United States v. Brock
United States v. Brock
Opinion of the Court
Rodney Brock appeals the ten-year sentence imposed after he was found guilty of bank robbery under 18 U.S.C. § 2113(a). Brock challenges the district court’s findings that he failed to accept responsibility and that he used a firearm during the commission of the bank robbery. We affirm.
I. Background
On May 15, 2001, Brock entered the Associated Bank in Belleville, Illinois while armed with a brown-handled gun in the waistband of his pants. He walked up to the teller and handed her a note reading: “This is a bank robbery. No sudden moves. Place all 100’s, 20’s, 50’s, on the counter and no dye packs.” After reading the note, the bank teller, Ms. Marshaun Johnson, placed the money on the counter as directed. While she was emptying the cash register drawer, Johnson observed Brock unzip his jacket to the waist and she saw what she believed to be a brown-handled gun tucked by his stomach area. When she finished handing over $7,945.00, Brock picked up the cash and exited the bank.
Ten days later, on May 25, 2001, Brock was indicted for bank robbery under 18 U.S.C. § 2113(a). He appeared in court with his attorney on June 8, 2001 and entered a plea of guilty. At that time, the trial judge questioned Brock about his knowledge of and participation in the crime, the potential maximum sentence for the offense, as well as the voluntariness of his plea. After questioning the defendant, fully advising him, and making the appropriate findings pursuant to Fed. Rules Crim. Proc. Rule 11, he accepted the plea and referred the matter to the probation department for a pre-sentence investigation report (PSR). In a report dated August 16, 2001, the probation officer stated that he believed that, “based upon the statement by the victim bank teller, it appears that the defendant possessed a firearm during the commission of this offense.” He also concluded that, “based upon the defendant’s denial that he possessed a weapon during the robbery, which is relevant conduct, it does not appear that a reduction for acceptance of responsibility is appropriate at this time.”
The PSR was received by all parties and filed with the court, and on August 20, 2001 the government, after reading the report, filed a letter with the court stating that it had no objections. On August 28, 2001 the defendant filed pro se objections to the PSR, and his attorney also filed objections on September 12, 2001 and on September 17, 2001. Both the defendant and counsel argued that the possession of a firearm should not have been used as a sentencing factor. They challenged the reliability of Ms. Johnson’s trial testimony regarding her observation of the brown-handled gun in his waistband. Defense counsel also asserted that Brock did in fact accept responsibility for the offense, and that it would violate Brock’s Fifth and Sixth Amendment rights to due process to increase his sentence with a firearm enhancement pursuant to U.S.S.G. 2B3.1(b)(2)(C). Counsel relied on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), arguing that the possession of the firearm should have been charged in the indictment and proven as an element of the offense beyond a reasonable doubt.
At the November 5, 2001 sentencing hearing, the judge heard the testimony of several witnesses summoned by both the defense and the prosecution. Brock brought three witnesses to testify that although they were personal friends of his, they never discussed a firearm with him or saw one in his possession. However, the
As to the defendant’s request for a two-level downward departure for accepting responsibility, the court stated that it would be illogical to give the defendant credit for his guilty plea because Brock was less than truthful when recounting his activity; i.e., that he said he was not armed at the time of the robbery. The judge refused to find that Brock accepted responsibility, in light of the fact that he denied the firearm to the FBI, the probation officer, and the court itself. Considering this conduct, the district court also imposed a two-level enhancement for the obstruction of justice.
II.
A. Issues
Brock argues that his Fifth and Sixth Amendment rights were violated because the trial court treated his possession of a firearm during the bank robbery as relevant conduct. He alleges that, under Apprendi, a sentencing factor that exposes a defendant to a sentence potentially higher than the maximum for the convicted offense must be both charged in the indictment and proved beyond a reasonable doubt. He asks that we remand this case for re-sentencing and the court from allowing the inclusion of the firearm enhancement.
B. Discussion
We are not persuaded that Apprendi is applicable in this case. Although Apprendi stands for the general proposition that facts which increase the penalty for a crime must be charged in the indictment and established beyond a reasonable doubt, this rule does not apply to situations, like this one, where the actual sentence imposed is less severe than the statutory maximum authorized for the convicting offense. See Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000). Thus, the case law recites that, “Apprendi does not affect the application of the relevant-conduct rules under the Sentencing Guidelines to sentences that fall within a statutory cap.” Talbott v. Indiana, 226 F.3d 866, 869 (7th Cir. 2000). See also United States v. Williams, 238 F.3d 871, 877 (7th Cir. 2001); See also United States v. Watts, 256 F.3d 630, 635 (7th Cir. 2001).
Brock was sentenced to a prison term of ten years pursuant to 18 U.S.C. § 2113, which authorizes up to twenty years imprisonment for bank robbery and twenty-five years for armed bank robbery. Even though the court increased Brock’s offense level by five because of the firearm, the final term was still well below the statutory maximum sentence. Therefore, Apprendi is beside the point.
In so making this ruling we wish to make clear that we agree with the trial judge’s credibility assessment of the bank teller, Ms. Johnson’s, testimony regarding Brock’s possession of a firearm. As this court on previous occasions has stated, “a sentencing judge’s credibility determinations are entitled to great deference on review, and we will defer to them unless they are without support in the record.” U.S. v. Carter, 999 F.2d 182,187. See also U.S. v. Anaya, 32 F.3d 308, 314 (7th Cir. 1994). As we pointed out previously, the trial judge found Ms. Johnson to be not only very believable, but also forthright, clear, and concise in her description of the events of May 15, 2001. After hearing all of the testimony, the trial court also had sufficient reason to view Brock’s testimony with skepticism and as being nothing but self-serving in nature. Therefore, the trial judge’s finding that Brock carried a weapon during the bank robbery will not be disturbed.
While the defendant did enter a timely guilty plea, the district court correctly denied Brock a downward departure for accepting responsibility. “The district court’s acceptance of responsibility determination is a factual finding which we review for clear error.” United States v. Fiore, 178 F.3d 917, 925 (7th Cir. 1999). Although the defense cites cases involving extraordinary circumstances in which obstruction does not necessarily preclude the later acceptance of responsibility, this case does not involve any such circumstances. See United States v. Bean, 18 F.3d 1367 (7th Cir. 1994) (Holding that the defendant repaid the bank that he robbed and could thus receive a level reduction despite the fact that he falsely denied guilt); see also United States v. Chevalier, 1 F.3d 581 (7th Cir. 1993) (Finding that the defendant’s consolidated loan payments were evidence that he had accepted responsibility for bank fraud, despite the fact that he pleaded guilty only after the trial had finished). There is no evidence in the record that the defendant tried to pay restitution to the
C. Conclusion
The judgment of the district court is AFFIRMED.
Reference
- Full Case Name
- United States v. Rodney D. BROCK
- Status
- Published