United States of America v. John Michael Pevarnik

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 03-2394
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UNITED STATES OF AMERICA
v.
JOHN MICHAEL PEVARNIK,
Appellant.
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On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court Judge: The Honorable William L. Standish
(No. 02-cr-00182)
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Submitted Under Third Circuit L.A.R. 34.1(a)
December 9, 2003
Before: AM BRO, FUENTES AND CHERTOFF, Circuit Judges.
(Opinion Filed: December 23, 2003)
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OPINION OF THE COURT
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FUENTES, Circuit Judge:
Appellant John Michael Pevarnik pleaded guilty in the Federal District Court for
the W estern District of Pennsylvania to armed bank robbery, in violation of 18 U.S.C. §
2113(d), and using or carrying a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). On April 30, 2003, he was sentenced to a term
of thirty months on the bank robbery count and a consecutive term of eighty-four months
on the firearm count, as well as a five-year term of supervised release, a special
assessment of $200, and restitution in the amount of $1481.
Given that we write solely for the benefit of the parties, to whom the facts are no
doubt well known, we will only briefly summarize the relevant events here. These facts
are derived from the statement Pevarnik made to Pennsylvania State Trooper Kevin Foley
on March 17, 2002.
On M arch 16, 2002, Pevarnik’s friend and co-defendant in this case, Gregory
Allen McAdoo, informed Pevarnik that he had stolen a Chrysler Sebring automobile and
that he intended for McAdoo and Pevarnik to use the car to rob the Marion Center Bank
in Indiana County. The two traveled in the stolen car (McAdoo drove) to the bank. Upon
arrival, McAdoo parked the car near the bank, and gave Pevarnik five minutes to go
inside and ascertain how many people were working. Pevarnik claims that McAdoo told
him that if he refused to do so, McAdoo would shoot him. Pevarnik spent approximately
fifteen minutes in the bank, where he spoke to a teller and noted that four people were
present in the establishment. After Pevarnik came back to where McAdoo was waiting,

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1Defense counsel was compelled to retreat from the position that Pevarnik was forced
to participate in the offenses and concede that he “willingly participated” because the plea
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McAdoo ordered Pevarnik to sit in the driver’s seat of the stolen car to facilitate a quick
exit when McAdoo returned from the bank. McAdoo then donned a mask and, armed
with a pistol, proceeded to rob the bank. As soon as McAdoo returned, Pevarnik drove
the car about two miles during which McAdoo threw his mask out the window. They
abandoned the stolen car and picked up Pevarnik’s car, which they drove to a motel. At
the motel, McAdoo counted the stolen money, which amounted to approximately $7000.
Thereafter, based on a 911 phone call, the police learned that Pevarnik and McAdoo were
at McAdoo’s grandmother’s home. The state police proceeded to the location and
arrested both suspects. During their interview, Pevarnik told Officer Foley that he and
McAdoo had previously talked “a little” about robbing a bank, but Pevarnik did not
believe McAdoo was serious about carrying through with the idea.
After pleading guilty to the two counts listed above, Pevarnik took the position at
his sentencing hearing that his sentence should be reduced because he was a minor
participant in the armed bank robbery, under § 3B1.2(b) of the Sentencing Guidelines.
His attorney argued that Pevarnik had been effectively taken hostage by McAdoo during
the bank robbery, and that his acts did not rise to the level necessary to find him equally
culpable with his co-defendant. The District Court rejected this argument and sentenced
Pevarnik accordingly, pointing out that if McAdoo had taken Pevarnik hostage, that
occurred in the trailer, well after the robbery occurred, and stating that he was integrally
involved in the commission of the crime.1

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agreement reached with the Government required Pevarnik to accept responsibility for his
actions. See Appellant App. at 94-96 (Sentencing Transcript at 7-9).
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The sole issue in this appeal is whether the District Court erred in denying
Pevarnik’s motion for a downward departure. This Court exercises jurisdiction over the
final judgment of the District Court pursuant to 28 U.S.C. § 1291. Section 3B1.2(b) of
the Sentencing Guidelines states:
Mitigating Role
Based on the defendant’s role in the offense, decrease the offense
level as follows:
. . . .
(b) If the defendant was a minor participant in any criminal
activity, decrease by 2 levels.
U.S.S.G. § 3B1.2(b) (2002).
District courts’ factual findings as to § 3B1.2 minor role adjustments are reviewed
for clear error. United States v. Perez, 280 F.3d 318, 351 (3d Cir. 2002). As we stated in
Perez, “[a] decision is clearly erroneous if the reviewing court is left with the definite and
firm conviction based on all the evidence that the trial court made a mistake.” Id. (citing
United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)) (additional citation
omitted). We exercise plenary review where the district court’s denial of a downward
departure is based primarily on a legal interpretation of the Sentencing Guidelines. See
United States v. Brown, 250 F.3d 811, 818 (3d Cir. 2001); United States v. Isaza-Zapata,
148 F.3d 236, 237 (3d Cir. 1998).

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The minor participant section “provides a range of adjustments for a defendant
who plays a part in committing the offense that makes him substantially less culpable than
the average participant.” U.S.S.G. § 3B1.2, cmt. n.3(A). “The background commentary to
this provision indicates that its application depends on the facts of a particular case.”
Brown, 250 F.3d at 819. This Court also applies a number of other factors to the minor
participant determination, including the nature of the defendant’s relationship to the other
participant, the importance of the defendant’s actions to the success of the venture, and
the defendant’s awareness of the nature and scope of the criminal enterprise. Isaza-
Zapata, 148 F.3d at 239.
It is undisputed that Pevarnik discussed robbing a bank with McAdoo before the
fact; accompanied McAdoo to the bank; counted the employees inside the bank and spoke
with a teller in order to prepare for the robbery; drove the stolen getaway car; helped hide
the evidence of the robbery; and accompanied McAdoo to the motel and then to
McAdoo’s grandmother’s trailer. This evidence demonstrates that at each stage of the
criminal act, Pevarnik was an active, not minor, participant. Additionally, although he
claims he was threatened with force if he failed to obey McAdoo’s orders, there appear to
have been at least a few instances in which Pevarnik could have disassociated himself
with the robbery, but did not do so. For these reasons, we hold that the District Court
properly denied Pevarnik’s motion for a downward departure. Accordingly, we will
affirm the District Court’s judgment.

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TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judge

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