United States v. Terrell Carter
536 F. App'x 294
3rd Cir.2013Background
- Carter and co-conspirators stole a car in Williamsport (Middle District of PA) and drove to Altoona (Western District) to attempt robbery of Altoona First Savings Bank; a co-conspirator phoned in a bomb threat and employees evacuated; robbery failed.
- A federal grand jury indicted Carter for Hobbs Act conspiracy (attempted Altoona bank robbery) and for a separate Jersey Shore bank robbery; jury convicted on the Hobbs Act conspiracy count and hung on the Jersey Shore count; Carter later pleaded on the Jersey Shore charge and waived appeals as to it.
- Carter moved for acquittal arguing improper venue in the Middle District because the victim bank was located in the Western District; the district court denied the motion, finding overt acts in Williamsport established venue.
- At sentencing the PSR added (1) a two-level Guidelines enhancement under U.S.S.G. §2B3.1(b)(2)(F) for a "threat of death" based on the bomb threat, and (2) two criminal-history points for a 2002 Pennsylvania "malicious loitering" conviction; Carter objected to both enhancements.
- The district court overruled those objections, adopted an advisory Guidelines range of 92–115 months (offense level 23, CHC VI), and imposed a 115-month sentence; Carter appealed.
Issues
| Issue | Carter's Argument | Government's Argument | Held |
|---|---|---|---|
| Venue for Hobbs Act conspiracy | Venue improper in Middle District because the bank (victim) was in Western District and no substantial overt act occurred in Middle District | Venue proper where any conspirator committed an overt act in furtherance (the car theft, congregation, and departure from Williamsport occurred in Middle District) | Affirmed: overt acts in Williamsport permitted venue in Middle District |
| §2B3.1(b)(2)(F) "threat of death" enhancement | Bomb threat did not constitute a threat of death because no employee saw a bomb and none testified they feared death | A bomb threat conveying intent to "blow up the bank" would instill a reasonable victim with fear of death; enhancement hinges on reasonable victim response, not literal sighting | Affirmed: bomb threat qualifies as a threat of death for enhancement |
| Exclusion of "loitering" under U.S.S.G. §4A1.2(c)(2) | 2002 Pennsylvania "malicious loitering" conviction should be excluded as loitering or similar to loitering simpliciter | The PA statute requires malicious intent, nighttime and dwelling-location elements, and carries greater punishment — not loitering simpliciter nor sufficiently similar | Affirmed: malicious loitering is not "loitering" or similar; conviction properly counted in criminal history |
Key Cases Cited
- United States v. Rodriguez-Moreno, 526 U.S. 275 (venue determined from nature of crime and location of acts)
- United States v. Anderson, 328 U.S. 699 (same principle on venue)
- United States v. Perez, 280 F.3d 318 (3d Cir. 2002) (elements of conspiracy)
- United States v. Manzo, 636 F.3d 56 (overt act requirement for conspiracy)
- United States v. Pendleton, 658 F.3d 299 (venue for multi-district crimes)
- United States v. Cohen, 197 F.2d 26 (conspiracy venue can be laid where any conspirator acted)
- United States v. Figueroa, 105 F.3d 874 (mere statement of possessing a gun can trigger "threat of death" enhancement)
- United States v. Alexander, 88 F.3d 427 (threat-analysis principles)
- United States v. Thomas, 327 F.3d 253 (oblique threats can qualify as death threats)
- United States v. Bomski, 125 F.3d 1115 (bomb threat can qualify as a death threat)
- United States v. Hines, 628 F.3d 101 (analysis of §4A1.2(c)(2) "loitering" exclusion; multi-factor similarity test)
- United States v. Cespedes, 663 F.3d 685 (standard of review for Guidelines interpretation)
- United States v. Aquino, 555 F.3d 124 (Guidelines review principles)
- United States v. Brodie, 403 F.3d 123 (standard of review on Rule 29 appeals)