*1 overdue installment the entire on interest loss, April date from
payment judgment. the date of
to March
Therefore, Becker is entitled to William year, percent per interest at
prejudgment rate, agreed upon contractually on the $5 enti- He also is installment.
million overdue percent prejudgment interest
tled outstand- note’s accelerated promissory $15,849,327.40. pre- Total principal of
ing percent at 10 calculated
judgment interest equal April to March
from Thus, judg- final $4,032,772.48. the total $24,882,099.84, which consists of
ment $20,849,327.40and damages of total
principal $4,032,772.48. interest of
prejudgment
Accordingly, we affirm the district court’s Holding against Becker on its
judgment
claims, damage the court’s final but reverse for an Becker remand
award to William
adjustment damages, in accordance with opinion. part;
AFFIRMED REVERSED
part; and REMANDED. America,
UNITED STATES
Plaintiff-Appellee, MALONE, Jr., Willie
John
Defendant-Appellant.
No. 94-6525. Appeals,
United States Court
Eleventh Circuit.
March *2 record,
that on this the evidence discloses specifically targeted carjack- that Malone ing victim professional based on the latter’s legal obligations a cab as driver dis- pick up a fare. The cab driver in this case was thus a victim particularly susceptible to criminal conduct. therefore affirm imposed the sentence Malone the district court.
I.
16,
At or
1993,
around noon of November
Mobile, AL,
Byrd,
appellant.
James M.
for
Malone,
Willie
Osbey
John
Jr. and Marvin
Company
called the Yellow Cab
and asked
Fernandez,
Attorney’s Office,
Maria
U.S.
pick
for a cab to
inup
them
the Hart Street
Mobile, AL,
appellee.
for
Mobile, Alabama,
area of
neigh-
residential
populated by
people
borhood
few
and which
busy
Canfield,
had no
streets. Philemon
driver, responded
taxi
to the call. Canfield
City
testified that under
Mobile ordi-
TJOFLAT,
DYER,
Judge,
Before
Chief
nance, he
required
every
*,
Judge,
Circuit
and GARTH
Senior
Senior
given by
call
dispatcher
pick up
and to
Judge.
Circuit
every passenger,
passenger
unless the
is “so
GARTH,
Judge:
up”
[he
Senior Circuit
drunk
can’t stand
she]
or is
“very argumentative.”
(Transcript of Sen-
Malone, Jr.,
Defendant John Willie
who
tencing, May
at
Malone seated
defendants,
one of two
entered a
condi-
seat,
himself in the
Osbey
front
sat in
gufity
plea
tional
count of a
each
three-
the back seat.
indictment,
charging
conspir-
count
with
commit,
acy to
crime of
substantive
cab, Osbey pulled
Once
out
.38
automobile,
armed
of an
and use of a
revolver,
against
caliber
held it
Canfield’s
during
firearm
a crime of violence. The
neck, and cocked the hammer. Malone
court
district
sentenced Malone to a total of
ripped out
pre-
the two radios
the cab to
incarceration,
joint
97 months
and several
communicating
any-
Canfield from
vent
$554.00,
special
restitution of
and a
assess-
Canfield,
one. The defendants forced
appeal,
ment of
On
Malone contests
$150.
gunpoint,
to drive
several
around
blocks.
imposition
the district court’s
of a two-level
around,
driving
While
Malone
victim”
enhancement to his sen-
searched Canfield and the
and took all of
tence. See
3A1.1.1
U.S.S.G.
money. They finally stopped
Canfield’s
jurisdiction
We have
pursuant
away
pick-
to 18 U.S.C.
about three blocks
from the initial
3742(b)
and 28
up
U.S.C.
We hold
location. Malone
told Canfield to
then
*
Garth,
Martin,
(1995);
Honorable Leonard I.
Senior U.S. Circuit
L.Ed.2d 144
States v.
United
Circuit,
534,
Cir.1994),
denied, -
(11th
Judge
sitting by designa-
for the Third
F.3d
cert.
-,
U.S.
115 S.Ct.
the cab. adjusted upwardly offense Malone’s level was indict- Malone December On pursuant two levels (1) armed rob- conspiracy commit ed for *3 objected to the “vulnerable victim” Malone 18 in violation of bery of an automobile sentence enhancement. 371, (2) robbery of an auto- § armed U.S.C. 1, 1994, 2119, By Judgment the § entered June of 18 and in violation U.S.C. mobile (3) to 37 district court sentenced Malone months during a crime of vio- of a firearm use 924(c). concurrently; 1 2 to run and for Counts and 18 lence in violation of U.S.C. 3, consecutively, run 60 months for Count to 1994, 9, February Malone moved On for a total of of incarceration. 97 months Three, Two and on the dismiss Counts imposed joint and The court also several lesser included ground that were each special of a total as- restitution $554.00 charge of Count One that offenses of sessment $150. subject him to all three counts would with in for the same offense multiple punishments II. Fifth Amendment Double
violation of the court Jeopardy district denied Clause. A. of order Febru- the motion endorsement ary 10,1994. argues Malone the district 16, 1994, enhancing February Malone entered court his sentence under
On
erred
counts, re-
plea
guilty
of
to all
ground
conditional
3A1.1 on the
the
ease,
serving
right
appeal the district court’s
in this
being
his
a cab
carjackings.
to dismiss Counts Two
denial of
motion
“
Three of the indictment.
of
application
‘The district court’s
fact,
presents
question
of law
mixed
April
the district
By
of
Order
”
novo.’
v.
which we review de
United States
found,
Presentencing
the
In-
court
based
(11th Cir.1995)
Thomas,
62 F.3d
1344
vestigation Report, that Canfield
an un-
Davis,
(quoting United States v.
