United States v. Roberts

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-40351

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES RAY ROBERTS,

Defendant-Appellant.

_______________________________

Appeal from the United States District Court
for the Eastern District of Texas
_______________________________
February 11, 2000
Before BARKSDALE, BENAVIDES and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant James Ray Roberts (“Roberts”) appeals from the

district court’s imposition of the 120-month maximum sentence for

a violation of 18 U.S.C. § 922(g)(1). Because we find that the

district court did not err in its calculation of the relevant

offense level, we affirm.

I. Factual and Procedural Background

On November 23, 1997, Roberts and his cohorts Mark Ervin

Thibodeaux (“Thibodeaux”) and Jason Rhine (“Rhine”) decided to

ride their four-wheel all terrain vehicles (“ATVs”) on private

property in Cypress Lakes, Liberty County, Texas, and poach some

wild hogs. The owner of the aforementioned private property,
hearing shots and spotting the ATVs, called the Texas Parks and

Wildlife game wardens.

Meanwhile, in another part of the forest, Liberty County

Deputy Constable Kenneth Gray (“Deputy Gray”) and his 16-year old

son were heading home from deer hunting when they heard the call

regarding the poachers. Responding to the call, Deputy Gray

drove to Cypress Lakes. Upon hearing ATVs in the woods, Deputy

Gray parked his truck, left his son inside it, and walked into

the thicket alone.

He soon saw two ATVs approaching him. Realizing that the

men nearing him were not game wardens, Deputy Gray knelt in the

weeds, pulled out his badge and affixed it over his left-breast

pocket. When the ATV carrying Roberts and Thibodeaux (and a dead

hog strapped to its front rack) was approximately 3 feet away,

Deputy Gray stood up and pointed his .357 handgun at them, saying

“Stop. Liberty County Constable’s Department.” At that point,

the other ATV, driven by Rhine, fled into the woods.

Deputy Gray fired one shot into the air and ordered Roberts

and Thibodeaux to dismount the ATV and lie down on the ground

with their hands behind their backs. Roberts and Thibodeaux

complied. Deputy Gray then proceeded to handcuff Roberts, but

had difficulty so doing because Roberts was wearing thick gloves.

To better accomplish his task, Deputy Gray put his .357 handgun

on the ground, and devoted both his hands to cuffing Roberts.

At that point, Thibodeaux grabbed the barrel of Deputy

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Gray’s handgun. Deputy Gray reached for the grip of the gun, and

the two struggled to gain control of it. Thinking that

Thibodeaux and Roberts meant to kill him, Deputy Gray fired two

shots from his gun, in an attempt to empty it. Roberts entered

the fray, punching Deputy Gray in the face and flaying him with

the handcuff Deputy Gray had managed to clasp about one wrist,

until Roberts had broken Deputy Gray’s nose and shut one of his

eyes.

Thibodeaux broke Deputy Gray’s hand, and, with the gun he

had thereby captured, Thibodeaux beat Deputy Gray in the head

five or six times, breaking his jaw, severing his ear, fracturing

his skull and gashing his head. This assault left Deputy Gray

subdued and lying on his back; Roberts took the opportunity to

ask Deputy Gray about the keys to the handcuffs and removed them

from Deputy Gray’s pocket.

Roberts and Thibodeaux then bound Deputy Gray’s hands and

feet together and tied him to a tree. They told him that they

were not going to kill him; they merely wanted to get away.

Taking the key to the handcuffs and Deputy Gray’s handgun with

them, they mounted their ATV and drove off into the woods.

After a time, Deputy Gray managed to untie himself, and he

walked back to his truck. Knowing his son was scared, he called

out in the dark, “It’s me, don’t shoot.” Luckily, Deputy Gray’s

boy kept his wits about him, and had actually called for

assistance upon hearing the scuffle and shots fired. His son

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then drove him to the guard station where Deputy Gray received

medical attention.

