PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4978
RONALD EVERETT KETCHUM,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Robert J. Conrad, Jr., Chief District Judge.
(5:06-cr-00026-RJC)
Argued: October 31, 2008
Decided: December 24, 2008
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the opin-
ion, in which Judge Michael and Judge Duncan joined.
COUNSEL
ARGUED: Randolph Marshall Lee, Charlotte, North Caro-
lina, for Appellant. Adam Christopher Morris, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Car-
olina, for Appellee. ON BRIEF: Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, for Appel-
lee.
2 UNITED STATES v. KETCHUM
OPINION
SHEDD, Circuit Judge:
Ronald Ketchum pled guilty and was convicted of taking
money from a bank "by force and violence, or by intimida-
tion" in violation of 18 U.S.C. § 2113(a), but he now appeals
his conviction, arguing that the district court erred in finding
a sufficient factual basis for his plea. We reject his contention
and affirm the conviction.
I
The following facts are not disputed. On February 14,
2006, Ketchum entered a Bank of America branch in Lenoir,
North Carolina, and handed a teller a note that read: "These
people are making me do this." After the teller read the note
and placed it aside, Ketchum stated: "They are forcing me and
have a gun. Please don’t call the cops. I must have at least
$500." The teller placed $1,686 into a bag and gave it to
Ketchum. Ketchum asked the teller to return the note to him,
and he then exited the bank with the note and money. The
teller followed Ketchum to the door and recorded the license
plate on his vehicle. Ketchum was apprehended a short time
later, and he voluntarily confessed to law enforcement offi-
cers that he had committed the crime.
As a result of the foregoing, a federal grand jury indicted
Ketchum on two counts arising under the federal bank rob-
bery statute, 18 U.S.C. § 2113. The first count, brought pursu-
ant to § 2113(a), charged Ketchum with taking the money
from the bank "by force, violence and intimidation;" the sec-
ond count, brought pursuant to § 2113(b), charged him with
taking the money from the bank "with intent to steal and pur-
loin."1
1
The terms "bank robbery" and "bank larceny" do not appear in the text
of §§ 2113(a) or 2113(b), see Carter v. United States, 530 U.S. 255, 266-
UNITED STATES v. KETCHUM 3
Without having a plea agreement, Ketchum appeared
before a magistrate judge for a plea hearing. Ketchum
expressly consented to proceed with the plea hearing before
the magistrate judge. During this hearing, the magistrate judge
explained Ketchum’s rights to him and stated that a district
judge would hold a later hearing to determine whether a fac-
tual basis for the plea existed and to impose his sentence.
Although there was some discussion about whether Ketchum
could ultimately be sentenced for both charged crimes, the
magistrate judge and the parties agreed that the issue would
be resolved by the district judge. Ketchum then pled guilty to
both of the charged crimes. Finding that Ketchum’s plea was
knowingly and voluntarily made, the magistrate judge
accepted the plea.
Before sentencing, Ketchum filed several objections to the
presentence report ("PSR"). Pertinent to this appeal, Ketchum
objected to the probation officer’s recommendation that he
receive a two-level enhancement pursuant to U.S.S.G.
§ 2B3.1(b)(2)(F) for making a threat of death. Ketchum
argued that he did not make such a threat, but if he did, it was
directed at himself. Ketchum also objected to having judg-
ment entered against him for bank robbery and bank larceny,
arguing that bank larceny is a lesser-included offense of bank
robbery.
67 (2000), but an offense under § 2113(a) is commonly referred to as
"bank robbery," and an offense under § 2113(b) is commonly referred to
as bank larceny, see, e.g., United States v. Carter, 540 F.2d 753, 754 (4th
Cir. 1976). Although these crimes are "very similar," they "are most strik-
ingly differentiated by the element of ‘force and violence, or . . . intimida-
tion’ which is required for conviction of bank robbery, but not for bank
larceny." Id. The penalty for bank larceny is less severe than for bank rob-
bery, but bank larceny is not a lesser-included offense of bank robbery.
Carter v. United States, 530 U.S. at 259. We note that Carter v. United
States abrogated United States v. Walker, 75 F.3d 178 (4th Cir. 1996), in
which we had reaffirmed circuit precedent holding that bank larceny is a
lesser-included offense of bank robbery. See 530 U.S. at 260.
4 UNITED STATES v. KETCHUM
Ketchum thereafter appeared before a district judge for sen-
tencing. At the beginning of the sentencing hearing, the dis-
trict judge inquired whether Ketchum still intended to plead
guilty, and Ketchum responded that he did. The district judge
then inquired whether a factual basis exists to support the
plea. The parties stipulated that the underlying facts are set
forth in the PSR. Based on that stipulation, the district judge
found that the plea is supported by an adequate factual basis.
