3161
v. (D.C. No. 05-CR-20066-KHV)
(Kansas)
BENNIE J. HERRING II,

Defendant-Appellant.

AMENDED ORDER AND JUDGMENT *

Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.

Bennie J. Herring II appeals the district court’s imposition of a 32 year

sentence, arguing the sentence is unreasonable. W e affirm.

On M ay 18, 2005, M r. Herring entered the Capitol Federal Savings Bank in

Olathe, Kansas. There were ten bank employees and one customer present. M r.

*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Herring directed all eleven individuals to remove their clothing but for their

undergarments. He restrained the bank manager and five other bank employees

with zip ties. He chained five of the restrained employees together and seated

them in the bank waiting area. M r. Herring then proceeded to collect his loot,

during which time the police arrived. M r. Herring gave the sole bank customer a

tw o-w ay radio and directed the individual to take the radio outside to the police.

He obtained the keys to a mini-van belonging to one of the employees and gave

them to the assistant bank manager, Patricia Peuser. M r. Herring took the five

bound individuals and M s. Peuser outside and loaded them into the van,

instructing M s. Peuser to drive.

M r. Herring made contact with the police using the two-way radio and

requested they permit the vehicle to exit the bank parking lot. In the absence of

an immediate response from the police, M r. Herring held the handgun to M s.

Peuser’s head and threatened to start shooting hostages if the police did not escort

them aw ay from the premises. A police armored personnel carrier arrived and

pulled up to the van. M r. Herring fired two shots out of the van. M s. Peuser took

the radio from M r. Herring and pleaded for the officers to let the van leave the

bank. She then backed around the armored vehicle, drove over a curb and out of

the parking lot.

M r. Herring directed M s. Peuser to proceed to the local airport. Upon

arrival, M r. Herring instructed M s. Peuser to drive onto the tarmac and park near

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a small private plane that was awaiting take-off. He exited the van, bringing M s.

Peuser w ith him. He approached the plane and told the occupants to get out.

W hen M s. Peuser took a step back, the police shot M r. Herring several times,

bringing his criminal episode to a rapid conclusion.

M r. Herring pled guilty to armed bank robbery in which a hostage was

taken in violation of 18 U.S.C. § 2113(e) (Count I), brandishing a firearm in

connection with a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A )(ii)

(Count II), and attempted aircraft piracy in violation of 49 U.S.C. § 46502 (Count

III). As calculated in his presentence report (PSR ), M r. Herring’s guideline range

was 188-235 months. Because the attempted aircraft piracy conviction carried a

statutory mandatory minimum of twenty years, the guideline minimum became

240 months. The § 924(c) charge also carried a mandatory 7 year sentence

required to run consecutively to any other sentence imposed, which added an

additional mandatory 84 months. The government was obligated under the plea

agreement to recommend a sentence within the applicable guideline range and

thus recommended 27 years or 324 months at sentencing. Instead, the district

court sentenced M r. Herring to a total of 32 years or 384 months, imposing a

sentence of 25 years on Counts One and Three to be served concurrently and 7

years on Count Two to be served consecutively. M r. Herring contends his

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sentence is unreasonable. 1

“U nder Booker, we are required to review district court sentencing

decisions for ‘reasonableness.’” United States v. Cage, 451 F.3d 585, 591 (10th

Cir. 2006). In United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006), we

announced a two-step approach to review the procedural and substantive

components of sentences post-Booker. First, if challenged, we consider whether

the district court properly calculated the defendant’s guidelines sentence and

considered the factors set forth in 18 U.S.C. § 3553(a). See United States v.

Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006). If the district court properly

calculated the guidelines sentence, we then determine whether the sentence

imposed is reasonable in light of the factors set forth in 18 U.S.C. § 3553(a).

Kristl, 437 F.3d at 1054-55. Sentences imposed within the advisory guideline

range are presumed reasonable. Id. Even without that presumption, however, w e

are not convinced M r. Herring’s sentence is unreasonable when viewed in light of

the sentencing factors delineated in § 3353(a). See U nited States v. Ruiz-

Terrazas, 477 F.3d 1196, 1203-04 (10th Cir. 2007).

Because of the mandatory minimum sentences required here by statute, the

1
Tenth Circuit Rule 28.2(A)(1), (2) instruct appellants to attach to their brief a
copy of the transcript containing oral findings and conclusions. We admonish counsel
for failing to attach a copy of the transcript of Mr. Herring’s sentencing hearing, which
contained the district court’s sentencing decision and reasoning. Counsel’s failure was
particularly egregious given that he asserts as grounds for reversal the alleged lack of
reasoning in the district court’s decision.

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recommended guideline range became irrelevant and the mandatory minimums

became the guidelines range. U.S.S.G. § 5G1.1(b). Thus, the guidelines

sentence was properly calculated. Kristl, 437 F.3d at 1054-55. M oreover, the

court specifically considered the factors set forth in § 3553(a). See Rec., vol. II at

43-44. The court found the 27 year sentence inadequately reflected M r. Herring

discharging his weapon, creating substantial risks of death to not only the

hostages but also to law enforcement and the public, and abducting six hostages.

Id. at 39-40. See 18 U.S.C. § 3553(a)(1), (2)(A), and (3).

The court considered the abduction of hostages particularly important and

noted the guideline enhancement for hostages taken in the course of a bank

robbery only accounts for one hostage. See Rec., vol. II at 39-40; U.S.S.G. §

2B3.1(4) (affording four level increase for abduction of any one person). Adding

an additional year for each hostage, id. at 40, was a logical result given the

magnitude of M r. Herring’s actions. The guidelines themselves suggest a

departure where the offense level reflects only harm to one victim. See U.S.S.G.

§ 5K2.0, cmt. n.3(B)(ii) (noting guideline departure may be w arranted w here

guidelines only account for harm to one person). The district court

appropriately used the guidelines as its “starting point.” United States v. Terrell,

445 F.3d 1261, 1264 (10th Cir. 2006) (quoting United States v. Sitting Bear, 436

F.3d 929, 935 (8th Cir. 2006)). It then fashioned an appropriate sentence by

considering the factors set forth in § 3553(a). This was a reasoned method of

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calculating M r. Herring’s sentence. W e thus find no error in the procedural

component of M r. H erring’s sentence.

W e similarly see no problem with the substantive component of M r.

Herring’s sentence. Considering the reasonableness of a sentence requires us to

consider the weight the court accorded the various factors. Cage, 451 F.3d at

595. M r. Herring’s sentence only exceeded the mandatory minimum by five

years. Given M r. Herring’s actions during his crimes— taking six hostages,

putting his gun to at least one hostage’s head, shooting at the police, attempting to

hijack an airplane— M r. Herring’s sentence is reasonable. This case simply does

not involve the extraordinary discrepancy between the guidelines range and the

actual sentence required to determine it unreasonable. See Cage, 451 F.3d at 594-

95 (finding six day sentence unreasonable where bottom of applicable sentencing

range would have been forty-six months).

Under Booker, sentencing is discretionary and the district court used that

discretion to fashion a sentence that was reasonably tailored to M r. Herring’s

crimes. W e therefore A FFIR M .

ENTERED FOR THE COURT

Stephanie K. Seymour
Circuit Judge.

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