Roberts and Thibodeaux’s getaway was short-lived. Soon

after the assault, their route took them past some alerted game

wardens. After drawing their weapons and threatening to shoot,

the game wardens finally convinced Roberts and Thibodeaux to

stop. Roberts turned to Thibodeaux and said, “You should have

shot that big son of a bitch when you had the chance.”

Presumably, he meant Deputy Gray.

The game wardens found two hunting rifles and the dead hog

in the ATV. They also discovered Deputy Gray’s gun, covered with

blood, in Thibodeaux’s pants. Roberts was still wearing the

handcuffs on one wrist, but he had Deputy Gray’s keys in his

pocket. Both men were soaked with blood.

Roberts pled guilty to violating 18 U.S.C. § 922(g)(1),

possession of a firearm by a felon. Because he used the firearm

in furtherance of a robbery, because the victim was an officer of

the law and because he had previously been convicted of

aggravated rape and burglary, both crimes of violence, the

Presentence Investigation Report (“PSR”) recommended that Roberts

receive the maximum sentence of 120 months. Roberts filed his

objections to the PSR, but the district court rejected them in

toto and adopted the PSR.

Roberts timely filed this appeal.

II. Standard of Review

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 When reviewing the district court’s imposition of sentence,

we apply de novo review to the lower court’s interpretation of

the Sentencing Guidelines and clear error review to its factual

findings. See United States v. Rice, 185 F.3d 326, 328 (5th Cir.

1999). “A defendant’s sentence must be upheld unless [he]

demonstrates that it was imposed in violation of the law, was

imposed because of an incorrect application of the guidelines, or

is outside the range of applicable guidelines and is

unreasonable.” United States v. Morrow, 177 F.3d 272, 300 (5th

Cir. 1999).

III. Discussion

Roberts advances numerous frivolous arguments and one

question of first impression in this Circuit. We therefore write

primarily to address Roberts’s claim that the district court

erred when it imposed a 7-level increase for the discharge of a

firearm in connection with the robbery.

Roberts’s objection to the 7-level increase1 derives from

the fact that Deputy Gray fired the weapon. Roberts argues that

if Roberts’s own sentence can be increased by Deputy Gray’s

1
Just how and why § 2B3.1(b)(2) applies to this conviction requires
a complicated explanation. Roberts pled guilty to violating 18 U.S.C. §
922(g)(1), possession of a firearm by a felon. Section 2K2.1 of the
Sentencing Guidelines applies to the unlawful possession of firearms.
Subsection (c) of that statute provides for a cross-reference to § 2X1.1 if
the defendant’s possession of the firearm was in connection with the
commission or attempted commission of another offense. Section 2X1.1 applies
to attempts, and subsection (a) of that statute directs that the base offense
level of the substantive offense–here, armed robbery–applies. Therefore, the
PSR looked to § 2B3.1, which provides for a base offense level of 20, and a 7
level enhancement if the firearm was discharged during the offense.

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discharge of a weapon during a robbery, law enforcement officials

will have an incentive to shoot at criminals during robberies in

an effort to increase their sentences.

As it happens, the Circuits seem to be split on this

question. In United States v. Gordon, 64 F.3d 281 (7th Cir.

1995), the Seventh Circuit confronted the situation where an

armed guard in a bank told Kevin Gordon (“Gordon”), a bank

robber, “Don’t move, or I’ll shoot.” Gordon disregarded this

instruction, and the armed guard shot him. The government argued

that “because Gordon struggled with the security guard after

being told to stop struggling or be shot, Gordon ‘induced . . .

or willfully caused’ the discharge of a firearm.” Id. at 283.

The Seventh Circuit rejected this argument. It reasoned that

both “induce” and “willfully cause” “contain an element of

specific volition, an actual intent or desire that one’s actions

create the specific result.” Id. “A criminal would have to be

suicidal to intend that a guard discharge a firearm during a

robbery . . . . [and] [w]e do not think the Guidelines were

intended to cover such an extreme and unlikely possibility.” Id.

