United States v. Frank

Mar 26, 2007
06-30339
Versions:223 F. App'x 412

facts establish that probable cause existed as a matter of law. Probable cause exists when the facts and circumstances as known to the officers at the time would ‐‐warrant a prudent man [to] believe[ ] that the [Appellants] had committed or [were] committing an offense.‐‐ Martin v. Thomas, 973 F.2d 449, 453 (5th Cir.1992). It is irrelevant that the Appellants were not ultimately convicted. See Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 754 (5th Cir.2001). Because we find Appellants’ arrest supported by probable cause, we need not decide whether Appellees are entitled to qualified immunity. We affirm.

AFFIRMED.

James Thomas McManus, Camille Ann Domingue, Assistant U.S. Attorney, U.S. Attorney‘s Office, Western District of Louisiana, Lafayette, LA, for Plaintiff-Appellee.

Randal Paul McCann, Broussard & Kay, Lafayette, LA, for Defendant-Appellant.

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Having pleaded guilty, Jimmy Lee Frank challenges his sentence, including 55-years imprisonment, for: conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. §§ 371, 2; interfering with commerce by robbery, in violation of 18 U.S.C. §§ 1951(a), 2; and a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2.

Pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), post-Booker sentences are reviewed for “reasonableness“, guided by the factors stated in 18 U.S.C. § 3553(a). E.g., United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). In that regard, a district court‘s factual findings are reviewed for clear error; its interpretation and application of the Guidelines, de novo. E.g., United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005).

Frank contests his Guideline‘s § 2B3.1(b)(4)(B) offense-level enhancement, applicable if a person was “physically restrained to facilitate commission of the offense or to facilitate escape“. He claims reversible error because the victims of the robbery of a casino were not tied, bound, or locked up.

The presentence investigation report stated that Frank and his codefendants escorted a security guard and several casino employees to the casino manager‘s office at gunpoint and instructed them not to leave. Accordingly, the enhancement was applicable. See United States v. Hickman, 151 F.3d 446, 460-61 (5th Cir.1998), reinstated, in relevant part on reh‘g en banc, 179 F.3d 230, 231 (5th Cir.1999).

Frank also contends his above-the-guidelines sentence is unreasonable. “Where, as here, a district court imposes a post-Booker non-Guidelines sentence — that is, one that deviates ... above ... the relevant Guidelines sentence as opposed to departing with reference to an applicable Guidelines departure provision — we conduct our reasonableness review through an abuse-of-discretion lens, paying particular attention to the specific reasons given for deviating from the Guidelines.” United States v. Armendariz, 451 F.3d 352, 358 (5th Cir.2006).

Frank‘s sentence was properly based on the district court‘s consideration of the 18 U.S.C. § 3553(a) factors, including: the nature and circumstances of the instant offense; Frank‘s history and characteristics; the need to promote respect for the law; and the need to protect the public from Frank‘s further crimes (in the factual stipulation for his guilty plea, he admitted: to joining a conspiracy to commit armed robberies of approximately 17 truck-stop casinos; and to participating in two armed robberies of casinos). See United States v. Smith, 440 F.3d 704, 707-10 (5th Cir.2006).

AFFIRMED.

Notes

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.