UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 99-60561
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FREDERICK FRANKS,
Defendant-Appellant.
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Appeal from the United States District Court
For the Northern District of Mississippi
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October 27, 2000
Before DAVIS, EMILIO M. GARZA, Circuit Judges, and POGUE, Judge1.
W. EUGENE DAVIS, Circuit Judge:
Franks challenges the district court’s dismissal of his § 2255
petition based on a single claim: his counsel was ineffective in
failing to object to the sentencing judge’s erroneous enhancement
of his sentence. For the reasons that follow, we REVERSE and
REMAND the judgment of the trial court.
I.
Appellant Frederick Franks was indicted on charges of armed
bank robbery and using a firearm in connection with a crime of
violence, in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C.
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Judge of the U.S. Court of International Trade, sitting by
designation.
§ 924(c). Following his conviction by a jury on both counts, the
court sentenced him to 74 months for the bank robbery plus a
consecutive sentence of 60 months for the firearms offense, for a
total of 134 months. In Franks’ § 2255 petition, he challenged the
district court’s two-level enhancement to his sentence under United
States Sentencing Guideline § 2B3.1(b)(2)(F) for an express threat
of death. He also asserted that his counsel had been ineffective
for failing to object to this alleged error. The district court
denied Franks’ § 2255 motion and dismissed the ineffective
assistance of counsel claim as meritless on the ground that no
significant difference existed between the sentence Franks received
and the sentence he would have received under a correct application
of the guidelines. Franks now challenges that ruling.
II.
Franks argues that his attorney provided ineffective
assistance of counsel by failing to object to the enhancement of
his sentence under § 2B3.1(b)(2)(F). To establish ineffective
assistance, Franks must show that his attorney’s representation
fell below an objective standard of reasonableness and that there
is a reasonable probability that the results of the proceedings
would have been different without the attorney’s errors.
Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052,
2064-65 (1984). Failure to establish deficient performance or
prejudice defeats an ineffective assistance claim. Id. at 697, 104
S.Ct. at 2069.
A.
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In order to determine whether Franks’ attorney committed error
in not objecting to the district court’s enhancement of Franks’
sentence, we first consider the correctness of that ruling.
The factual basis the trial court relied on for the express
threat of death enhancement was the trial testimony of the bank
teller, Mrs. Chailland. The trial court summarized this testimony
as follows:
Mrs. Shyland [sic] testified she arrived at
the bank about 8:20 the morning of June 25 and
entered through the back door. Before she
could relock the door, a man burst through it
with such force as to knock her out of her
shoes and hurl her sprawling in the floor.
When she looked up, the intruder was standing
over her with a gun ordering her to ‘turn off
the alarms.’ He ordered her to open the
vault, and as she knelt down to operate the
combination, he stood over her holding the gun
on her saying repeatedly: ‘If the police come,
I’ll shoot you.’ She was ‘scared to death’
and concerned about what might happen to her
co-worker if she arrived while the robbery was
in progress. The robber kept repeating he
would shoot her if the police arrived, and he
had the gun to her head, and when he pointed
it at her, he held it with both hands. She
was so upset she could not look at him and was
still so shaken when the police arrived that
she could not give a detailed description
because ‘if somebody holds a gun to your head,
you don’t calm down anytime soon.’
Sentencing Guideline § 2B3.1(b)(2)(A-F) provides enhancements
for sentencing in a robbery conviction for the use of a firearm,
use of a dangerous weapon, or for an express threat of death made
by the defendant during the course of a robbery. However,
Application Note 2 to § 2K2.4 provides that where a defendant
convicted of robbery is also convicted under 18 U.S.C § 924(c) or
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§ 929(a) for the use of a firearm in connection with a robbery and
sentenced under the mandatory provisions for those offenses, “any
specific offense characteristic for the possession, use, or
discharge of a firearm (e.g. §2B3.1(b)(2)(A)-(F) (Robbery)), is not
to be applied in respect to the guideline for the underlying
offense.” U.S.S.G. §2K2.4, Application Note 2.
Thus, it is clear that under the sentencing guideline
provisions cited above, the offense level for robbery may not be
enhanced for the use of a firearm if the defendant has also been
convicted of using a firearm during that robbery, which carries a
mandatory sentence. See, e.g., United States v. Washington, 44 F.
