UNITED STATES of America, Plaintiff-Appellee, v. Ernest Lee WILLIAMS, Jr., a/k/a Big Cat, Defendant-Appellant.
No. 15-4217
United States Court of Appeals, Fourth Circuit.
Decided: November 10, 2016
841 F.3d 656
Argued: September 23, 2016
PETITION FOR REVIEW DENIED
Before TRAXLER, SHEDD, and FLOYD, Circuit Judges.
Vacated and remanded by published opinion. Judge FLOYD wrote the opinion, in which Judge TRAXLER and Judge SHEDD joined.
FLOYD, Circuit Judge:
Ernest Lee Williams, Jr., was charged with attempting to enter a bank with the intent to commit a felony affecting it, and a larceny, all in violation of
I.
On January 21, 2014, Williams approached a Southern Bank building (the “Bank“) in Rocky Mount, North Carolina, while wearing gloves and covering his face in a hood. Williams entered the Bank‘s exterior doors into an anteroom, but before he could enter past the interior doors, a teller who believed she recognized Williams from a previous robbery locked both the interior and exterior doors. The teller then asked Williams through an intercom whether Williams had an account with the Bank, and Williams replied that he did, but that he had left his bank card in his car. The teller unlocked the exterior doors, and instructed Williams to use the drive-up window. Williams returned to his car, but then drove off.
The police were notified and given a description of Williams‘s vehicle. The police stopped Williams shortly thereafter, and in a show-up, Williams was identified by a Bank employee as the person who had tried to enter earlier. After being read his rights, Williams admitted to the police that—in need of money—he cased the Bank, and then wore gloves and covered part of his face. He had neither a gun nor a note with him when he tried to enter the Bank. Williams insisted that he had simply planned to tell the bank tellers to put the Bank‘s money in his bag.
On August 27, 2014, a federal grand jury in the Eastern District of North Carolina indicted Williams for violating
Williams objected to the application of U.S.S.G. § 2B3.1 to his offense. Williams contended that the indictment to which he pleaded guilty described an attempted burglary, not an attempted robbery, because it did not reference force or violence. Thus, as between the two relevant guidelines that could apply to a violation of
The probation officer, meanwhile, contended that the robbery guideline applied in this case, because it—unlike the burglary guideline—contained an enhancement accounting for the fact that Williams targeted a financial institution.
On April 8, 2015, Williams‘s sentencing hearing took place. After hearing both sides’ arguments, the district court was convinced that the robbery guideline was appropriate in this case because it addressed the targeting of financial institutions. The district court found Williams‘s imprisonment range under the robbery guideline to be 37 to 46 months, and sentenced him to a term of 38 months. This appeal followed.
II.
On appeal, Williams contends that his sentence should have been calculated using the burglary guideline, rather than the robbery guideline. We review challenges to the district court‘s guideline selection de novo. United States v. Davis, 202 F.3d 212, 218 (4th Cir. 2000). We agree with Williams that the district court‘s selection of the robbery guideline was erroneous, because only the burglary guideline applies here.
A.
The Sentencing Guidelines direct a sentencing court to “[d]etermine the offense guideline section . . . applicable to the offense of conviction.” U.S.S.G. § 1B1.2(a). At times, however, “the offense of conviction ‘appears to fall under the express terms of more than one guideline[.]‘” United States v. Boulware, 604 F.3d 832, 836 (4th Cir. 2010) (brackets omitted) (quoting United States v. Lambert, 994 F.2d 1088, 1092 (4th Cir. 1993)). In such cases, “the sentencing court must choose the guideline that is ‘most applicable’ by comparing the guideline texts with the charged misconduct, rather than the
The charge that Williams pleaded guilty to plainly describes an attempted burglary, not an attempted robbery. Williams was charged with a violation of
Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank . . . ; or
Whoever enters or attempts to enter any bank . . . , or any building used in whole or in part as a bank . . . , with intent to commit in such bank . . . , or part thereof, so used, any felony affecting such bank . . . and in violation of any statute of the United States, or any larceny—
Shall be fined under this title or imprisoned not more than twenty years, or both.
Williams was indicted for attempting to enter a bank with an intent to commit a felony and larceny therein—i.e., a bank burglary. Moreover, his indictment failed to reference “the element of ‘force and violence, or [extortion or] intimidation’ which is required for conviction of bank robbery” under
B.
In selecting the robbery guideline over the burglary guideline, the district court stressed that only the robbery guideline contained an enhancement for the targeting of financial institutions (the “Bank Enhancement“) like the one Williams targeted. The government defends this selection by citing two unpublished Fourth Circuit cases that justified the use of the robbery guideline for a
Sutton is distinguishable for similar reasons. As in Johnson, a panel of this Court in Sutton relied on the Bank Enhancement in selecting the robbery guideline over an alternative guideline (there, the burglary guideline) to sentence a defendant convicted of violating
C.
In this case, the precedent we find most instructive is this Court‘s published decision in Boulware. There, the indictment charged the defendant with making a false statement to a bankruptcy court via non-disclosure of prior bankruptcies; however, the indictment did not charge that the non-disclosure was part of a plan to defraud creditors. Boulware, 604 F.3d at 835-36. This Court reasoned that the perjury guideline should apply, rather than the fraud guideline, because the perjury guideline best fit the offense described in the indictment. Id. at 836. It so held despite the objecting party‘s observation that the fraud guideline contained a specific offense characteristic referencing bankruptcy proceedings, while the perjury guideline lacked any analogous provision. Id. This Court dismissed that observation as being “of little consequence,” reasoning that the fraud guideline was unfitting where “the gravamen of the charge was that [the defendant] interfered with the bankruptcy court‘s administration of justice, not that she defrauded any creditors.” Id.
Likewise, the robbery guideline‘s use of the Bank Enhancement is of little consequence here, because the gravamen of Williams‘s charge was that he attempted to commit a burglary, not a robbery. Simply put, where an indictment omits an element of an offense, the guideline corresponding to that offense is inapplicable,
Nonetheless, we do not consider whether the absence of a potentially relevant provision (here, the Bank Enhancement) under the correct guideline justifies a variance at sentencing. We leave that issue for the district court to address on remand in the first instance.
III.
For the foregoing reasons, we vacate Williams‘s sentence, and remand this case to the district court for resentencing under the burglary guideline.
VACATED AND REMANDED