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United States v. White

United States Court of Appeals, Eighth Circuit

July 21, 2017

United States of America Plaintiff- Appellee
Frank White, also known as Frank L. White Defendant-Appellant

          Submitted: April 3, 2017

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before WOLLMAN, LOKEN, and RILEY, Circuit Judges.

          RILEY, Circuit Judge.

         Frank White pled guilty to bank robbery in violation of 18 U.S.C. § 2113(a) and was subsequently sentenced to 120 months in prison. He now appeals that sentence, arguing the district court[1] procedurally erred and the sentence is substantively unreasonable. Having appellate jurisdiction under 28 U.S.C. § 1291, we affirm.

         I. BACKGROUND

         On May 16, 2015, White entered a Kansas City, Missouri, bank and approached a teller. White attempted to unfold a note but was unable to, and told the teller: "Give me all the money in the drawer. Give me everything." White also instructed the teller not to press any buttons. The teller, feeling threatened, placed a total of $1, 971, including thirty marked bills, in a bag. The teller also included a tracking device with the money.

         White fled the bank and entered a nearby house by breaking a rear door window. A resident was inside the house, and White told the resident he had a gun and demanded the resident give him the keys to his car. The resident refused to do so, and White left the home without taking any property.

         Meanwhile, police officers had been notified of a bank alarm and used the bank's tracking device to determine White's whereabouts. The officers saw an individual, White, matching the robber's description walking down the street, and White took off running when the unmarked police car approached him. After a brief foot chase and a struggle, White was arrested. The police discovered White was carrying most of the money taken from the bank, the marked bills, the tracking device, a note reading "All hundreds I gotta gun, be quick so nobody gets hurt, Gun, " and a substance that appeared to be marijuana.

         White pled guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). The presentence investigation report (PSR) calculated White's base offense level as 20 and recommended applying a two-level enhancement for taking property of a financial institution (United States Sentencing Guidelines or U.S.S.G. § 2B3.1(b)(1)), a two-level enhancement because the offense involved carjacking (id. § 2B3.1(b)(5)), and a three-level reduction for acceptance of responsibility (id. § 3E1.1(a), (b)), resulting in a total offense level of 21. With a criminal history category of VI, the PSR calculated White's advisory range under the Guidelines as 77 to 96 months imprisonment.

         White objected to the carjacking enhancement because "[t]here is insufficient evidence that there was a motor vehicle to be taken from the person or presence of the victim." See id. § 2B3.1(b)(5); id. § 2B3.1 n.1 ("'Carjacking' means the taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation."). At White's sentencing hearing, the government admitted it chose not to have the carjacking victim testify as to the presence of a vehicle because it "would be kind of a waste of [the] Court's time and resources, and the time of that individual as well, because . . . [w]hether or not this technically comes within the definition of carjacking . . . [is] fairly irrelevant." The district court recognized the objection was "a good objection, " but stated "running into . . . someone else's house uninvited after a bank robbery, yelling 'Give me your car, I got a gun, '" satisfies the requirements of attempted carjacking.

         The district court adopted the PSR's proposed advisory Guidelines range of 77 to 96 months imprisonment. Noting it was "required to consider many factors under a statute called 18 U.S.C. 3553(a), " the district court outlined the factors it found relevant in setting White's sentence. Particularly, the district court was concerned that "a lot of bad things happen once people start this chain of events to rob a bank, " and the district court noted "[i]t's a miracle no one was shot, " including White. The district court also highlighted White had "basically commit[ted] another felony there by breaking into the home to steal a car." While the district court recognized there was "good" in White's history and characteristics, particularly that he took responsibility for his actions and was honest throughout the court process, the district court noted White "created a danger to a lot of people in [his] criminal conduct."

          The district court announced it was varying upward from the advisory Guidelines range because of White's "criminal history and the need to protect the public, " and sentenced White to 120 months imprisonment followed by three years of supervised release. The government then asked the district court: "Just for the record, . . . is the Court['s] sentence based on the [section] 3553 factors, regardless what the [G]uideline calculations were?" The district court confirmed, "[e]ven if [it] would have sustained [White's] objection, . . . [the district court] would still come out the same way based on the strong 3553(a) factors."

         II.DISCUS ...

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