USA v. James Zackary, III

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 31, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-13552
Non-Argument Calendar
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D.C. Docket No. 3:09-cr-00280-TJC-JRK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ZACKARY, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 31, 2011)
Before EDMONDSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:

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James Zackary, III, appeals his 151-month sentence for bank robbery, 18
U.S.C. § 2113(a). On appeal, Zackary argues that the district court erred by
applying a two-level sentencing enhancement under U.S.S.G. § 2B3.1(b)(2)(F) for
making a threat of death. He also contends that his sentence is substantively
unreasonable, particularly in light of the fact that his codefendant, Frederick
Lightfoot, only received a 43-month sentence. For the reasons stated below, we
affirm.
I.
Zackary and Lightfoot pled guilty to one count of bank robbery, in violation
of 18 U.S.C. § 2113(a). According to the presentence investigation report (“PSI”),
on June 3, 2009, Lightfoot and Zackary arrived at a Bank of America branch on
San Marco Boulevard in Jacksonville, Florida. Lightfoot entered the bank first,
spoke with one of the tellers about opening an account, and then left the bank.
One hour later, Zackary entered the bank and gave a note to one of tellers that
read, “I have a gun.” Zackary placed a white trash bag and yellow tie straps on the
counter, and instructed the teller to provide him with $50 and $100 bills. Zackary
told the teller that she was making him mad and made a motion toward his
waistband as though he were reaching for a gun. The bank teller gave Zackary
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$3,005 in currency. Zackary then fled the bank and got into a car being driven by
Lightfoot.
The PSI included the following information concerning Zackary’s criminal
history. In October 2003, Zackary robbed a grocery store in Dayton, Ohio.
During the robbery, Zackary threatened to shoot the store owner. He fled the
scene with approximately $150 in currency. In January 2004, Zackary and a
codefendant robbed a wine store in Montgomery County, Ohio. Zackary
brandished a semi-automatic firearm, threatened multiple employees, and stole
$1,471 in cash. After he was apprehended, Zackary pled guilty to two counts of
aggravated robbery, and received concurrent five-year sentences. He was released
from state custody on May 2, 2009, one month before he committed the present
offense.
The PSI determined that Zackary had a base offense level of 20 under
U.S.S.G. § 2B3.1(a). The PSI enhanced Zackary’s base offense level by two
because he had taken the property of a financial institution. The PSI also applied a
two-level enhancement under U.S.S.G. § 2B3.1(b)(2)(F) because Zackary had
made a threat of death in connection with the robbery. Specifically, the PSI noted
that Zackary had passed a note to the teller stating, “I have a gun,” and made a
motion towards his waistband as though he were reaching for a gun. Zackary
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received a 3-level reduction for acceptance of responsibility, giving him a total
offense level of 21. Zackary had a criminal history category of III, and thus his
guideline range was 46 to 57 months’ imprisonment. Zackary objected to the
PSI’s imposition of a threat-of-death enhancement.
The district court held separate sentencing hearings for Lightfoot and
Zackary. At Lightfoot’s sentencing hearing, the government moved for a
one-level downward departure based on Lightfoot’s substantial assistance. After
the district court granted the motion, Lightfoot had a base offense level of 18, a
criminal history category of V, and a guideline range of 51 to 63 months’
imprisonment.
With respect to the 18 U.S.C. § 3553(a) factors, Lightfoot’s defense counsel
explained that Lightfoot had serious mental health issues as a result of his troubled
upbringing. At the time of the robbery, Lightfoot was suffering from depression
and schizophrenia. He was experiencing problems in personal life, and recently
had been laid off from his job as a construction worker. Lightfoot’s counsel
explained that Zackary came up with the idea to rob the bank, and that Lightfoot’s
role was limited to casing out the bank and waiting outside in the car while the
robbery was occurring. Lightfoot’s counsel requested a sentence of 24 months.
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In response, the government acknowledged that Lightfoot played a lesser
role in the offense and that Lightfoot’s personal history was a tragic one.
Nevertheless, the government contended that a 54-month sentence was needed to
reflect Lightfoot’s serious criminal history and to deter him from committing
future crimes. The government informed the court that it would be requesting a
significantly longer sentence in Zackary’s case.
The district court observed that troubled upbringing and mental health
issues had a profound impact on his behavior. The court noted that the offense of
conviction, bank robbery, was a serious one, but the court also recognized that
Lightfoot played a lesser role in the robbery than Zackary. The district court
sentenced Lightfoot to a term of 43 months’ imprisonment.
At Zackary’s sentencing hearing, the district court began by considering
Zackary’s objection to the two-level enhancement for making a threat of death.
The bank teller, Patricia Tharpe, testified that Zackary passed her a note that read
“I had a gun,” and demanded that she give him $50 and $100 bills. When she
responded that she did not have bills in those denominations, Zackary told her that
she was making him mad, and he made a movement towards his waistband as
though he were reaching for a gun.
