Submitted: April 3, 2017
from United States District Court for the Western District of
Missouri - Kansas City
WOLLMAN, LOKEN, and RILEY, Circuit Judges.
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 procedurally erred and the sentence is
substantively unreasonable. Having appellate jurisdiction
under 28 U.S.C. § 1291, we affirm.
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.
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.
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.
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.
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.
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."
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."