Having accepted Ketchum’s plea, the district judge consid-
ered Ketchum’s objections to the PSR. In presenting the
above-noted objections, Ketchum’s attorney stated (inter alia)
that he did not "take issue with the underlying facts of this
case," J.A. 43, but he noted that "there may be an insufficient
factual basis . . . to sustain a conviction for bank robbery,"
J.A. 45. For that reason, Ketchum’s attorney asked the district
court to dismiss the bank robbery count and sentence
Ketchum on the bank larceny count. The district judge ulti-
mately concluded that Ketchum had in fact made a threat
using "language of intimidation," J.A. 50, but that he had not
made a threat of death. Accordingly, the district judge sus-
tained Ketchum’s objection to the two-level enhancement and
overruled his other objections. The district court sentenced
Ketchum to a prison term of 60 months on the bank robbery
count and dismissed the bank larceny count.
II
As noted, Ketchum contends that an insufficient factual
basis exists to support his conviction for bank robbery. Spe-
cifically, Ketchum argues that there is no evidence that he
used "intimidation" to commit the bank crime.2 Without such
evidence, Ketchum cannot be guilty of § 2113(a) bank rob-
bery because there is no contention that he used force or vio-
lence to commit the crime. See United States v. Davis, 915
F.2d 132, 133 (4th Cir. 1990) (noting that § 2113(a), "by its
2
Ketchum does not challenge any other aspect of his conviction.
UNITED STATES v. KETCHUM 5
terms, cannot be violated unless property is taken ‘by force
and violence’ or ‘by intimidation’").
A.
Federal Rule of Criminal Procedure 11(b)(3) requires the
district court to determine whether a factual basis exists
before entering judgment on a guilty plea. As we recently
explained:
The rule is intended to ensure that the court make
clear exactly what a defendant admits to, and
whether those admissions are factually sufficient to
constitute the alleged crime. The requirement to find
a factual basis is designed to protect a defendant who
is in the position of pleading voluntarily with an
understanding of the nature of the charge but without
realizing that his conduct does not actually fall
within the charge.
United States v. Mastrapa, 509 F.3d 652, 659-60 (4th Cir.
2007) (citations and internal punctuation omitted). It is "well
settled that a defendant may raise on direct appeal the failure
of a district court to develop on the record a factual basis for
a plea. . . ." United States v. Mitchell, 104 F.3d 649, 652 n.2
(4th Cir. 1997).
In making the Rule 11(b)(3) determination, the district
court "possesses wide discretion," and it "need only be subjec-
tively satisfied that there is a sufficient factual basis for a con-
clusion that the defendant committed all of the elements of the
offense." Mitchell, 104 F.3d at 652. The district court is not
required to "replicate the trial that the parties sought to
avoid," id., or to "rely only on the Rule 11 plea colloquy,"
Mastrapa 509 F.3d at 660. Rather, the district court "may
conclude that a factual basis exists from anything that appears
on the record," id. (citation and internal punctuation omitted),
and "it may defer its inquiry until sentencing," United States
6 UNITED STATES v. KETCHUM
v. Martinez, 277 F.3d 517, 531 (4th Cir. 2002). A "stipulated
recitation of facts alone [is] sufficient to support a plea. . . ."
United States v. Wilson, 81 F.3d 1300, 1308 (4th Cir. 1996).
We review the district court’s finding of a factual basis for
abuse of discretion, and "we will not find an abuse of discre-
tion so long as the district court could reasonably have deter-
mined that there was a sufficient factual basis based on the
record before it." Mastrapa, 509 F.3d at 660.3
B.
The "intimidation element of § 2113(a) is satisfied if an
ordinary person in the teller’s position reasonably could infer
a threat of bodily harm from the defendant’s acts, whether or
not the defendant actually intended the intimidation." United
States v. Woodrup, 86 F.3d 359, 364 (4th Cir. 1996) (internal
punctuation omitted). "Under this test, the subjective coura-
geousness or timidity of the victim is irrelevant; the acts of
the defendant must constitute intimidation to an ordinary, rea-
sonable person." United States v. Wagstaff, 865 F.2d 626,
627-28 (4th Cir. 1989) (citation omitted).
The "display of a weapon, a threat to use a weapon, or even
a verbal or nonverbal hint of a weapon is not a necessary
ingredient of intimidation under § 2113(a)." United States v.
Gilmore, 282 F.3d 398, 402 (6th Cir. 2002). Moreover,
"[i]ntimidation does not require proof of express threats of
3
The magistrate judge’s participation in the plea proceeding accords
with our precedent. See United States v. Osborne, 345 F.3d 281 (4th Cir.
2003) (holding that magistrate judges are authorized to conduct plea pro-
ceedings and that de novo review by a district judge is not required unless
the defendant requests such review or objects to some aspect of the magis-
trate judge’s plea colloquy); United States v. Benton, 523 F.3d 424 (4th
Cir.), cert. denied, 129 S. Ct. 490 (2008) (holding that magistrate judges
are authorized to accept guilty pleas); United States v. DeFusco, 949 F.2d
114, 116 (4th Cir. 1991) ("In reviewing the adequacy of compliance with
Rule 11, this Court should accord deference to the trial court’s decision
as to how best to conduct the mandated colloquy with the defendant.").
