James Bey and three others conspired to rob the Waukegan, Illinois, branch of Associated Bank. They chose that location because one of the four, Latoya Thompson, worked there and as an insider could make a unique contribution to the crime. Bey gave David Schoenhaar, Jr. (another co-conspirator) a pellet gun for use in the robbery and waited in a nearby getaway car with the final coconspirator, Trevor Gregory, while Schoenhaar entered the bank, displayed the gun, and demanded money from the vault. Thompson and a (coerced) coworker retrieved some $221,000 from the vault and gave the money to Schoenhaar, who led the two to a bathroom while pointing the gun at them and saying he’d kill them if they left the bathroom. He then left the bank — only to discover that Bey and Gregory had gotten cold feet and fled. All four conspirators were apprehended, and charged with bank robbery and with conspiracy to commit that offense. 18 U.S.C. §§ 371, 2113(a).
In the district court Bey, the only defendant before us in this appeal, entered an “Alford plea” on each charge. That’s a plea of guilty by a defendant who maintains his innocence, but, perhaps thinking that if he goes to trial he’ll be found guilty (and not be able to get the judgment overturned on appeal), because there’s a mountain of evidence against him, pleads guilty in hopes of obtaining a lighter sentence. As explained in North Carolina v. Alford,
We note parenthetically that the terms “frivolous” and “nonfrivolous” are misleading in this context. Most claims or arguments held to be “frivolous” are not silly or laughable, as the word implies, but simply so clearly blocked by statute, regulation, binding or unquestioned precedent, or some other authoritative source of law that they can be rejected summarily.
And since we’re discussing word usage, we take the opportunity to question another bit of legal jargon. In innumerable cases in which a criminal defendant’s lawyer files an Anders brief our court states, usually as a prelude to granting the lawyer’s motion to withdraw and dismissing the appeal, that as long as the lawyer’s brief is “facially adequate” we’ll confine analysis to the issues discussed in the brief and in the defendant’s response (if any) to it. See, e.g., United States v. Vallar,
Turning at last to the merits, we begin with the strongest-seeming objection the defendant could make to his sentence for robbery (the sentence that determined the overall length of his prison term) — that he wasn’t one of the robbers. He neither entered the bank nor even participated in the getaway; he may have sped away from the bank before the robbery was under way. And as he wasn’t one of the robbers, why should he have been sentenced for robbery of the bank as well as for conspiring to rob it? The answer is that he admits having conspired to commit the bank robbery, and as a conspirator he is liable under the doctrine of Pinkerton v. United States,
Among the other factors that generated Bey’s high offense level were that Schoenhaar had brandished (displayed) a dangerous weapon, U.S.S.G. § 2B3.1(b)(2)(E), and had physically restrained coconspirator Thompson’s innocent coworker. § 2B3.1(b)(4)(B). These factors added five levels to Bey’s offense level. In addition, rejecting the probation service’s recommendation for a 2-level reduction for the defendant’s accepting responsibility for his crimes, § 3El.l(a), the judge instead added two offense levels for obstruction of justice, § 3C1.1, on the basis of evidence that the defendant had urged a potential -witness to ignore a subpoena served by the government to testify at the trial. The judge gave Bey two additional two-level enhancements, one for conspiring to rob a “financial institution,” U.S.S.G. § 2B3.1(b)(l), the other for the amount of money taken in the robbery. § 2B3.1(b)(7)(e). And he refused to give the defendant a 2-level reduction in his offense level as a minor participant in the conspiracy. § 3B1.2(b).
We note regarding the increases in total offense level for physically restraining the bank employee and brandishing a “dangerous weapon” that the “weapon” needn’t be lethal as long as it “closely resembles” a lethal weapon, U.S.S.G. §§ 1B1.1, Application Note 1(D); 2B3.1(b)(2)(E); United States v. Hart,
Not that pellet guns are harmless unless aimed at small rodents. People have been killed by them. See, e.g., StarLedger Editorial Board, “Pellet Guns Are Weapons Too,” Jan. 9, 2009, http://blog.nj.com/njv_ editorial_page/2009/01/pellet_guns_are_ weapons_too.html (visited April 10, 2014). Bank tellers have good reason to fear them.
In opposing the increase in his offense level for physically restraining the bank employee, Bey argues that he never anticipated that Schoenhaar would brandish the gun or physically restrain anyone. He says he thought that given Thompson’s participation the robbery would be an inside job and not perturb the bank’s customers or employees. But he knew that Schoenhaar had taken the gun into the bank — he’d given it to him for that purpose. And he had to know that since the robbery would be committed while the bank was still open for business, employees and customers would be present and Schoenhaar might well use the gun to herd them to somewhere in the bank in which they could neither interfere with the robbery nor escape. He pointed the gun at Thompson’s coworker (who was not an accomplice in the robbery, unlike Thompson), herded her into the bathroom, and threatened to kill her if she left it. See United States v. Taylor,
As for whether his encouraging a potential witness (his girlfriend) to ignore a trial subpoena was an obstruction of justice, he argues that he told her to ignore it only because he thought the government had dropped the charges against him. He presented no evidence in support of this implausible claim — not even an affidavit (which would have been some evidence). Furthermore, the subpoena had
Not that an increase in offense level for obstruction of justice can never coexist with an acceptance of responsibility discount. U.S.S.G. § 3E1.1, comment 4, says that “conduct resulting in an enhancement ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 [obstruction of justice] and 3E1.1 [acceptance of responsibility] may apply.” But there has to be evidence of contrition, see, e.g., United States v. Mayberry,
And finally Bey has no plausible claim for a minor-participant reduction in his guidelines range. He insists that he is less culpable than Thompson (who worked at the bank and assisted in the robbery), Schoenhaar (the principal executor of the robbery), and Gregory (Thompson’s boyfriend and the driver of the getaway car). Actually he’s as culpable as Schoenhaar and more culpable than the others: he recruited Schoenhaar to execute the robbery and supplied him with the pellet gun that Schoenhaar used in the robbery. See, e.g, United States v. McKee,
Given the defendant’s age (62) and poor health, a sentence of 92 months— almost eight years — is admittedly stiff. But it is so far below the bottom of the guidelines range that it cannot be thought excessive. We are pleased to see that the district judge sentenced the defendant as far below the guidelines range as he did in order to avoid imposing a sentence that in the circumstances would be “a sentence of life,” citing a recent opinion of this court expressing concern about sentences so long that they are likely to crowd the prisons with the elderly. United States v. Craig,
The motion of the defendant’s lawyer to withdraw is granted and the appeal dismissed.