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Criminal Practice – No ‘Robbery’ Sentence on ‘Burglary’ Indictment

U.S. v. Williams (Lawyers Weekly No. 001-161-16, 11 pp.) (Floyd, J.) No. 15-4217, Nov. 10, 2016; USDC at Raleigh, N.C. (Howard, J.) 4th Cir.

Holding: An unarmed defendant who tried to enter a bank after it was locked, and who admitted he planned to tell bank tellers to put money in his bag, should be sentenced under federal sentencing guidelines on burglary, not robbery, and the 4th Circuit vacates his sentence and remands for resentencing; where an indictment omits an element of an offense, the guideline corresponding to that offense does not apply, even if the alternative guideline’s provisions do not account for certain details that the indictment charges.

Planned Demand

The charge that defendant pleaded guilty to was attempted burglary under 18 U.S.C. § 2113(a), not attempted robbery. He was indicted for attempting to enter a bank with an intent to commit a felony and larceny therein – i.e., a bank burglary. His indictment failed to reference the element of “force and violence,” or extortion or intimidation, which is required for conviction of bank robbery under § 2113(a). Therefore, when one compares the applicable burglary and robbery guidelines with the language of defendant’s indictment, it is clear he should have been sentenced under the burglary guideline.

In selecting the robbery guideline over the burglary guideline, the district court stressed that only the robbery guideline contained an enhancement for the targeting of financial institutions like the one defendant targeted. The government defends this selection by citing two unpublished 4th Circuit cases that justified the use of the robbery guideline for a § 2113(a) violation on the basis of the bank enhancement. Because these two cases, U.S. v. Sutton, 401 F. App’x 845 (4th Cir. 2010), and U.S. v. Johnson, 68 F. App’x 402 (4th Cir. 2003), do not justify imposing a robbery guideline-based sentence on a defendant who only pleaded guilty to an attempted burglary, the district court’s selection was erroneous.

In this case, the precedent we find most instructive is U.S. v. Boulware, 604 F.3d 832 (4th Cir. 2010). There, the indictment charged defendant with making a false statement to a bankruptcy court via nondisclosure of prior bankruptcies; however, the indictment did not charge that the nondisclosure was part of a plan to defraud creditors. The court reasoned that the perjury guideline should apply, rather than the fraud guideline, because the perjury guideline best fit the offense described in the indictment.

Vacated and remanded.

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