United States Court of Appeals,
Eleventh Circuit.
Nos. 95-6724, 95-6725.
UNITED STATES of America, Plaintiff-Appellee,
v.
Kenneth P. DUDLEY, John Perkins, a.k.a. Jumiah I. Perkins,
Defendants-Appellants.
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles Roderick WILSON, Defendant-Appellant.
Jan. 6, 1997.
Appeals from the United States District Court for the Northern
District of Alabama. (No. CR-95-PT-76-W), Robert B. Propst, Judge.
Before TJOFLAT and DUBINA, Circuit Judges, and STAGG*, Senior
District Judge.
PER CURIAM:
This case involves an armed robbery of a Tuscaloosa, Alabama,
bank. Appellants Charles Roderick Wilson ("Wilson"), Kenneth P.
Dudley ("Dudley") and John Perkins ("Perkins") (collectively "the
defendants") were charged in a multi-count federal indictment.
Wilson and Dudley were charged in Count One with armed bank
robbery, in violation of 18 U.S.C. § 2113(a), (d); in Count Two
with using a firearm in connection with a crime of violence, in
violation of 18 U.S.C. § 924(c)(1); and in Count Three with
carrying and using a dye bomb to commit armed robbery, in violation
of 18 U.S.C. § 844(h)(1). Perkins was charged with the same
offenses as well as a charge of felon in possession of a firearm,
*
Honorable Tom Stagg, Senior U.S. District Judge for the
Western District of Louisiana, sitting by designation.
in violation of 18 U.S.C. § 922(g) (Count Four). The district
court severed Dudley and Perkins' trial from Wilson's trial. After
a trial by jury, Dudley was convicted on Counts One and Two and
Perkins was convicted on Counts One, Two and Four. The government
did not pursue the dye bomb count during the Wilson trial due to
evidence that the device was not an explosive, as contemplated by
the statute. Wilson entered a plea of not guilty by reason of
insanity and, after a trial by jury, was convicted on Counts One
and Two. The defendants then perfected their appeals.
I. BACKGROUND FACTS
On March 17, 1995, at 4:25 p.m., bank tellers Flo Criss
("Criss"), Darlene Hutson ("Hutson"), Yvonne Crackin ("Crackin"),
Paige Bailey ("Bailey"), and Martha Lord ("Lord") were at work at
the First State Bank, University Mall Branch, in Tuscaloosa,
Alabama. Criss asked two black male customers if she could help
them at which time one of them pulled a gun and announced a
stick-up. He then grabbed Criss by her neck, told her she would be
killed, and forced her to the floor. During the robbery a shot was
fired and a dye bomb detonated. Criss identified Wilson in open
court as the man who vaulted the teller counter and accosted her.
All of the bank employees feared for their lives. Specifically,
the defendants pushed all of the bank tellers to the floor and
threatened them to keep their heads down or they would be shot.
During the robbery, four bank surveillance cameras operated
continuously at five second intervals, revealing three men at
various locations inside the bank. A bystander in the mall parking
area observed what he thought was a bank robbery and, after hearing
a gun shot, telephoned 911. He also saw three black males flee in
a black Chevrolet Lumina with an Illinois tag.
Isom Thomas ("Thomas"), Chief Deputy of the Green County
Sheriff's Office, was on the look out for a vehicle with an
Illinois tag occupied by three black males who had just robbed a
bank in Tuscaloosa. He spotted the vehicle on Interstate 59-20 and
engaged in a high speed chase, at times approaching speeds of 100
to 120 miles per hour. The defendants' vehicle went airborne at
one point as it crossed a railroad track. The chase caused other
vehicles to run off the road. Finally, the Lumina crashed into a
tree, and the defendants ran into the woods. After a search for
the suspects that involved the Alabama State Troopers, Tuscaloosa
SWAT Team, Sumter County Sheriff's Department, Pickens County
Sheriff's Department, and the Eutaw Police, the defendants were
apprehended. The defendants had in their possession bullet proof
vests and were heavily armed. Police found cash in a black back
pack outside the passenger door of the Lumina which contained
several bills with serial numbers matching the bank's bait list.
In addition, Perkins gave a post-arrest, written statement to
the authorities commenting on his participation in the crime.