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Tharpe explained that the robbery had a significant effect on her work
performance. For several months, she only could work at the drive-up window
because she could not cope with standing at the teller counter and interacting with
customers. She became “unnerved” whenever a customer would walk into the
bank wearing a bulky coat because she knew that robbers sometimes hide weapons
in their coats. After hearing Tharpe’s testimony, the district court viewed
surveillance videos of the movement that Zackary had made towards his
waistband.
The district court credited Tharpe’s testimony that Zackary’s note stated, “I
had a gun.” The court also believed that Zackary was simulating an effort to
produce a firearm when he reached back toward his waistband. The court
observed that a threat-of-death enhancement is appropriate in a case where a
defendant states that he has a firearm. Accordingly, the district court overruled
Zackary’s objection to the two-level enhancement for making a threat of death.
The district court then heard arguments concerning the § 3553(a) factors.
The government argued that the district court should impose a substantial upward
variance based on the seriousness of the offense and Zackary’s prior history of
committing robberies. In response, Zackary’s defense counsel argued that a
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sentence within the guideline range would adequately reflect Zackary’s criminal
history.
The district court acknowledged that it had considered the § 3553(a) factors.
With respect to the nature and circumstances of the offense, the court observed
that this case involved a “fairly brazen” bank robbery. The court noted that
Zackary attempted to convince the bank teller that he did have a weapon and put
her in fear for her life. Concerning Zackary’s personal history and characteristics,
the court observed that Zackary appeared to be an articulate and intelligent man
and that his family described him as a good person and a good father. However,
the court noted that Zackary’s criminal history painted a markedly different
picture. The court pointed out that Zackary had committed two previous
robberies, both of which had involved threats and at least one of which had
involved a firearm. The court also observed that Zackary’s previous five-year
term of imprisonment had failed to deter him from committing robberies, and that
he committed the present robbery just one month after his release from custody. In
light of all these considerations, the court agreed with the government that a
substantial variance from the guideline range was warranted. Accordingly, the
district court sentenced Zackary to a term of 151 months’ imprisonment.
II.
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“We review a district court’s application and interpretation of the
sentencing guidelines de novo.” United States v. Murphy, 306 F.3d 1087, 1089
(11th Cir. 2002). Under the prior panel precedent rule, “a prior panel’s holding is
binding on all subsequent panels unless and until it is overruled or undermined to
the point of abrogation by the Supreme Court or by this court sitting en banc.”
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).
The guideline applicable to robbery offenses provides for a two-level
enhancement if the defendant made a threat of death during the course of the
robbery. U.S.S.G. § 2B3.1(b)(2)(F). The guideline commentary explains that the
enhancement can be applied even if the threat is not stated expressly. Id.,
comment. (n.6). The test is whether “the offender(s) engaged in conduct that
would instill in a reasonable person, who is a victim of the offense, a fear of
death.” Id. In Murphy, the defendant passed a note to a bank teller that stated,
“You have ten seconds to hand me all the money in your top drawer. I have a gun.
Give me the note back now.” 306 F.3d at 1089. We upheld the district court’s
application of a threat-of-death enhancement because the note that Murphy passed
to the bank teller would put a reasonable person in fear of death. Id.
Although Zackary suggests that Murphy should be overruled, we are bound
to follow that decision under our prior panel precedent rule. See Archer, 531 F.3d
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at 1352. The holding of Murphy controls this case. The district court found that
Zackary passed the bank teller a note that stated, “I had a gun,” and that Zackary
also made a movement towards his waistband as though he were reaching for a
gun. Because Zackary’s actions would put a reasonable person in fear for his or
her life, the district court appropriately applied a threat-of-death enhancement.
See Murphy, 306 F.3d at 1089.
III.
We review a sentence imposed by a district court for reasonableness, using
an abuse-of-discretion standard. United States v. Livesay, 587 F.3d 1274, 1278
(11th Cir. 2009). The abuse-of-discretion standard “allows a range of choice for
the district court, so long as that choice does not constitute a clear error of
judgment.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc)
(quotation omitted), petition for cert. filed, (U.S. Nov. 24, 2010) (No. 10-727).
We follow a two-step process in reviewing a sentence. First, we must ensure that
the district court did not commit a significant procedural error. Gall v. United
States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). If the district
court’s sentencing decision is procedurally sound, we must then determine
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whether the sentence is substantively reasonable in light of the 18 U.S.C.
§ 3553(a) factors. Id.
We will not reverse a sentence as substantively unreasonable unless we are
“left with the definite and firm conviction that the district court committed a clear
error of judgment in weighing the § 3553(a) factors by arriving at a sentence that
lies outside the range of reasonable sentences dictated by the facts of the case.”
