United States of America v. Toby Dean Bequette

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0414n.06
No. 13-5394
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TOBY DEAN BEQUETTE,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
TENNESSEE
BEFORE: SILER, GILMAN, and GIBBONS, Circuit Judges.
PER CURIAM. Toby Dean Bequette, a federal prisoner, appeals through counsel the 57-
month sentence imposed following his guilty plea to a charge of being a felon in possession of a
firearm.
Bequette was charged with this offense after he pawned a stolen firearm. He entered a
guilty plea. The presentence report calculated his guidelines sentencing range at 57 to 71 months
of imprisonment. Bequette objected that his 1994 Florida conviction of robbery should not be
counted as a crime of violence under USSG §§ 4B1.2 and 2K2.1(a)(3). Without a previous
conviction of a crime of violence, the guidelines range would have been 30 to 37 months of
imprisonment. Bequette argued that because the Florida statute defined robbery as accomplished
by the use of force, violence, assault, or putting in fear, he may have committed a robbery by
putting in fear, which would not necessarily be a crime of violence. The parties presented
argument on this issue at the sentencing hearing. The district court concluded that the Florida

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United States v. Bequette
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robbery conviction was a crime of violence and sentenced Bequette at the bottom of the resulting
guidelines range. Bequette reasserts his argument on appeal.
A determination that a prior offense is a crime of violence is reviewed de novo. United
States v. Evans, 699 F.3d 858, 862 (6th Cir. 2012). The Eleventh Circuit, which encompasses
Florida, has persuasively held that robbery as defined in the Florida statute is a crime of violence
and a violent felony. United States v. Lockley, 632 F.3d 1238, 1240-45 (11th Cir. 2011); United
States v. Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002). We have likewise determined that
robbery under a Tennessee statute, which also includes putting in fear as an element, is
categorically a violent felony. United States v. Mitchell, 743 F.3d 1054, 1059-60 (6th Cir. 2014).
See also United States v. Taylor, 696 F.3d 628, 630-33 (6th Cir. 2012) (upholding determination
that larceny under a similar Michigan statute is violent felony). Bequette also argues that the
Florida robbery statute is overbroad, such that it cannot be a crime of violence, citing Descamps
v. United States, 133 S. Ct. 2276 (2013). However, in Mitchell, 743 F.3d at 1066, we rejected a
similar argument, finding that the accomplishment of robbery by putting in fear was not broader
than the generic definition of robbery.
Accordingly, the district court’s judgment is affirmed.

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