UNITED STATES v. KETCHUM 7
bodily harm, threatening body motions, or the physical possi-
bility of a concealed weapon." Id. at 403. Indeed, intimidation
generally may be established based on nothing more than a
defendant’s written or verbal demands to a teller, as the Sixth
Circuit has explained:
A review of the case law reveals that making a writ-
ten or verbal demand for money to a teller is a com-
mon means of successfully robbing banks. Demands
for money amount to intimidation because they carry
with them an implicit threat: if the money is not pro-
duced, harm to the teller or other bank employee
may result. Bank tellers who receive demand notes
are not in a position to evaluate fully the actual risk
they face.
Id. at 402;4 see also United States v. Hill, 187 F.3d 698, 701
(7th Cir. 1999) (holding that a "defendant’s actions can rise
to the level of intimidation if he confronted a bank employee
during the commission of the crime, even if the defendant was
unarmed or did not explicitly threaten a bank employee");
United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983)
(holding that although "the evidence showed that [the defen-
dant] spoke calmly, made no threats, and was clearly
unarmed, . . . the threats implicit in [his] written and verbal
demands for money provide sufficient evidence of intimida-
tion to support the jury’s verdict").5
4
In Gilmore, the Sixth Circuit held that "unequivocal written and verbal
demands for money to bank employees are a sufficient basis for a finding
of intimidation" under § 2113(a). Gilmore, 282 F.3d at 403.
5
In Hopkins, the defendant presented a note to the teller that read: "Give
me all your hundreds, fifties and twenties. This is a robbery." 703 F.2d at
1103. After the teller replied that she had no hundreds or fifties, the defen-
dant stated: "Okay, then give me what you’ve got." When the teller left
the bank window (ostensibly to get the money) and went to the vault, the
defendant "left the bank in a nonchalant manner." Id.
8 UNITED STATES v. KETCHUM
C.
Viewed in this light, we conclude that the evidence is suffi-
cient to establish that Ketchum took the money from the bank
"by intimidation." After presenting the note to the teller that
read, "These people are making me do this," Ketchum then
stated, "They are forcing me and have a gun. Please don’t call
the cops. I must have at least $500." In response, the teller
gave Ketchum $1,686, and he left the bank. Ketchum thus not
only confronted the teller and made a verbal demand for
money, which alone may be sufficient to constitute intimida-
tion, but he also referenced a gun. The fact that Ketchum did
not specify who possessed the gun or how the gun would be
used is immaterial because an ordinary person in the teller’s
position reasonably could infer that the gun would be used
against the teller (or perhaps someone else) if Ketchum’s
demand for money was not met. See generally United States
v. Epps, 438 F.2d 1192, 1193 (4th Cir. 1971) (finding that
note that read "Put all your money in this bag and nobody will
get hurt" sufficient to sustain conviction for bank robbery by
intimidation).6
6
Ketchum argues that his comments regarding the gun can be construed
only to imply that he (rather than a teller) was at risk and, consequently,
he was merely appealing to the teller’s sympathy. Although not directly
on point, the Ninth Circuit addressed a somewhat similar argument in
United States v. Strandberg, 952 F.2d 1149 (9th Cir. 1991), which was an
appeal from a sentencing enhancement for an "express threat of death"
under U.S.S.G. § 2B3.1(b)(2)(F). During the bank robbery, the defendant
(who apparently was alone) told the teller not to pull the alarm "or my
friend will start shooting." 952 F.2d at 1150. On appeal, the defendant
argued that he did not expressly threaten death because "the threat did not
indicate that a person would be shot." Id. at 1151. However, the Ninth Cir-
cuit affirmed the enhancement, noting that § 2B3.1(b)(2)(F) "does not
require that the defendant state that he intends to kill the teller if his
demands are not met," and concluding that "a reasonable person hearing
the words ‘my friend will start shooting’ if the . . . alarm is pulled would
experience significantly greater fear than the level of intimidation that is
necessary to constitute an element of the offense of robbery." 952 F.2d at
1151.
UNITED STATES v. KETCHUM 9
Ketchum’s reliance on our decision in Wagstaff is mis-
placed. In that case, we found insufficient evidence to sustain
a § 2113(a) bank robbery conviction where the defendant,
who never came within eight feet of a teller, walked through
an open gate and removed money from an open cash drawer.
We held that because the defendant "was neither wearing nor
carrying a weapon, produced no note and said nothing, and
made no threatening gestures," the evidence was insufficient
as a matter of law to support a conclusion that he committed
the crime by intimidation. Id. at 629. The Wagstaff facts are
wholly inapposite to this case, where Ketchum directly con-
fronted a teller and mentioned a gun during his demand for
money.
III
Based on the foregoing, we hold that the district court did
not abuse its discretion in finding sufficient facts to support
Ketchum’s plea to § 2113(a) bank robbery. Accordingly, we
affirm the judgment.
AFFIRMED