Irey, 612 F.3d at 1190 (quotation omitted). The party challenging the sentence has
the burden of showing that it is unreasonable in light of the record and the
§ 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). In
determining whether a variance from the guideline range is reasonable, we must
examine whether “the justification for the variance [is] ‘sufficiently compelling to
support the degree of the variance.’” Irey, 612 F.3d at 1186-87 (quoting Gall, 552
U.S. at 50, 128 S.Ct. at 597). The § 3553(a) factors include: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant;
(2) the need to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (3) the need for deterrence;
(4) the need to protect the public; (5) the need to provide the defendant with
needed educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the sentencing guideline range; (8) pertinent policy
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statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18
U.S.C. § 3553(a).
A sentence can be substantively unreasonable if it fails to reflect “the need
to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct.” See 18 U.S.C. § 3553(a)(6). To
establish that a sentencing disparity exists, the defendant must show that he is
similarly situated to other defendants who have received lower sentences. See
United States v. Docampo, 573 F.3d 1091, 1101-03 (11th Cir. 2009) (holding that
there was no unwarranted sentencing disparity where two defendants were not
similarly situated), cert. denied, 130 S.Ct. 2342 (2010).
In this case, the district court imposed a substantial upward variance.
Zackary’s 151-month sentence is over 3 times greater than the low end of his
advisory guideline range, 46 months. Nevertheless, several of the § 3553(a)
factors supported the imposition of a lengthy sentence in this case.
First, as noted by the district court, the offense of conviction, bank robbery,
was a serious one. See 18 U.S.C. § 3553(a)(1). Zackary put the bank teller in fear
for her life by passing her a note stating that he had a gun, and by making a
threatening gesture towards his waistband as though he were reaching for a gun.
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Although Zackary’s threatening behavior already was taken into account by the
two-level threat-of-death enhancement, the district court also could consider those
facts in determining whether to impose an upward variance. See United States v.
Rodriguez, No. 09-15265, slip op. at 456 (11th Cir. Dec. 27, 2010) (explaining
that a district court may rely on factors that already have been taken into account
in a defendant’s guideline range in deciding whether to impose a variance); see
also United States v. Amedeo, 487 F.3d 823, 828, 833-34 (11th Cir. 2007)
(concluding that it was reasonable for the district court to impose an
above-guideline sentence based on facts already taken into account by the
defendant’s guideline range).
Zackary’s criminal history also supported a sentence above the guideline
range. Zackary had two prior convictions for aggravated robbery. Both of the
robberies involved threats, and at least one of the robberies involved a firearm.
Zackary robbed the Bank of America approximately one month after completing
his term of imprisonment for those earlier robberies. Therefore, it was reasonable
for the district court to conclude that an upward variance was needed to reflect
Zackary’s history and characteristics. See 18 U.S.C. § 3553(a)(1).
Also, because Zackary’s earlier 5-year sentence did not dissuade him from
continuing to commit robberies, the district court appropriately determined that a
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sentence above the guideline range of 46 to 57 months was needed to promote
respect for the law and to protect the public from further crimes committed by
Zackary. See 18 U.S.C. § 3553(a)(2)(A), (C). Zackary’s 151-month sentence has
the effect of deterring others from committing the offense of bank robbery. See 18
U.S.C. § 3553(a)(2)(B). It is also notable that Zackary’s sentence is well below
the 20-year statutory maximum applicable to his offense. See 18 U.S.C.
§ 2113(a); United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008)
(concluding that defendant’s sentence was reasonable because, among other
things, it was well below the statutory maximum).
Zackary’s sentence is substantially greater than the 43-month sentence
received by his codefendant Lightfoot, but there were significant differences
between Zackary and Lightfoot. First, Zackary played a more serious role in the
robbery than Lightfoot. Lightfoot’s involvement was limited to casing out the
bank an hour before the robbery and being the getaway driver. By contrast,
Zackary actually carried out the robbery and threatened the bank teller, making her
believe that he had a gun. Because Zackary’s offense conduct was more
egregious, it was appropriate for the district court to impose a more serious
sentence in his case.
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In addition, the district court imposed a lower sentence in Lightfoot’s case
because Lightfoot had a history of mental health problems and was suffering from
depression and schizophrenia at the time of the robbery. By contrast, Zackary had
never received treatment for mental or emotional problems. Because Lightfoot
and Zackary were not similarly situated in terms of their personal histories or their
involvement in the offense, the district court did not commit a clear error of
judgment by sentencing Zackary to a much longer term of imprisonment than it
imposed in Lightfoot’s case.
In conclusion, the district court did not abuse its discretion in sentencing
Zackary to a term of 151 months’ imprisonment. Although Zackary’s sentence is a
substantial upward variance from his guideline range, it did not fall outside the
“range of reasonable sentences” from which the district court was permitted to
choose. Irey, 612 F.3d at 1190. Accordingly, we affirm.
AFFIRMED.
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