Three firearms found in the possession of the defendants were
operable and were admitted into evidence at trial. The getaway
vehicle was registered to Wilson's mother, who resided in Chicago,
Illinois. It was later determined that the vehicle was jointly
owned by Wilson and his mother.
II. ISSUES
The defendants present the following issues for appellate
review: (1) whether the government presented sufficient evidence
to convict Dudley of armed bank robbery and possession of a firearm
while committing a crime of violence; (2) whether the district
court erred in admitting into evidence .45 caliber ammunition
contained in a bag and listed on an inventory sheet, where both bag
and sheet were in evidence; (3) whether the government presented
sufficient evidence to convict Perkins of using a firearm while
committing a crime of violence; (4) whether the government
presented sufficient evidence to convict Perkins of the crime of a
felon in possession of a firearm; and (5) whether the district
court erred by increasing Wilson's offense level under the
sentencing guidelines by 2 points because the robbery was of a
financial institution.
III. STANDARDS OF REVIEW
We review sufficiency of the evidence claims in the light
most favorable to the government, drawing all reasonable inferences
and making all credibility determinations in support of the jury's
verdict. United States v. Thomas, 987 F.2d 697, 701 (11th
Cir.1993).
We review district courts' rulings on the admission of
evidence for abuse of discretion. Joiner v. General Elec. Co., 78
F.3d 524, 529 (11th Cir.1996), pet. for cert. filed, 65 U.S.L.W.
3110 (Aug. 5, 1996).
We review interpretations of the sentencing guidelines de
novo. United States v. Goolsby,908 F.2d 861, 863 (11th Cir.1990).
Impermissible double counting occurs when one part of the
guidelines is applied to increase a defendant's sentence to reflect
the kind of harm that has already been fully accounted for by
another part of the guidelines. United States v. Alexander, 48
F.3d 1477, 1492 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct.
210, 133 L.Ed.2d 142 (1995). "Double counting a factor during
sentencing is permissible if the Sentencing Commission intended the
result, and if the result is permissible because "each section
concerns conceptually separate notions related to sentencing.' "
United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir.1992)
(citations and quotations omitted).
IV. DISCUSSION
After reviewing the record in this case, we conclude that the
defendants' arguments concerning the first four issues are
meritless and require no further discussion.1 However, the
sentencing issue—whether the district court properly increased
Wilson's offense level by two points under U.S.S.G. § 2B3.1 because
the robbery was of a financial institution—requires discussion.2
Wilson correctly points out that he was sentenced for bank
robbery. The district court increased his sentence by two points
under subsection (b)(1) because the property was taken from a
1
See 11th Cir.R. 36-1.
2
U.S.S.G. § 2B3.1 provides in relevant part:
Robbery
(a) Base Offense Level: 20
(b) Specific Offense Characteristics
(1) If (A) the property of a financial institution
or post office was taken, or if the taking of such
property was an object of the offense, or (B) the
offense involved carjacking, increase by 2 levels.
financial institution. Wilson contends that such enhancement was
improperly duplicative because his offense level already fully
accounted for the level of culpability ascribed to the crime of
bank robbery. He relies on United States v. Morrill, 984 F.2d 1136
(11th Cir.1993), as addressing a "similar" issue.
Wilson's argument is misplaced. Morrill dealt with the issue
of whether individual bank tellers are vulnerable victims. That
was the sole issue presented in the case and that is not the issue
presented here. However, United States v. Alexander, 48 F.3d 1477
(9th Cir.1995) is directly on point. There, the Ninth Circuit
determined that the Sentencing Commission sought to punish
robberies of financial institutions and post offices more severely
because those entities typically keep large amounts of readily
available cash and therefore are particularly attractive as robbery
targets. The Alexander court concluded that defendants bear the
burden of demonstrating that the guideline provision is irrational.
The Eighth Circuit reached the same conclusion in United States v.
McNeely, 20 F.3d 886, 888 (8th Cir.), cert. denied, --- U.S. ----,
115 S.Ct. 171, 130 L.Ed.2d 107 (1994). In the present case, we are
likewise persuaded that Wilson has failed to meet his burden.
Although we have not addressed this sentencing issue of first
impression in our circuit, we find the reasoning of our sister
circuits persuasive and hold that the district court did not err by
increasing Wilson's offense level by two points because the robbery
was of a financial institution. Accordingly, we affirm the
defendants' convictions and sentences.
AFFIRMED.