United States v. Anthony Dewayne FrankUnited States v. Anthony Dewayne Frank
Defendant-Appellant Anthony Dewayne Frank appeals the district court‘s
I. BACKGROUND
On October 10, 1997, Frank telephoned for a taxiсab. Shortly thereafter, a cab arrived and pulled away with Frank in the back seat. Upon arrival at his destination, Frank took the cab driver‘s keys and money at gunpoint and ordered him to get into the trunk of the cab. Frank then got into thе driver‘s seat and drove away. Witnesses contacted the police and, after attempting to flee, Frank eventually was apprehended. A .22 caliber revolver was found hidden between the mattress and box spring of the bеd behind which he was hiding. A black bag containing clothing, .22 caliber ammunition and a note which read: “This is a stick-up (No Signal) No Large Bills. I am armed” were later discovered in the back seat of the cab.
In January 1999, Frank was indicted by a grand jury for carjacking in violation of
II. STANDARDS OF REVIEW
The district court‘s application of § 3A1.1(b) in determining whether a “vulnerable victim” enhancement is warranted is a mixed question of law and fact that we review de novo. See United States v. Malone, 78 F.3d 518, 520 (11th Cir. 1996). However, the district court‘s determination of a victim‘s “vulnerability” is essentially a factual finding to which we should give due deference. See id. Further, the district court‘s findings of “historical fact” will be reversed only if clearly erronеous. See id. at 520-521.
The district court‘s determination of whether a defendant is entitled to a
III. DISCUSSION
A. Vulnerable Victim
Frank objects to the two-level sentence increase he received for targeting a “vulnerable victim” under U.S.S.G. § 3A1.1(b),1 asserting that the government failed to prove by a preponderаnce of the evidence that Frank targeted the taxi cab because he knew that cab drivers must respond to all dispatches and thus are particularly vulnerable to carjackings. In United States v. Malone, 78 F.3d 518 (11th Cir. 1996), this Court considered whether a cab driver was a “vulnerable victim” within the meaning of § 3A1.1, where the defendants had called a cab for the purposes of robbing the driver and stealing the vehicle. The Malone Court began by emphasizing that the enhancement is “appropriаte only where the defendant targets the victim based on the latter‘s unique characteristics.” Id. at 521. In other words, “the vulnerable victim adjustment focuses chiefly on the
The district court found the victim in this case to be similarly vulnerable. At Frank‘s sentencing hearing, defense сounsel argued that the government had failed to prove that the victim was selected because he was a cab driver. The district court disagreed, stating: “Well, I heard the facts in this case, as I presided over the trial, and I find by а preponderance of the evidence that the defendant‘s calling the taxi was part of the plan and that he did have the intent to carjack the cab from the very beginning. So I‘m denying that objection. . . .” The evidencе of a “plan” referred to by the court included the robbery note, bag, extra clothes, and extra ammunition. The district court was convinced that Frank had decided that he needed a vehicle to effectively carry оut a robbery of some sort, and summoned the
The determination that a defendant has targeted a victim based on his or her vulnerability to a pаrticular crime must take into account the totality of the circumstances, including in some cases the victim‘s membership in a certain class or occupation. We emphasize, however, that nothing in this opinion should be tаken as suggesting a sentence enhancement in every case where a defendant is convicted of committing a crime against a cab driver. As this Court reaffirmed in Malone, a victim is not to be considered “vulnerable” for purposes of sentencing enhancement based solely on his or her membership in a class. See id. at 521. Whether a “vulnerable victim” sentence enhancement should be made is a fact intensive inquiry that must be made on a case-by-case basis. Undеr the circumstances presented in this case, and in light of the deference owed the district court‘s factual finding concerning the victim‘s vulnerability, we affirm its
B. Acceptance of Responsibility
Frank also appeals the district court‘s refusal to grant him a two-level dоwnward adjustment of his sentence for acceptance of responsibility under U.S.S.G. § 3E1.1(a). At the sentencing hearing, Frank argued that his plea of insanity did not automatically preclude a downward adjustment for acceptanсe of responsibility and that, by notifying the government and the court prior to trial of his intent to assert this defense, he had accepted responsibility for the crime and was entitled to the adjustment. The government responded by pоinting out that Frank, at least implicitly, called into question his involvement in the carjacking by cross-examining a number of witnesses at trial concerning their identification of him. The government also notes that Frank only presented the insanity defense to the jury after the government had completed its case. At the sentencing hearing the following exchange took place:
THE COURT: Mr. Williams, I think you are correct that it‘s possible for him to receive the reduction for acceptance of responsibility. But under the facts of this case, I just don‘t think he is entitled to it. [] In other words if he had gone to trial on this issue of insanity [] from the beginning [] and that was the issue heard by the jury. Ordinarily when the defendant puts the government tо trial, it‘s extremely rare for the defendant to get acceptance of responsibility. But you are correct; it‘s possible for him to do it. I just don‘t feel that he‘s entitled to it in this case.
MR. WILLIAMS: Judge. . .if I may respond? [] Your honor, we enterеd a
THE COURT: I‘m not suggesting. . . it was a secret. But I heard the trial. [] I mean I know how the trial went. [] I feel here that since the defendant was taking the chance having it both ways – I don‘t think he got up initially and admitted anything.
Frank maintains that the tactical decision of a defense attorney to give an opening statement at the close of the government‘s case should not be a bar to an acceptance of responsibility reduction. Whether or not this is true, the application notes following the sentencing guideline concerning reductions on this basis indicate that putting the government to its burden of proof is а factor that may be considered by the sentencing judge.2 Further, this was not the only basis for the district court‘s decision. The application notes for guideline 3E1.1 also state that “a determination that a defendant has accеpted responsibility will be based on primarily pre-trial statements and conduct.” See
A district court is in a “unique position to evaluate” whether a defendant sufficiently demonstrates aсceptance of responsibility; therefore “the determination of the sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1 app. 5. The court below acted within its discretion in denying Frank’ s request for a sentence reduction based on acceptance of responsibility and we will not disturb that determination.
AFFIRMED.