                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-2003

USA v. Hawkins
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1672




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No: 02-1672

                           UNITED STATES OF AMERICA

                                             v.

                                JAMES C. HAW KINS,

                                            Appellant

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               (Crim. No. 00-cr-00416-1)
                        District Judge: Hon. Herbert J. Hutton

                                      ARGUED
                                   February 13, 2003

                    Before: ALITO and M cKEE, Circuit Judges, and
                            SCHW ARZER, District Judge*

                            (Opinion filed: October 17, 2003)
Robert Epstein, Esq. (Argued)
Defender Association of Philadelphia
Federal Court Division
Curtis Center, Independence Square West
Suite 540 West
Philadelphia, PA 19106
       Attorney for Appellant

Robert A. Zauzmer, Esq. (Argued)
Suite 1250
Sarah L. Grieb, Esq.


   *
    The Hon. William W. Schwarzer, United States District Judge for the Northern
District of California, sitting by designation.
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
       Attorneys for Appellee

                                        OPINION

McKEE, Circuit Judge.

      In his appeal, James C. Hawkins argues that the district court committed an error

of law in denying his motion for a diminished capacity downward departure pursuant to

U.S.S.G. § 5K2.13. W e disagree. We conclude instead that the district court properly

denied the departure. Accordingly, we will affirm.

                                            I.

      On July 19, 1999, Hawkins robbed the Prudential Savings Bank at 1834 Oregon

Avenue in Philadelphia, Pennsylvania. He also attempted to rob the Mellon/PSFS Bank

at 18 S. 52nd Street in Philadelphia. The first robbery occurred at approximately 9 a.m.

Hawkins entered the Prudential Savings Bank, approached a teller, handed her a bag and

told her to “[f]ill up the bag.” Hawkins yelled, “Fill up the bag. I want $100,000.” He

then jumped over the counter, grabbed the teller and pulled her to the ground. Hawkins

told everyone else to get down, and filled his bag with money from the teller’s drawer.

He then jumped back over the counter and left the bank with $22,538 in cash. As he

drove away he threw what he believed to be a “dye pack” out of his car window.

      He then drove to the Mellon Bank on S. 52nd Street where he climbed over the

teller counter yelling: “Where are your keys?” The teller opened her drawer with her

                                            2
keys as Hawkins kept telling the teller, “I’m not playing with you.” Hawkins then went to

the next teller and made her take money from her drawer. However, an off-duty

Philadelphia Police Officer who happened to be using the bank’s ATM machine heard

someone say that the bank was being robbed, saw Hawkins behind the teller counter, and

arrested him.

       Following his arrest Hawkins was examined for competency and found not

competent to stand trial. However, after being treated at a federal institution, Hawkins

was subsequently reevaluated and found competent.

       Thereafter, a federal grand jury returned a two-count indictment, charging

Hawkins with bank robbery, in violation of 18 U.S.C. § 2113(a), and he pled guilty to that

indictment pursuant to a plea agreement. As part of the plea agreement, Hawkins and the

government agreed to disagree as to whether a downward departure was warranted under

U.S.S.G. § 5K2.13.

       Prior to sentencing, the government filed a sentencing memorandum opposing a

downward departure for diminished mental capacity although the government agreed, for

purposes of sentencing, that Hawkins suffered from reduced mental capacity.

Nevertheless, it argued that Hawkins did not satisfy the conditions for such a departure

under U.S.S.G. § 5K2.13.

       Not surprisingly, Hawkins’ sentencing memorandum asserted a different view

under § 5K.13. His memorandum included reports of the psychiatric examinations.



                                             3
Hawkins also took the stand and testified in support of his requested departure at his

sentencing hearing. He admitted that he had jumped over the counter at the Prudential

Bank and that the teller was scared. Although he denied pushing the teller, his denial

contradicted other admissions he had previously made on the record. At his change of

plea hearing, the government had presented the factual basis for the guilty plea. In doing

so the prosecutor stated:

              Christie Lamanna (ph), teller, Prudential Savings Bank . . .
              would testify that on July 19, 1999, she was working as a
              teller at the bank. Shortly after 9:00 a.m. a black male
              approached her station, handed her a white plastic CVS bag
              and told her to fill it up. The branch manager, Joanne
              Valentino (ph), went to M s. Lamana’s teller station asking if
              she could help him, and he responded by yelling, “Fill up the
              bag, I want $100,000.” The individual then jumped over the
              counter, grabbed Ms. Lamanna’s shirt and pulled her to the
              ground. The individual told everyone in the teller area to get
              down and the individual asked another teller, Elana Melardini
              (ph), asked her where the money was. Ms. Melardini pointed
              to her drawer, opened the drawer, filled the bag with the
              money, and the individual then jumped over the counter and
              left the bank.

