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United States Court of Appeals

Tenth Circuit


June 6, 2005




Plaintiff - Appellee,


No. 04-7036

(D.C. No. 03-CR-14-WH)

(E. D. Oklahoma)

Defendant - Appellant.
Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
Defendant Kenneth Dean appeals his conviction and sentence for attempted
bank robbery in violation of 18 U.S.C. 2113(a). He argues that (1) the evidence
of guilt was insufficient and (2) his sentencing enhancements were based on facts
not proven to a jury beyond a reasonable doubt as required by Blakely v.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
therefore ordered submitted without oral argument.
This order and judgment is
conditions of 10th Cir. R. 36.3.

Washington, 124 S. Ct. 2531 (2004). We exercise jurisdiction under 28 U.S.C.

1291, and affirm Defendants conviction and sentence.
According to bank teller Molly Mounces trial testimony, on January 9,
2003, Defendant walked into BancFirst in McAlester, Oklahoma, and said to her,
I want all your money. R. Vol. II at 21. Initially confused, she responded that
he would have to write a check. Defendant then started reaching across his chest
with his right arm and he said, I dont think you understand. I have a gun; I want
all your money; . . . Im going to blow your damn head off. Id. Ms. Mounce
stated that Defendant wore an unbuttoned sports jacket, and his right hand was
across his body and inside the jacket. Defendant repeatedly told her, Hurry up,
Im going to blow your head off. Id. at 23. She was terrified and thought
Defendant was going to shoot her. Ms. Osborne, a nearby co-worker, described
Defendants voice as loud and serious Id. at 37. In fumbling around with the
bags and the money, Ms. Mounce gave Defendant an empty bag. He threw it
down and then left the bank. He was apprehended in the parking lot next to the
bank. No gun was recovered; he was carrying only a cane, a pack of cigarettes, a
lighter, and some change. Ms. Mounce testified that she and Ms. Osborne had
twice seen Defendant walking across the banks parking lot earlier that morning.


Three days before the robbery Defendant made four different withdrawals,
totaling $649, on his BancFirst ATM card; on the day of the robbery Defendants
account was $39.48 overdrawn. Miron Dean, Defendants nephew, testified that
on either January 6th or 7th he had a conversation with Defendant in which
Defendant explained that he was in a bind because he had gambled away his
money and he asked his nephew to rob a bank with him. Before Miron Dean
testified, he had pleaded guilty to three bank robberies and was awaiting
At the time of his arrest Defendant was 71 years old and had been partially
paralyzed by a stroke. He has no use of his left arm, walks very slowly and only
with a cane, and has numerous other health problems.
A. Sufficiency of the Evidence
Defendant argues that the elements of 18 U.S.C. 2113(a) were not proved
with sufficient evidence. The Government must prove beyond a reasonable doubt
that the defendant attempted to take, by intimidation, property in the possession of
a bank. See 18 U.S.C. 2113(a); United States v. Bishop, 890 F.2d 212, 219
(10th Cir. 1989). Relying mostly on his frail appearance and physical handicaps,
Defendant stresses that the evidence does not adequately prove intimidation.



favorable to the jurys verdict. United States v. Espinoza, 338 F.3d 1140, 114647 (10th Cir. 2003). We will reverse the verdict only if no rational jury could
have found Defendant guilty beyond a reasonable doubt. Id. at 1147.
In United States v. Monholland, 607 F.2d 1311, 1318 (10th Cir. 1979), we
stated that mere intention to commit a specified crime does not amount to an
attempt. It is essential that the defendant . . . [also] do some overt act adapted to,
approximating, and which in the ordinary and likely course of things will result
in, the commission of the particular crime. In later cases we required a
substantial step toward the commission of the crime, which we defined as an act
that is strongly corroborative of the firmness of the defendants criminal intent.
United States v. Prichard, 781 F.2d 179, 181 (10th Cir. 1986) (quoting
United States v Bunney, 705 F.2d 378, 381 (10th Cir. 1983)). In addressing a
claim of insufficient evidence in the context of an attempted bank robbery we
must determine whether [Defendants] objective acts . . . strongly corroborate his
intent to [take, by intimidation, property in the possession of] the bank. Id.
The jury was presented with evidence that (1) Defendant asked his nephew
to rob a bank with him only a few days before his arrest; (2) the bank tellers saw
him outside the bank two other times the morning of the robbery, perhaps

casing his target; and (3) Defendant demanded money, asserted that he had a
gun, while gesturing toward his pocket with his right hand, and uttered numerous
threats that he would shoot the bank teller. Even in light of his physical
limitations, Defendants loud and serious statements that he had a gun and his
numerous threats to shoot the bank teller are more than sufficient evidence to
support a jury finding of intimidation. See United States v. Lajoie, 942 F.2d 699,
700-01 (10th Cir. 1991) (handing a bank teller a note claiming to have a gun is
sufficient evidence of intimidation); Bishop, 890 F.2d at 219-20 (same). Although
Defendant left the bank without taking any money, his acts strongly corroborate
his intent to rob the bank. There was sufficient evidence to support a conviction
of attempted bank robbery under 18 U.S.C. 2113(a).
B. Sentence Enhancements
Under the United States Sentencing Commission, Guidelines Manual,
2B3.1, Defendants base offense level for his robbery conviction was 20. The
sentencing court increased his base level by two levels because the property of a
financial institution . . . was an object of the offense, USSG 2B3.1(b)(1), and
another three levels because a dangerous weapon was brandished or possessed,
USSG 2B3.1(b)(2)(E), for a total offense level of 25. Given Defendants
criminal history category of II, the guideline sentencing range was 63 to 78
months. See USSG 5A. Defendant was sentenced to 70 months imprisonment.

