                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0454n.06
                             Filed: May 31, 2005

                                        Case No. 03-5735

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                  )
                                           )
      Plaintiff-Appellee,                  )
                                           )                 ON APPEAL FROM THE
             v.                           )                  UNITED STATES DISTRICT
                                           )                 COURT FOR THE EASTERN
ROGER CLAYTON WHITE,                      )                  DISTRICT OF KENTUCKY
                                           )
      Defendant-Appellant.                )
                                           )
__________________________________________

BEFORE: SILER, BATCHELDER, and ROGERS, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. We filed our initial opinion in this case on

January 12, 2005. On that same day, the Supreme Court issued its decision in United States v.

Booker, 125 S. Ct. 738 (2005), which held that the mandatory federal sentencing guidelines violated

the Sixth Amendment. Because Booker affects the analysis in this case, we granted panel rehearing,

and now issue this revised opinion, which differs from our initial opinion only with regard to our

analysis of the sentencing issues.

       Roger Clayton White [“White”] appeals his conviction under 18 U.S.C. §§2113(a) & (d) of

bank robbery by force, violence and intimidation and his conviction under 18 U.S.C.§922(k) of

possessing a firearm with the manufacturer’s serial number obliterated. White argues that his

conviction must be reversed because the district court erred in refusing to instruct the jury on the

defense of duress. White also argues that his sentence violated the Sixth Amendment in light of
Booker. Because White had opportunities to extricate himself from the robbery and did not do so,

we find that he was not entitled to a jury instruction on duress, and we affirm his conviction.

Because White’s sentence was based, in part, on judge-found facts in violation of the Sixth

Amendment, however, we remand his case for re-sentencing.

                                         BACKGROUND

       On April 17, 2002, White’s brother Jeffrey White [“Jeffrey”]and Jeffrey’s friend Laurie Ann

Fischer [“Fischer”], robbed the Maysville Security Bank & Trust Company at gunpoint. White

acted as the getaway driver, waiting outside the bank in the adjoining parking lot of the Best

Western Hotel in a white car that he had rented for the robbery, armed with a 9mm rifle. Fischer

and Jeffrey escaped in White’s rented car with over $100,000 in cash.

       Shortly after driving Jeffrey and Fischer away from the bank, White encountered police

officers in a police cruiser. White later testified that he “was going to stop,” but Jeffrey pointed a

gun at him and told him to “[m]ove it.” A high speed chase ensued, ending when White crashed his

car into a roadblock, and the car burst into flames. Jeffrey committed suicide in the car. White got

out of the car and walked over to Maysville Police Detective Justin Horch, who testified at trial that

after he read White his Miranda rights, White said, “Boy, that was stupid. Boy, that was stupid . .

. . How much time am I going to get?” Det. Horch also testified that White said he hit the roadblock

in an attempt to kill himself. White did not tell Det. Horch that he had been threatened in any way

or induced to participate in the criminal venture.

       Two weeks later, FBI agent Brian Smith [“Smith”] interviewed White, who was

accompanied by counsel. Smith testified that White said Jeffrey had threatened him while they were




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driving to the bank to commit the robbery, saying, “if you leave us in the bank you’re a dead man.”

Smith testified that White did not mention any other threats.

        At trial, White claimed that he became involved in the bank robbery because Jeffery and

Fischer had threatened to kill him or members of his family, or to have them killed by a mafia-

connected friend, if he did not participate. White admitted, however, that the evening before the

robbery he was permitted to leave the hotel room by himself in order to make a phone call, the

morning of the robbery he checked out of the hotel and went to get coffee by himself, and he had

dropped Jeffrey and Fischer off a block from the bank and was alone during the entire time the

robbery was being committed, and could have contacted the police at any of those times.

        Fischer testified at trial that White wanted to participate in the robbery because he was

between $14,000 and $16,000 in arrears in child support payments—a figure corroborated by an

appropriate state official at trial—and he was at risk of jail time if he did not pay the debt

immediately. According to Fischer, White drew a map of the interior of the bank in mid-March,

participated in the planning of the robbery during the week prior to its execution, rented the white

car used for the robbery from Quality Leasing in Portsmouth, Ohio, on April 15, 2002, and the day

before the robbery, rented a room for the three of them at a Ramada Inn near the bank. Fischer

testified that on that evening, White was away from them for about an hour to make a phone call and

to get something to eat from Wendy’s, and on the morning of the robbery, White checked out of the

hotel and went for coffee by himself. Finally, Fischer testified that while she and Jeffrey were

putting on their disguises in the hotel room, White left the hotel in order to survey the activity at the

police station.




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       At the conclusion of the trial, White requested that the jury be instructed on the defense of

duress. Judge Bunning denied the request, finding as a matter of law that “the defendant has failed

to establish an entitlement to a duress instruction because he has failed to prove . . . that he had no

opportunity to avoid the danger and that he surrendered once the threat abated.” The jury found

White guilty of armed bank robbery and possessing a firearm with obliterated serial numbers, and

White was sentenced to 264 months’ imprisonment on the bank robbery count and a concurrent 60

months on the firearm count. White timely appealed.

                                            ANALYSIS

I.     Duress

       A district court judge’s refusal to give requested jury instructions is reversible error only if

“(1) the instructions are correct statements of the law; (2) the instructions are not substantially

covered by other delivered charges; and (3) the failure to give the instruction impairs the defendant’s

theory of the case.” United States v. Newcomb, 6 F.3d 1129, 1132 (6th Cir. 1993). A defendant

requesting an instruction “has a preliminary burden to introduce some evidence to trigger

consideration of the defense, although that burden is not a heavy one . . . .” United States v. Riffe,

28 F.3d 565, 569 (6th Cir. 1994). “Although a jury instruction should not be given if it lacks

evidentiary support or is based upon mere suspicion or speculation, so long as there is even weak

supporting evidence, [a] trial court commits reversible error in a criminal case when it fails to give

an adequate presentation of a theory of defense.” Newcomb, 6 F.3d at 1132 (internal quotations and

citations omitted).

