Opinion
Civil Action No. 2:02-487
June 17, 2002
O R D E R
This matter is before the court pursuant to the Government's Motion for Summary Judgment in response to Arnold Snipes's motion filed pursuant to 28 U.S.C. § 2255.
BACKGROUND
On July 11, 2000, a federal grand jury filed a two-count indictment charging Arnold Snipes (Snipes) with bank robbery and firearms offenses. Count 1 charged Snipes with armed bank robbery, in violation of 18 U.S.C. § 2113 (a) and (d). Count 2 charged Snipes with using and carrying a firearm during and in relation to a crime of violence, and with possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924 (c)(1)(A).
Pursuant to a written plea agreement, Snipes pled guilty to both counts on November 7, 2000. A Presentence Investigation Report (PSIR) was prepared. Neither party had any objections to the PSIR. On February 21, 2001, the district court sentenced Snipes to 168 months of incarceration. The sentence consisted of 48 months as to Count 1, the bank robbery charge, and a mandatory ten-year consecutive sentence on Count 2, the firearms charge. Snipes did not appeal.
On February 14, 2002, Snipes filed a petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
FACTUAL HISTORY
On July 3, 2000, a white male wearing a bandana over his face robbed the First Citizen's Bank in Summerville, South Carolina. When Snipes, the robber, entered the bank, a teller hit the alarm button. Snipes pulled out a gun, told a teller to give him all her money, and told her if she gave him a dye pack, he would kill her. Snipes walked down the counter, demanding money from each teller. He used threatening and obscene language and vowed to shoot the tellers if they gave him dye packs.
Snipes ran out of the bank, got in his red Ford pickup, and fled towards I-26. During the getaway pursuit, Snipes shot at the pursuing police. The police estimated Snipes fired at least 25 times at them. Two bullets struck a police car grill and another struck a windshield.
The chase ended near I-26, after Snipes abandoned his truck and ran into the woods carrying a white bag. A SLED dog team and SWAT team agents apprehended Snipes in the woods without incident. Next to Snipes on the ground at the time of his arrest was a white bag labeled "First Citizen's Bank". Authorities found two firearms inside Snipes' truck. The PSIR recommended a total offense level of 23, which included a three-point reduction for acceptance of responsibility. The recommended level included a two-point enhancement because the property of a financial institution was taken, and one point was added because the intended loss exceeded ten thousand dollars. The PSIR also recommended a three-point enhancement for assaulting a police officer during the course of flight. Snipes' criminal history category was I, with a sentencing range of 46-57 months for Count 1. Count 2 required a mandatory ten-year consecutive sentence.
ANALYSIS
Snipes argues that he discharged a firearm after the successful completion of the bank robbery. Therefore, Snipes reasons, the escape was not part of the robbery, and the mandatory minimum for his offense should be five to seven years, rather than the mandatory ten years of imprisonment that the sentencing court imposed. (Snipes Mem. At 12-14.)
This court sentenced Snipes pursuant to 18 U.S.C. § 924 (c)(1)(A) on Count 2. The statute under which Snipes was indicted and to which he pled guilty stated:
(C)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking clime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime —
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.18 U.S.C. § 924 (c)(1)(A) (West 2002).
This court sentenced Snipes to a mandatory ten-year consecutive sentence pursuant to § 924(c)(1)(A)(iii), because Snipes discharged the firearm during the course of the bank robbery. Snipes' argument that the robbery was over when he shot at police has no merit; he was attempting to escape immediately after leaving the bank. No break in the events of the robbery occurred prior to the discharge of the firearm at the police.
Escape following a bank robbery is part of the robbery offense. The Fourth Circuit has held that the escape phase is not an event occurring after the robbery, but is part of the robbery itself. United States v. McCaskill, 676 F.2d 995, 1000 (4th Cir. 1982). In United States v. Passmore, No. 97-4781, 1998 WL 746866 (4th Cir. Oct. 26, 1998) the Fourth Circuit stated that a robbery is "naturally understood to include the act of fleeing and the immediate consequences of such flight." Id. at **1 (quoting United States v. Muhammad, 948 F.2d 1449, 1456 (6th Cir. 1991)). See also United States v. Pate, 932 F.2d 736, 738 (8th Cir. 1991) (stating "[a] bank robbery does not necessarily begin or end at the front doors of the bank."). See United States v. James, 998 F.2d 74, 80 (2d Cir. 1993) (holding that "[t]he escape phase of the crime of bank robbery is part of the ongoing robbery, not an event occurring after the robbery").