The court went further, though, and held that “a defendant may

not properly be given a sentence adjustment under § 2B3.1 where a

non-participant in the crime discharges a firearm.” Id. at 284;

see also United States v. Mendola, 807 F. Supp. 1063, 1064

(S.D.N.Y. 1992) (denying the enhancement where an armored truck

guard discharged a firearm while pursuing the robbers).

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 The Eleventh Circuit split with the Seventh’s broad holding

in United States v. Williams, 51 F.3d 1004 (11th Cir. 1995),

overruled on unrelated grounds in Jones v. United States, 119 S.

Ct. 1215 (1999). In that case, Alphonzo Leon Williams

(“Williams”) had attempted to carjack Scott Whitehead and Tim

Donaldson (“Donaldson”) at gunpoint. Donaldson fired a pistol at

Williams, who retreated. The Eleventh Circuit held that, because

Williams induced Donaldson to fire in self-defense, the discharge

of the firearm was fairly attributed to Williams. See id. at

1011; see also United States v. Triplett, 104 F.3d 1074, 1083

(8th Cir. 1997) (“The guidelines do not require that the

defendant, as opposed to an accomplice or co-conspirator, have

fired the weapon. Rather, there merely must be evidence, as

there is in this case, that a weapon was discharged during the

robbery.”).

Though Gordon and Williams diverge irreconcilably on the

question of whether a defendant can be given a 7-level

enhancement under § 2B3.1(b)(2) where a non-participant

discharges the firearm, we feel that we are constrained by the

plain language of § 1B1.3 to permit the enhancement on these

facts. Under § 1B1.3, Roberts is liable for “all acts and

omissions . . . [that he] aided, abetted, . . . induced or

willfully caused[.]” Roberts unquestionably induced and

willfully caused Deputy Gray to fire his handgun. Thibodeaux had

grabbed Deputy Gray’s gun and Roberts was smashing Deputy Gray in

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the face with his fists and the handcuffs he was wearing. Deputy

Gray feared for his life and sought to empty his weapon to

prevent Roberts and Thibodeaux from using his own gun on him. By

aiding and abetting Thibodeaux in wresting control of the gun

away from Deputy Gray, Roberts induced Gray to fire the gun into

the ground, and the 7-level increase is therefore proper.

We emphasize that the Seventh Circuit in Gordon found that

Gordon could not be said to have willfully caused the discharge

of the firearm because he did not intend or desire that his

specific actions (struggling with the armed guard) would give

rise to the discharge of the firearm. Here, on the other hand,

we think it beyond question that Roberts’s specific actions

(punching Deputy Gray in the face) willfully caused Deputy Gray

to fire his handgun. Therefore, we find Gordon distinguishable,

and hold, on these facts, that the 7-level enhancement is proper.

As mentioned previously, Roberts raised many other

complaints on appeal. He objected to the PSR’s refusal to apply

the base offense level applicable where the defendant possesses

the firearm for a lawful sporting purpose, to a 2-level increase

for possession of a stolen firearm, to a 4-level increase for

possession of a firearm in connection with another offense, to

the cross reference to the armed robbery statute, to a 4-level

increase imposed because the victim sustained serious bodily

injury, to a 2-level increase for physically restraining the

victim to facilitate an escape, to a 1-level increase for

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stealing the victim’s firearm and finally, to a 3-level increase

for the official status of the victim. Upon careful review of

these claims, we deem them devoid of merit and frivolous. We

therefore affirm.

IV. Conclusion

We hold that Roberts is properly accountable for the

discharge of a firearm in the course of an armed robbery, where

Roberts’s actions induced the victim to fire the weapon. Because

the district court did not, therefore, err in its application of

the Sentencing Guidelines, we affirm Roberts’s sentence.

AFFIRMED.

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