       In Riffe, we reviewed the five factors adopted by this circuit in United States v. Singleton,

902 F.2d 471 (6th Cir. 1990), that control whether a district court judge should instruct a jury on a


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duress defense. In particular, we discussed the third factor, which requires that the defendant show

“that [he] had no reasonable, legal alternative to violating the law, a chance both to refuse to do the

criminal act and also to avoid the threatened harm.” Riffe, 28 F.3d at 569 (quoting Newcomb, 6 F.3d

at 1134-35) (emphasis omitted). In Newcomb, we recognized Singleton’s point that “the keystone

of the analysis is that the defendant must have no alternative–either before or during the event–to

avoid violating the law.” Newcomb, 6 F.3d at 1135 (quoting Singleton, 902 F.2d at 473).

       The record here demonstrates that White had a reasonable, legal alternative to participating

in the robbery. The district court rightly noted that “there was no proof that [White] was in the

constant company of his alleged coercers, Jeffrey White and Laurie Fischer, in the days, weeks and

hours prior to the robbery.” Indeed, White admitted that he was alone at least twice on the morning

of the robbery, and for some period on the evening before the robbery. Notably, his stated reason

for having been allowed to leave the hotel room on the evening before robbery was to make a phone

call, which would seem to have been the ideal opportunity to make contact with the police, had he

been of a mind to.

       Not only did White have the opportunity to contact the police, evidence suggests contacting

the police would have alleviated any threat of death or serious bodily injury to White or his family.

The evidence supported a concrete fear of death or injury only from Jeffrey or Fischer. Once

arrested, Jeffrey and Fischer could not have harmed White or his family. The record contains no

evidence, other than White’s own speculation, that there was a mafia-connected individual who

would in any way harm White or his family. We find no error in the district court’s conclusion that

White was not entitled to a jury instruction on duress.

II.    Sentencing


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       White also challenges the constitutionality of his sentence in light of United States v. Booker,

125 S. Ct. 738 (2005). In Booker, the Supreme Court held that the mandatory federal sentencing

guidelines violated the Sixth Amendment by requiring judges to enhance the sentences of defendants

based on facts not found by a jury or admitted by the defendant. To remedy this problem, the Court

excised from the Sentencing Act the provisions making the guidelines mandatory. Booker then

instructed reviewing courts to apply its Sixth Amendment holding and its remedial interpretation

of the Sentencing Act to all cases on direct review. Id. at 769. Booker further mandated that

reviewing courts apply ordinary prudential doctrines, such as plain error review, to determine if re-

sentencing is warranted. Id.

       White’s sentence was enhanced, pursuant to the mandatory federal sentencing guidelines in

place at the time, based on facts found by the sentencing judge. The judge enhanced White’s offense

level by 16 points because he found that White discharged a firearm in the course of the offense;

caused a loss that was more than $50,000 but less than $250,000; created a substantial risk of bodily

injury to another person during flight; recklessly endangered another person during flight; and

obstructed justice. Thus, White’s sentence violates the Sixth Amendment under Booker. Since

White failed to make a Sixth Amendment objection at sentencing, however, we conduct plain error

review to determine if he must be re-sentenced. Under that test, there must be (1) error, (2) that is

plain, (3) and that affects substantial rights. United States v. Oliver, 397 F.3d 369, 378 (6th Cir.

2005). If these three conditions are met, an appellate court may then exercise its discretion to notice

the forfeited error if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Id.




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         White’s sentence in violation of the Sixth Amendment constitutes error that is plain. Id. at

378-79. Moreover, according to this circuit’s precedent in United States v. Oliver, a sentence

enhancement based on judge-found facts under a mandatory guidelines system necessarily affects

White’s substantial rights.1 Id. at 379-80. Finally, Oliver dictates that any sentencing error that

leads to a violation of the Sixth Amendment by imposing a more severe sentence than is supported

by the jury verdict automatically diminishes the integrity and reputation of the judicial system. Id.

at 380. Therefore, White’s case must be remanded for re-sentencing.

                                                 CONCLUSION

         For the foregoing reasons, we AFFIRM White’s conviction, but REMAND his case for re-

sentencing in accordance with Booker.




         1
          Speaking only for myself, I note my disagreement with Oliver’s unwarranted departure from traditional plain
error review. Despite purporting to apply plain error review, Oliver fails even to discuss, much less enforce, the
defendant’s traditional burden of proving that the district court’s error prejudiced him. Oliver reasoned that since the
defendant received a sentence “beyond that which was supported by the jury verdict and [his] criminal history,” he was
necessarily prejudiced because he “arguably received a sentence that was longer than his sentence would have been
absent a Sixth Amendment violation.” Oliver, 397 F.3d at 379-80 (emphasis added). “Arguably” is not enough,
however. Under the ordinary plain error review that Booker requires, 125 S. Ct. at 769, a defendant bears the burden
of proving that he was prejudiced by the error, United States v. Olano, 507 U.S. 725, 734 (1993): i.e., that absent that
error, he would more likely than not have received a lower sentence. By simply ignoring this requirement, Oliver
effectively holds that every Sixth Amendment violation in a Booker-type case automatically prejudices a defendant, a
holding that does not comport with Supreme Court precedent.

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