Without the enhancements, Defendants sentencing range would have been 37 to

46 months. See id.
In applying the financial-institution enhancement, the sentencing court
stated: The jury in this case determined that Mr. Deans intent was to take the
property of the bank and found him guilty of the instant offense beyond a
reasonable doubt. R. Vol. III at 9. Regarding the enhancement for brandishing a
dangerous weapon, the court relied on trial testimony indicating that the
defendant reached with his right hand into the left inside pocket of his sports
jacket and advised Mounce that he had a gun and would blow her head off. Id.
The court explained that [t]he guideline enhancement pursuant to 2B3.1(b)(2)(E)
does apply when a defendant creates the impression that they possess an object
capable of inflicting death or serious bodily injury. Id. at 9-10; see USSG
2B3.1, cmt. n.2; United States v. Farrow, 277 F.3d 1260, 1268 (10th Cir. 2002)
(a concealed hand may be an object which potentially triggers the three-level
enhancement under 2B3.1(b)(2)(E)).
In his appellate brief Defendant contends for the first time that the district
court committed error under Blakely by enhancing his sentence based on facts not
proved beyond a reasonable doubt. After briefing in this case the Supreme Court
decided United States v. Booker, 125 S. Ct. 738 (2005). We have identified two
types of Booker error: (1) constitutional Booker error existing when judge-found

facts, other than those of prior convictions, [are relied upon] to enhance a
defendants sentence mandatorily, United States v. Gonzalez-Huerta, 403 F.3d
727, 731 (10th Cir. 2005); and (2) nonconstitutional Booker error, occurring when
the sentencing court applies the Guidelines in a mandatory fashion, as opposed
to a discretionary fashion, even though the resulting sentence was calculated
upon the fact of a prior conviction, id. at 731-32. Here, we have one nonconstitutional error and one constitutional error.
Defendant contends that imposition of the two-level financial-institution
enhancement, which is applicable when the property of a financial institution . . .
was an object of the offense, USSG 2B3.1(b)(1), was error because he did not
admit to the enhancement and the jury made no findings to support the
enhancement. Such error would be constitutional error, but we see no error. For
the jury to find Defendant guilty of attempted bank robbery, the instructions
required it to find beyond a reasonable doubt that [D]efendant attempted to take
from a person or the presence of a person money belonging to, or in the care,
custody, control, management, or possession of a federally insured bank. R. Vol.
I, doc. 22. Thus, the essential facts underlying this enhancement were found
beyond a reasonable doubt by a jury. In contrast, the three-level enhancement for
brandishing or possessing a deadly weapon was based on judge-found facts and is

therefore constitutional Booker error. Gonzalez-Huerta, 403 F.3d at 731. As for

nonconstitutional Booker error, there is no question that the sentencing court
acted on the assumption that the Sentencing Guidelines were mandatory. Thus,
this case presents both types of Booker error.
These errors, however, were not brought to the sentencing courts attention.
Although Defendant contested both his sentence enhancements, he did not raise
an argument based on Apprendi v. New Jersey, 530 U.S. 466 (2000), in district
court. (Blakely had not yet been decided.) Accordingly, we review for plain
error. Gonzalez-Huerta, 403 F.3d at 730. Plain error occurs when there is (1)
affects the fairness, integrity, or public reputation of judicial proceedings. Id. at
732 (internal quotation marks omitted). Defendant must satisfy all four
requirements. Id. The first two prongs of plain-error analysis are clearly satisfied
here. Id. But Defendant fails on the fourth prong, making it unnecessary to
address the third.
Under the fourth prong, remand for resentencing is not required if
evidence in the record demonstrates that the district court would impose the
same sentence even under an advisory Guidelines system. United States v.
Lawrence, 405 F.3d 888, 908 (10th Cir. 2005). Factors to consider in this inquiry
may include, but are not limited to, (1) statements indicating the district courts

satisfaction with the guideline sentence, United States v. Magallanez,


2005 WL 115913 at *9 (10th Cir. May 17, 2005); (2) sentencing above the
minimum of the applied guideline range, Lawrence, 405 F.3d at 908; (3) rejection
of arguments for downward departures, id; and (4) the weight of the evidence
supporting the enhancement. Magallanez, 2005 WL 1155913 at *9.
Although Defendant did not request a downward departure, the other three
considerations weigh against remanding for resentencing. First, after sentencing
the Defendant the court stated: I find no reason to depart from the range called
for by the application of the guidelines. R. Vol. III at 18-19. Second, despite
defense counsels arguments at sentencing for consideration of Defendants
physical limitations, the court refused to impose the minimum sentence and set
the sentence at 70 months, near the midpoint of the applicable guideline range.
Finally, there is no real dispute concerning the factual basis of the enhancements.
In particular, the sentencing court determined that Defendant reached his right
hand into the left inside pocket of his jacket, claimed to have a gun, and
threatened to blow the tellers head off. This was consistent with the only
eyewitness testimony at trial. Defense counsel at sentencing argued that
Defendant could not have manipulated his right hand in this manner because he
had his cane in that hand; but at allocution Defendant himself undermined this
argument by asking the court to view the film of the robbery, which, he asserted,

showed that his cane was hanging on the counter. R. Vol. III at 15. The record
strongly suggests that even with greater latitude, post-Booker, to take the weight
of the evidence in support of sentencing enhancement into account, the court
would reach the same conclusion regarding the proper sentence. Magallanez,
2005 WL 1155913, at *9. In sum, nothing in the record suggests that remand
would produce a lesser sentence. Because a remand would be an exercise in
futility, Id. at *10, we conclude that Defendant has not demonstrated that the
fairness, integrity, or public reputation of the proceedings would be imperilled by
the sentence. Id.
For the reasons set forth above we AFFIRM Defendants conviction and
Harris L Hartz
Circuit Judge