In United States v. Willis, 559 F.2d 443, 444 (5th Cir. 1977), the Fifth Circuit acknowledged that "escape immediately following the taking is a necessary phase of most violent bank robberies. In United States v. Bates, 896 F.2d 912, 915 (5th Cir. 1990), the Fifth Circuit held that the "district court was entitled, if indeed not required, to consider conduct during flight in imposing sentence." The court then upheld the trial court's upward departure in the defendant's sentence, based on the mayhem the defendant committed during his escape from a bank robbery. See also United States v. James, 998 F.2d 74, 80 (2d Cir. 1993) (holding explicitly that bank robbery offense under 18 U.S.C. § 2113 (a) extends to the period of hot pursuit.).
Similarly, in reviewing an enhancement under U.S.S.G. § 2B3.1(b)(3), the Sixth Circuit found that because "the crime of bank robbery cannot be completed without some form of flight or attempted flight, the crime is more naturally understood to include the act of fleeing and the consequences of such flight." United States v. Muhammad, 948 F.2d 1449, 1456 (6th Cir. 1991).
DOUBLE JEOPARDY CLAIM
Snipes appears to raise a double jeopardy argument by arguing that he could not be convicted of violating both 18 U.S.C. § 2113, the bank robbery statute, and 18 U.S.C. § 924 (c), the firearms statute. (Snipes Mem. At 9-11.) He is wrong. These are two separate statutes, and the elements are not the same.
The Double Jeopardy Clause of the Fifth Amendment to the Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Among the protections this clause guarantees is protection against multiple punishments for the same offense. United States v. Dixon, 509 U.S. 688, 696 (1993). The purpose of the bar against multiple punishments is "to ensure that the sentencing discretion of courts is confined to the limits established by the legislature." Ohio v. Johnson, 467 U.S. 493, 499 (1984). Although the bar on double jeopardy restrains the executive and judicial branches, it leaves the legislature basically untouched. See Garrett v. United States, 471 U.S. 773 (1985). Therefore, where the legislature has specifically authorized cumulative punishments for the same conduct, no double jeopardy exists. Missouri v. Hunter, 459 U.S. 359, 365-66 (1983). To determine whether the legislature has authorized cumulative punishments, the language of the statutes provides the most unambiguous evidence. When the legislature enacts two statutes that apply to the same course of conduct, the critical issue for double jeopardy analysis is whether each statute requires proof of an element not included in the other statute. Blockburger v. United States, 284 U.S. 299, 304 (1932).
The relevant statute set forth in Count 1 of the indictment states:
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of?, any bank, . . . Shall be fined under this title or imprisoned not more than twenty years, or both.
(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.18 U.S.C. § 2113 (West 2000).
The specific context of the language of § 924(c) is the firearms chapter of Title 18. Section 924 enumerates the penalties for the use of firearms and indicates Congressional intent to punish more severely those people who employ firearms in committing other crimes. Originally passed as part of the Gun Control Act of 1968, § 924(c) was amended as part of the Comprehensive Crime Control Act of 1984 as an attempt to make the statute a more substantial deterrent to violent crime. John K. Mehochko, 18 U.S.C. § 924 c): Liability for Both Parties to a Guns-for-Drugs Trade, a Criticism of United States v. Westmoreland, 1999 U. Ill. L Rev. 327, 352-53 (1999). Subsequent amendments have increased penalties. Id. at 353.
The statute is unambiguous:
c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence . . . (including a crime of violence . . . that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) . . . uses or carries a firearm, or who in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence . . .
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.18 U.S.C. § 924 (West 2002) (emphasis added).
The statute therefore requires the sentencing court to impose a mandatory consecutive sentence, in addition to the punishment for the crime of violence. The explicit language of § 924(c)(1)(A) makes clear Congress's intent to add ten additional years of mandatory, consecutive imprisonment to any crime of violence in which a firearm is discharged. The statute applies to "any crime of violence," not only to specific crimes. See United States v. Johnson, 32 F.3d 82, 85 (4th Cir. 1994).
With regard to the bank robbery charges against Snipes, the Government was required to prove that Snipes took money or property from a bank "by force and violence, or by intimidation," 18 U.S.C. § 2113 (a), and that in doing so he used a dangerous weapon to "assault any person" or "put in jeopardy the life of any person," 18 U.S.C.A. § 2113(d). On the firearms charge, the Government was required to prove that Snipes used or carried a firearm during and in relation to any crime of violence, or possessed a firearm in furtherance of a crime of violence.See 18 U.S.C. § 924 (c)(1). A person can be guilty of violating § 924(c) without being guilty of bank robbery under § 2113. Likewise, a person can be guilty of bank robbery without being guilty of using or carrying a firearms in connection with a crime of violence.
Therefore, for the above reasons, the Government's motion for Summary Judgment is GRANTED.