[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 30, 2006
No. 06-12076 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00273-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BILLY JACK KEENE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(November 30, 2006)
Before ANDERSON, BIRCH and CARNES, Circuit Judges.
CARNES, Circuit Judge:
Between July 26 and August 4, 2005, Billy Jack Keene and his co-
conspirators, Jesse Arnold and Jennifer Keene (Keene’s sister and Arnold’s
girlfriend), robbed three banks in southern Alabama. As part of each heist, Keene
or Jennifer would drive Arnold to and from the banks, while Arnold went inside,
handed the teller a threatening note, and took the money from the shaken teller.
The note Keene and Arnold jointly drafted for the first bank read, “Give me all the
money, and no one will get hurt! Love, me.” Keene, Arnold and Jennifer then
made away with $5,205.00.
Keene and his co-conspirators were arrested soon after the last bank robbery
following a tip from Arnold’s mother to the FBI that her son was responsible for
the string of robberies. Keene was indicted for three counts of taking money by
force or intimidation from a financial institution insured by the Federal Deposit
Insurance Corporation, in violation of 18 U.S.C. § 2113(a). He pleaded guilty to
all three counts without a plea agreement.
The probation office submitted a pre-sentence investigation report, which
recommended that the district court enhance Keene’s sentencing guideline base
offense level by two pursuant to U.S.S.G. § 2B3.1(b)(2)(F). That guidelines
provision specifies that if, in the course of a robbery, extortion or blackmail, “a
threat of death was made,” the defendant’s base offense level must be “increase[d]
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by 2 levels.” The theory was that the note Keene had helped draft, which was
handed to the teller at the first bank, constituted a threat of death. Keene objected
to any threat-of-death enhancement based on the note, arguing that while the note
warned the teller that she would be “hurt” if she did not comply with Arnold’s
demands, it did not imply that Arnold would kill her. Keene’s position is that the
threat of violence alone is not enough for the threat-of-death enhancement.
The district court overruled Keene’s objection, and based on the enhanced
offense level and Keene’s criminal history arrived at an advisory guidelines range
of 100 to 125 months imprisonment. Without the two-level threat-of-death
enhancement the guidelines range would have been 84 to 105 months
imprisonment. The district court sentenced Keene within the enhanced range,
imposing a 120-month sentence, but in doing so the court indicated that even if the
two-level enhancement had not been applied the court would have reached the
same sentence under its 28 U.S.C. § 3553(a) authority to impose a reasonable
sentence outside the guidelines range.
In his appeal to us, Keene raises the same issue that he did in the district
court, arguing that the U.S.S.G. § 2B3.1(b)(2)(F) enhancement does not apply to
threats of violence unless the robber brandished a weapon, stated or suggested he
had one, or at least made a menacing gesture. The issue is one of first impression
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before our Court. From what we can tell, only one other circuit has decided the
issue, and it held that the threat-of-death enhancement did in fact apply to
circumstances similar to those we have here. See, e.g., United States v. Thomas,
327 F.3d 253, 254–55 (3d Cir. 2003) (holding that note given to bank teller by the
defendant, which read, “Do exactly what this says, fill the bag with $100s, $50s
and $20s, a dye pack will bring me back for your ass, do it now. Truely [sic]
yours,” constituted a threat of death warranting the enhancement). That may be the
way the issue should be decided, but we need not decide it in this case.
The reason it is unnecessary for us to decide the enhancement issue is that a
decision either way will not affect the outcome of this case. We know it will not
because the district court told us that the enhancement made no difference to the
sentence it imposed. After the court overruled Keene’s objection and found what
the court believed to be the appropriate guideline range taking into consideration
the two-step enhancement, the court made clear that even if its interpretation and
application of U.S.S.G. § 2B3.1(b)(2)(F) was wrong, it would still hand down the
same 120-month sentence:
And I will say for the record that even if the guideline calculations are
wrong, my application of the sentencing factors under Section 3553(a)
would still compel the conclusion that a 10-year sentence [120
months] is reasonable and appropriate under all the factors that I
considered.
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(R:29:14). The court essentially accepted the invitation extended by the concurring
opinion in United States v. Williams, 431 F.3d 767, 773 (11th Cir. 2005) (Carnes,
J., concurring), which is not surprising since the same district court judge was
involved in both cases.