967 F.2d
the
usually
victim because
defen-
(11th Cir.1992),
rehearing
523
on other
cab, knowing
that the
had called for
dants
(11th Cir.1994)).
grounds,
B.
vulnerability
present
which
only
some
Section 3A1.1 of the
type
Otherwise,
victims of that
of crime.
upward adjustment
for a two-level
likely
defendant’s choice of a
victim does not
to the defendant’s offense level:
show the extra measure of
depravity
criminal
If the defendant knew or should have
which
3A1.1 intends to
severely pun-
*4
known that a victim of the offense was
”) (quoting
Moree,
ish.’
United States v.
unusually
age, physical
vulnerable due to
(5th
Cir.1990)),
F.2d
rehearing on
condition,
or mental
or that a victim was
(11th
grounds,
Cir.1994).
other
ble to the crime at potential issue than other In Long, 935 F.2d we held that mem- victims of that crime. United States v. Mor not, family by bers of a black their race rill, (11th Cir.1993) (en alone, “automatically” “vulnerable victims” of banc) (“Morrill (II)”); Long, 935 F.2d at cross-burning. Similarly, Id. at 1209. Morrill we held that case,
In such a the defendant is deemed bank tellers as a class were not “automatical- culpable more ly” robberies, than he by otherwise would be “vulnerable victims” of bank properly Id. enhanced Malone’s sentence positions as bank tellers. their virtue of however, holding, cau- so we In that he at 1138. 3A1.1. Malone testified tioned: company Osbey had called cab say that bank not to tellers This is driver to come to had wanted 'cab may be cases individual never them, robbing the with the intent of susceptible or otherwise vulnerable (Transcript Sentencing Hearing, driver. ap- robbery. Enhancement a bank June Malone testified that par- 3A1.1 when a under section propriate having from calling for a cab saved them possesses unique char- ticular teller-victim find a Id. As out and victim. him or which make her acteristics obligated both Canfield susceptible city a cab driver and a Mobile functions as robbery victims thus ordinary bank dispatcher’s or- ordinance to particular robber more cul- bank make occasion, doing ders. so Canfield perpetrator. ordinary pable than obliged to drive to the rather deserted Seg- See also United States Id. at 1138.3 Street, neighborhood of Hart and then admit ien, 440-41 (Malone strangers Osbey) to his cab. two resentencing of bank (remanding case for not, not, and do address here the need (II) instructing light of robber in Morrill *5 drivers, by question all “fact-specific” of whether cab virtue court to make a determi- trial victim” en- vocation, of whether “vulnerable nation are classed as “vul- their to be applied). But see United States hancement victims,” for purposes nerable sentence Solemn, 3A1.1, § they if are enhancement under car- baby a (holding a was that six-month-old However, jacked. we are satisfied a that kidnapping within the victim” to appropri- “vulnerable victim” enhancement 3A1.1, though the district meaning of even particular aspects ate the of this case. that mental and court found the defendant’s Here, targeted specifically the defendants ability per- clouded his to emotional condition Canfield, knowing driver such as that his baby’s vulnerability, and peculiar the ceive obligations dispatched as a cab driver made harmed), baby not though the was even carjackings more vulnerable to- oth- — S.Ct. er of cars. drivers L.Ed.2d Enhancing a defendant’s sentence persuaded We are that this case is distin- membership in solely on the victim’s based (II), guishable from in which this Morrill arguably “vulnerable” class does not com court held that bank as a class tellers are 3A1.1, port purposes the per se “vulnerable victims” under 3A1.1. We adjustment “focuses the “vulnerable victim” (II) “[bjank stated in Morrill that because chiefly the of the defendant” and conduct typical robberies; are of bank tellers applied only “the should be where defendant many, perpe- if not most bank are robberies per selects the victim” due victim’s against bank Id. at trated tellers.” 1138. Long, vulnerability to the offense. ceived (II), Thus, in Morrill concluded that we the at 1210. Guidelines, Sentencing setting the base
III. robberies, already for bank had offense level culpability taken into account the bank particular present facts of the to that a vis bank us conclude the district robbers vis tellers.4 case lead Morrill, unusually earlier in United States v. teller is not an 3. We had held bank (11th Cir.1992) ("Morrill (I) ”), solely by position F.2d 386 virtue of the in a teller’s bank.” tellers as class were “vulnerable victims” bank robbery meaning within the of 3A1.1. to bank Sentencing 2B3.1 of Section the Guidelines Thereafter, Court, Supreme the on remand from robbery, a base offense level of 30 for not, bank tellers as a we held en banc that 2B3.1(a), and an 2 level additional increase if class, "vulnerable victims” under property "the financial institution ... was taken, taking property sentencing or if the of such was an Subsequent to the of the defendant object commentary the offense.” in Morrill to was 3A1.1 2B3.1(b)(1)(A). provide explicitly “[A] amended in 1992 to robbers, view, In to bank who must this is not contrast evidence that the defendants inevitably carry targeted victimize bank tellers out Canfield as their victim. crime, carjackers any can victimize