App. at 131a. Following this summary, the court had asked Hawkins: “Mr. Hawkins, do

you understand and agree to the facts of the crimes as stated by the Assistant United

States Attorney?” App. at 115a, 134a. Hawkins had responded, “Yes, I do.” App. at

134a.

        In addition, at his sentencing, Hawkins also acknowledged under oath that he had

told the truth at his change of plea hearing. App. at 158a. Moreover, the Presentence



                                             4
Report (“PSR”) also stated that Hawkins jumped over the counter, grabbed the teller’s

shirt and pulled her to the ground, PSR ¶ 10, and Hawkins did not object to that portion of

the PSR at the sentencing hearing.

       The district court was fully informed about Hawkins’ mental condition and

treatment. The evidence before the court included Hawkins’s statement to one of the

doctors examining him for a mental disorder that he had sought medical treatment at the

Veteran’s Administration Hospital prior to committing the bank robberies, but had never

followed through with any treatment. Hawkins had been medicated with Zyprexa and he

claims that the Zyprexa kept him from being jumpy and from hearing voices. However,

at one point, Hawkins also stated that he did not know why he was taking this medication.

One of the doctors who examined Hawkins stated:

               Mr. Hawkins must stay on his medication and remain in
               treatment whatever his legal disposition. He is non-psychotic
               with the medication, although he was a bit disoriented to date
               when I saw him. . . . Treatment will be long term and will
               need to consist of both monitoring his behavior as well as
               insuring his taking the medication on a regular basis.

App. at 76a.

       The government also introduced the testimony of bank teller, Christie Lamana at

the sentencing hearing. She testified that on the day of the robbery, she was at her desk

when Hawkins approached. At first, she did not understand Hawkins and asked her

manager for assistance. When Lamana came back to her station, Hawkins jumped onto

and over the counter, grabbed Lamana and pushed her to the ground. Hawkins then went

                                             5
into a teller drawer and took the money. He jumped back over the counter and left.

Lamana was on the ground crying while Hawkins was stealing the money from her

drawer. She testified that she felt seriously threatened by Hawkins. The government also

presented three surveillance photographs which depicted Hawkins at Lamana’s counter,

jumping over her counter, and taking money from the teller drawer.

       The district court considered all of the evidence, including Hawkins’s testimony,

and denied Hawkins’s motion for a diminished mental capacity downward departure. It

found that “the standard has not been met and therefore I must deny the departure. . . .”

App at 170a. When asked which prong of § 5K2.13 was not met, the district court

responded, “The serious, the threat.” App. at 174a. The district court then sentenced

Hawkins to seventy-seven months imprisonment, 1 followed by three years of supervised

release. Hawkins was also ordered to pay a $200 special assessment.

       This appeal followed.

                                            II.

       A sentencing court can depart from a defendant’s guideline range if the defendant

committed the charged offense while suffering from a significantly reduced mental

capacity;2 provided that none of the following conditions exist:



   1
   Hawkins’s sentencing range under the Sentencing Guidelines was 77 to 96 months.
PSR ¶ 80.
   2
    As noted above, the government conceded for sentencing purposes that Hawkins
suffered from reduced mental capacity.

                                             6
               (1) the significantly reduced mental capacity was caused by
               the voluntary use of drugs or other intoxicants; (2) the facts
               and circumstances of the defendant’s offense indicated a need
               to protect the public because the offense involved actual
               violence or a serious threat of violence; or (3) the defendant’s
               criminal history indicates a need to incarcerate the defendant
               to protect the public.

U.S.S.G. § 5K2.13. A defendant has the burden of proving entitlement to a departure by

a preponderance of the evidence. United States v. McBroom, 124 F.3d 533, 539 (3d Cir.

1997).

         The district court found that Hawkins was not eligible for a departure because of

the second prong of § 5K2.13; the offense involved “a serious threat of violence.”

Hawkins argues that the district court erred as a matter of law in denying his request for a

diminished capacity departure pursuant to § 5K2.13(2) for two reasons.3 First, he argues

that it is not enough to preclude granting the departure based only on a “serious threat of

violence.” Rather, a “serious threat of violence” precludes a diminished capacity

departure only if the serious threat indicates a “need to protect the public.” Second, he

argues that the district court misinterpreted the phrase “serious threat of violence.”

         Hawkins claims that the district court must make two separate factual findings

before it can deny a diminished capacity departure under the second prong of § 5K2.13.


   3
    We exercise plenary review of alleged sentencing errors based upon a mistake of law
or an incorrect application of the Sentencing Guidelines. United States v. Torres, 251
F.3d 138, 145 (3d Cir. 2000). However, where a district court correctly construes a
guideline, its findings of facts are reviewed for clear error. United States v. Vitale, 159
F.3d 810, 816 (3d Cir. 1998).