3d 1271, 1280 (5th Cir. 1995); United States v. Rodriguez, 65 F. 3d
932, 933 (11th Cir. 1995). The question presented in this appeal
is whether a threat of death -- particularly a threat related to
the use of the firearm -- is covered under the application note
quoted above so that the district court is precluded from enhancing
a sentence on this ground.
Franks argues that the “e.g. clause” of Application Note 2
makes it clear that the answer to this question is in the
affirmative. Sentencing Guideline § 2B3.1(b)(2)(F) establishes the
enhancement for an express threat of death and the “e.g. clause” to
Application Note 2 specifically refers to that section in stating
that the enhancement may not be applied where a defendant is also
convicted and given a mandatory sentence for the use of a firearm
in connection with that crime.
The Sixth and Ninth Circuits have adopted this view, and we
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agree. See, e.g., United States v. Smith, 981 F. 2d 887, 893 (6th
Cir. 1992); United States v. Duran, 4 F. 3d 800, 804 (9th Cir.
1993).2 We also agree with the Eighth Circuit qualification that
this enhancement is precluded only where the express threat of
death is related to the use of a firearm. United States v.
Triplett, 104 F. 3d 1074, 1081-82 (8th Cir. 1997).
In summary, we agree with all circuit courts who have
considered this question that § 2K2.4 seeks to avoid “double
counting” under these circumstances, and “double counting” would
occur if a defendant were sentenced for the use of a firearm during
the commission of a robbery and also enhanced at the sentencing
phase for threatening the victim of the robbery with the firearm.
We therefore hold that an express threat of death may not be used
to enhance a defendant’s sentence under § 2K2.4 when he is also
convicted of a violation of § 924(c) if the threat of death is
related to “the possession, use, or discharge” of the firearm for
which he was convicted under § 924(c). As is clear from the trial
testimony here, the threat of death Franks made was plainly related
to the use of the firearm. Therefore, the district court erred in
2
The Smith court stated,
[I]n view of Application Note 2 to the
Commentary for U.S.S.G. § 2K2.4, it is clear
that the Sentencing Commission viewed an
expressed threat of death as the equivalent of
possession, use, or discharge of a firearm in
the course of a robbery, and intended that the
enhancement under § 2B3.1(b)(2)(D) for an
express threat of death should not be applied
where the defendant is convicted of the
violation of 18 U.S.C. § 924(c).
Id. at 893.
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enhancing Franks’ sentence under § 2B3.1(b)(2)(F).
To establish an ineffective assistance of counsel claim, a
defendant must first show that counsel’s failure to raise an issue
fell “below an objective standard of reasonableness.” United
States v. Phillips, 210 F. 3d 345, 348 (5th Cir. 2000). In this
case, Franks’ counsel made no objection to the enhancement of his
sentence, in the face of three circuit court of appeals’ decisions
holding the enhancement to be improper under these factual
circumstances. Counsel’s failure to object falls below this
objective standard of reasonableness, and Franks has satisfied the
first prong of his ineffective assistance of counsel claim.
B.
To show prejudice from this deficient performance, Franks must
also show “a reasonable probability that but for trial counsel’s
errors the defendant’s non-capital sentence would have been
significantly less harsh.” Spriggs v. Collins, 993 F. 2d 85, 88
(5th Cir. 1993). The prejudice prong is satisfied, however, “when
a deficiency by counsel resulted in a specific, demonstrable
enhancement in sentencing -- such as an automatic increase for a
‘career’ offender or an enhancement for use of a handgun during a
felony -- which would not have occurred but for counsel’s error.”
United States v. Phillips, 210 F. 3d at 351; Spriggs, 993 F. 2d at
88, n.4. Without the improper enhancement, Franks’ offense level
would have been reduced from 27 to 25 and his guideline range from
70-87 months to 57-71 months. Franks was sentenced to 74 months --
three months longer than the maximum permissible guideline sentence
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had the Sentencing Guidelines been applied properly. Therefore,
the alleged error here did result in a specific, demonstrable
increase in sentencing, and Franks suffered prejudice because of
it.
III.
For the reasons stated above, we conclude that the district
court erred in rejecting Franks’ ineffective assistance of counsel
claim and in dismissing Franks’ § 2255 petition. We therefore
REVERSE the district court’s judgment and REMAND this case to the
district court for resentencing consistent with this opinion.
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