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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