                                              7
In his view, a “serious threat of violence” does not necessarily indicate a “need to protect

the public.” Therefore, a district court must find a “serious threat of violence” and it must

find a “need to protect the public.” According to this view, the district court is justified in

denying the departure only when both of these constituent parts of the second prong are

found as facts by the district court. He cites our decision in United States v. Askari, 159

F.3d 774 (3d Cir. 1998), to support this position.

       At the outset, we note that Hawkins never raised this issue before the district court.

Therefore, his claim is reviewed only for plain error. United States v. Knight, 266 F.3d

203, 206 (3d Cir. 2001). However, there is no plain error here and Askari does not

support Hawkins’s argument.

       In Askari, we reconsidered whether the defendant, who had been convicted of

bank robbery, qualified for a diminished capacity departure. At the time we reconsidered

the issue, § 5K2.13 had recently been amended. Under the old version, courts were

required to determine

              [i]f the defendant committed a non-violent offense while
              suffering from significantly reduced mental capacity, . . . .
              provided that the defendant’s criminal history does not
              indicate a need for incarceration to protect the public.

Askari, 159 F.3d at 775 n.1. As noted above, under the new version of the guidelines,

courts must determine

              if the defendant committed the offense while suffering from a
              significantly reduced mental capacity. However, the court
              may not depart below the applicable guideline range if (1) the

                                              8
              significantly reduced mental capacity was caused by the
              voluntary use of drugs or other intoxicants; (2) the facts and
              circumstances of the defendant’s offense indicated a need to
              protect the public because the offense involved actual
              violence or a serious threat of violence; or (3) the defendant’s
              criminal history indicates a need to incarcerate the defendant
              to protect the public.

U.S.S.G. § 5K2.13. Because we found that the new version was a clarifying amendment,

we remanded to the district court to make additional factual findings which it had not

made under the old version. Askari, 159 F.3d at 780.

       Hawkins correctly notes that we remanded so that the district court could make

additional findings on the issue of “whether Askari’s criminal history indicates ‘a need to

protect the public.” Id. (citing § 5K2.13). Given that we remanded this issue for

determination, he argues that because the new version contains the “need to protect the

public” language in both the second and third prongs of § 5K2.13, a district court is

required to make the same type of “need to protect the public” determination with respect

to “a serious threat of violence.”

       However, Hawkins conveniently ignores that we also remanded for factual

findings as to “whether Askari’s offense involved ‘actual violence or a serious threat of

violence.’” Id. Thus, while we did find that the controlling inquiry in the third prong of

§ 5K2.13 was whether the defendant’s criminal history indicates a need to incarcerate the

defendant to protect to public, it is clear that we found that the controlling inquiry under

the second prong of § 5K2.13 focuses on whether the defendant’s offense involved



                                              9
“actual violence or a serious threat of violence.” There is nothing in Askari that requires

a district court to parse out the “need to protect the public” language from the “actual

violence or a serious threat of violence” language and make a separate factual finding on

each issue.

       Hawkins’ second argument is that the district court misinterpreted the phrase “a

serious threat of violence.” He contends that the district court found that his bank robbery

involved “a serious threat of violence” based solely on his admission that the bank teller

appeared frightened of him. But, claims Hawkins, the mere fact that the bank teller was

frightened of him does not mean that there was “a serious threat of violence.” Rather, he

contends that several courts have held that the focus of the inquiry should be on whether

the defendant had the intention and capability of carrying through on the threat. As an

example, he cites to United States v. McFadzean, 1999 WL 1144909 (N.D. Ill Dec. 8,

1999). There, the district court found that the defendant’s bank robbery did not involve a

serious threat of violence, even though the defendant handed the teller a note which read,

“I have a gun and want $3,000 don’t try to touch nothing.” Id. at *5. The district court

believed that there was no serious threat of violence because “the threat was an empty

one[, the defendant] had no weapon and no means to harm anyone.” Id.

       However, here, nothing in the record indicates that the district court limited its

finding of a serious threat of violence to Hawkins’ statement that the teller was

frightened. Moreover, this case is unlike a case where an unarmed bank robber presents a



                                             10
demand note to a teller without using any actual force. In his first robbery, Hawkins

jumped over the teller counter, grabbed the teller’s shirt and violently pushed her to the

ground. In his second robbery, he also jumped over the counter in a menacing manner

and was halted only when an off-duty police officer arrived on the scene with his weapon

drawn. Given this record, we can not conclude that the district court committed plain

error in denying the requested departure for diminished mental capacity.

                                            III.

       For all of the above reasons, we will affirm the sentence.




TO THE CLERK OF THE COURT:

              Please file the foregoing Opinion.


                                                         /s/ Theodore A. McKee
                                                         Circuit Judge




                                             11