As the concurring opinion in Williams explained, “pointless reversals and
unnecessary do-overs of sentence proceedings” can be avoided if district courts
faced with disputed guidelines issues state that the guidelines advice that results
from decision of those issues does not matter to the sentence imposed after the §
3553(a) factors are considered. Id. Likewise, if resolution of the guidelines issue
does matter to the judge’s ultimate sentencing decision, noting that it does “will
help focus our attention on the issues that matter.” Id. This approach is a
legitimate one because, as the Williams concurring opinion explained, “[t]he
Supreme Court and this Court have long recognized that it is not necessary to
decide guidelines issues or remand cases for new sentence proceedings where the
guidelines error, if any, did not affect the sentence.” Id. (citations to four
supporting decisions omitted).
Whether to decide and state on the record if the decision of a guidelines
issue matters to the ultimate sentence imposed is up to the district court in each
individual case. Id. at 775–76 (“It is the prerogative of sentencing courts to speak
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or remain silent about such matters. The choice is theirs.”). Here, the district court
decided to speak on the matter and told us that its resolution of the §
2B3.1(b)(2)(F) enhancement issue did not matter because it would have imposed
the same sentence, using its § 3553(a) authority, even without the enhancement.
That is all we need to know, except for one thing.
The one thing we add to the approach suggested in the Williams concurring
opinion is that the sentence imposed through the alternative or fallback reasoning
of § 3553(a) must be reasonable. In determining whether it is reasonable we must
assume that there was guidelines error—that the guidelines issue should have been
decided in the way the defendant argued and the advisory range reduced
accordingly— and then ask whether the final sentence resulting from consideration
of the § 3553(a) factors would still be reasonable. Otherwise, we will not know
whether any error in deciding the guidelines issue, in arriving at the advisory
guidelines sentence, was truly harmless. The Williams concurring opinion
approach is, after all, an assumed error harmlessness inquiry. It has two
components. One is knowledge that the district court would have reached the same
result even if it had decided the guidelines issue the other way, and we know that
in this case because the court told us. The other component is a determination that
the sentence would be reasonable even if the guidelines issue had been decided in
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the defendant’s favor, and we turn to that question now.
As we have already pointed out, if the district court had decided the U.S.S.G.
§ 2B3.1(b)(2)(F) enhancement issue in Keene’s favor the advisory guidelines range
would have been 84 to 105 months, instead of the 100 to 125 months range that the
court arrived at applying the two-level enhancement. The question then, is whether
the 120-month sentence the court imposed is reasonable, assuming exactly the
same conduct and other factors in the case, but using an advisory range of 84 to
105 months.
Our post-Booker reasonableness review takes into account the § 3553(a)
factors as well as the advisory guidelines range. United States v. Booker, 543 U.S.
220, 261, 125 S. Ct. 738, 765–66 (2005) (maj. op. of Breyer, J.). It is a
“deferential” review, and the burden is on the defendant to prove that his sentence
is unreasonable in light of the record and section 3553(a). United States v. Valnor,
451 F.3d 744, 750 (11th Cir. 2006). Keene cannot carry the burden of showing
that his 120-month sentence was unreasonable even with an assumed advisory
guidelines range of 84 to 105 months.
The facts developed during the guilty plea and sentence process were that:
(1) Keene, at 29 years of age, had already been convicted of possession of
marijuana and cocaine, burglary, credit card fraud, passing bad checks, and driving
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while under the influence; (2) Keene was on probation at the time he committed
these crimes; (3) Keene had a leading role in planning the three bank robberies; (3)
Keene helped draft the note, which at the very least threatened violence against the
bank teller; and (4) Keene induced his sister, who had no criminal history, to join
in the criminal enterprise. Given the circumstances, a sentence of 120 months for
the three robberies is not unreasonable regardless of whether the guidelines range
is 84 to 105 months or 100 to 125 months. See United States v. Hunt, 459 F.3d
1180, 1185 (11th Cir. 2006) (“a district court may determine, on a case-by-case
basis, the weight to give the Guidelines, so long as that determination is made with
reference to the remaining section 3553(a) factors that the court must also consider
in calculating the defendant’s sentence”).
For these reasons, we conclude that if there was any misapplication of the
§2B3.1(b)(2)(F) enhancement, “the error did not affect the district court’s selection
of the sentence imposed.” Williams v. United States, 503 U.S. 193, 203, 112 S.
Court. 1112, 1120–21 (1992). Put a little differently, it would make no sense to set
aside this reasonable sentence and send the case back to the district court since it
has already told us that it would impose exactly the same sentence, a sentence we
would be compelled to affirm.
AFFIRMED.
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