their 3A1.1 Sentencing Section of the However, a vehicle. driver of few drivers provides for enhancement of the offense level obligation stop have an even roll down “[i]f defendant knew or should have stranger, for a alone allow their windows let known ... that a victim was ... strangers their Dis- enter vehicles. susceptible to the criminal conduct. U.S.S.G. drivers, contrast, patched obligat- cab are added). (emphasis 3A1.1 In determining very calling ed nature of their to drive whether to enhance a sentence for a “vulner- dangerous pick-up to unfamiliar and often victim,” able the focus is on the defendant’s locations, cabs, permit strangers into their conduct. U.S. v. and drive them to their destinations. (11th Cir.1991). No evidence in the record setting carjackers, the base offense level for suggests the defendants knew or should have Guidelines do not contem- cab, known that if called for a culpability plate the added of a defendant dispatched obligated by city driver was ordi- dispatched who chooses to cab driv- nance to to the call. It is unreason- er rather than another driver.5 able to infer testimony from Malone’s the decision dispatched to rob a one, driver present In a case such as the was motivated knowledge the defendants’ carjackers specifically targeted have a dis- of the knowledge ordinance. Such would be knowing the cab necessary, in my opinion, prove that the unique obligation driver had the to a drive targeted defendants cab driver pick-up carjackers’ point of the choice and because he particularly susceptible cab, then let them into his the cabdriver (“Section carjacking. id. See in- especially vulnerable to and to *6 punishment tended to enhance the for of- earjacker, carjacking. A targeting so his fenses where the selects the victim, culpable carjack- is more than other defendant perceived due to the victim’s susceptibility to ers and warrants sentence enhancement offense.”) (emphasis original). At under U.S.S.G. 3A1.1. most, testimony Malone’s shows the defen- convenience, dants called for a cab out of IV. any due to belief that the driver of a dis- reasons, foregoing For the we will affirm patched cab made an easier for car- the sentence of the district court. jacking any than other driver. majority per has created a se class of DYER, Judge, dissenting: Senior Circuit consisting vulnerable victims under majority holds “that a dispatched ‘vulnerable vic- of all legal cab drivers who have a appropriate tim’ duty pick up enhancement under the a fare. Creation of this class case,” particular aspects reasoning of this results sentence enhancement for all de- “[hjere, specifically the defendants tar- fendants who select these individuals as their geted Canfield, victim, knowing a driver such as precluding application thus of 3A1.1 obligations dispatched as a case-by-case cab driver on a basis. Id. Just as bank carjackings made him more automatically vulnerable to tellers are not vulnerable vic- than majority other drivers of ears.” The positions tims virtue of their as bank upon testimony tellers, Morrill, relies Malone’s that he and United v. States (11th Cir.1993) (en Osbey company banc), “called the cab because dis- them, had wanted a cab driver to automatically come to cab drivers should not driver,” robbing with the intent pro- the cab be vulnerable victims virtue of their calling and “that legal obligation pick up cab saved them from fessional or a fare. having my say dispatched out and find a victim.” In This not to cab drivers carjacking.” Section 2B3.1 of the "the offense involved robbery, 2B3.1(b)(1)(B). a base offense level of 30 for 2B3.1(a), and an additional 2 level if increase susceptible never be
can carjacking.
otherwise a defendant selects example,
For where he knows the because
dispatched cab driver fare, or cannot refuse
driver specific driver requests a
defendant him or unique make characteristics carjacking than the
her more driver, and thus
ordinary dispatched cab culpable
make the defendant carjacker,
ordinary enhancement would be
appropriate. See id. short, nothing in I these circum- see indicating that
stances “unusually vulnerable victim.” was an driver comment, (n. 1). 3A1.1, I
See U.S.S.G. the two-level therefore reverse .en-
would
hancement JOINER, Joiner, Karen P. K.
Robert
Plaintiffs-Appellants, COMPANY, A ELECTRIC
GENERAL *7 Westinghouse Corporation;
New York Pennsylvania Corporation, A
Electric Company,
Corporation; A De- Monsanto Defendants-Appel- Corporation,
laware
lees. 94-9131.
No. Appeals,
United States Court Circuit.
Eleventh 27, 1996.
March