                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3898




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                                                    NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                          No. 04-3898




               UNITED STATES OF AMERICA

                                v.

                     RUSSELL MORGAN,
                                 Appellant



         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                      (D.C. No. 04-cr-00187)
           District Judge: Honorable Berle M. Schiller




           Submitted Under Third Circuit LAR 34.1(a)
                        July 10, 2006

    Before: SLOVITER, McKEE and RENDELL, Circuit Judges

                      (Filed July 11, 2006 )




                           OPINION
SLOVITER, Circuit Judge.

                                             I.

       Appellant Russell Morgan robbed three banks in the winter of 2003-2004, one on

each of the following three dates: December 27, 2003, January 16, 2004, and January 17,

2004. In each case, he presented a demand note to a teller stating that he had a gun,

whereupon the teller in question gave him money from the bank’s fund. Central to the

present appeal is a dispute between the parties over whether, in the course of the second

robbery, Morgan showed a bank teller what appeared to be the butt of a gun.

       On February 9, 2004, two police officers observed Morgan near a bank in

downtown Philadelphia wearing a sweatshirt with red spots on it. Because Morgan

appeared to be “casing” the bank, and because the red spots could have resulted from the

explosion of a dye pack attached to stolen bank funds,1 the officers arrested Morgan in

connection with the robbery of January 16, 2004. He was taken into custody and, after

being provided with Miranda warnings, waived his rights and confessed to the three

robberies.

       On April 6, 2004, the Government filed an information against Morgan in the

Eastern District of Pennsylvania, charging him with three counts of bank robbery in

violation of 18 U.S.C. § 2113(a). On April 23, 2004, Morgan pled guilty to the




                   1
                      An exploding dye pack accompanied the money Morgan
             received in the second robbery.

                                             2
information before United States District Judge Berle M. Schiller. Prior to this plea

colloquy, the parties had entered into a guilty plea agreement (“Agreement”) that Morgan

read, discussed with his attorney, and signed.

       In the portion of the Agreement relevant to the present case, the parties agreed and

stipulated as to each of the three robberies that Morgan’s offense level should be

increased two levels under U.S.S.G. 2B3.1(b)(2)(F) because Morgan made a threat of

death. However, the parties also agreed and stipulated “that the government reserve[d]

the right to request a three-point offense-level increase” for this threat, “pursuant to

[U.S.S.G. 2B3.1(b)(2)(E)] and Application Note 2, on the ground that [Morgan]

brandished an object that created the impression it was an object capable of inflicting

death or serious bodily injury.” App. at 22. U.S.S.G. § 2B3.1(b)(2)(E) provides that a

three level upward adjustment may be applied where “a dangerous weapon was

brandished or possessed.” (emphasis added). An object is considered a “dangerous

weapon” if “(A) the object closely resembles an instrument capable of inflicting death or

serious bodily injury; or (B) the defendant used the object in a manner that created the

impression that the object was an instrument capable of inflicting death or serious bodily

injury (e.g., a defendant wrapped a hand in a towel during a bank robbery to create the

appearance of a gun).” U.S.S.G. § 2B3.1 app. n.2.

       In the Agreement, Morgan also waived his appellate rights but reserved the right to

appeal his sentence if the District Court “erroneously imposed a three-level offense level



                                               3
enhancement pursuant to [U.S.S.G. § 2B3.1(b)(2)(E)].” App. at 24. Because Morgan

excepted the issue presently before us from his waiver of appeal, we are satisfied that we

have jurisdiction over his appeal.

       At Morgan’s plea colloquy, he denied carrying a gun during any of the robberies.

The Government maintained that during the second robbery Morgan showed the teller

what appeared to be the butt of a gun. After the Government summarized the facts of the

case, defense counsel “reserve[d] for sentencing” the issue of “[t]he butt of a gun” in the

following short exchange:

                      THE COURT: All right. Mr. Morgan, do you agree
              that the Government has accurately summarized the facts?
                      [DEFENSE COUNSEL]: Your Honor, if I could just
              say, the only part of the Government’s summation that’s not
              stipulated to would be with respect whether –
                      THE COURT: The butt of a gun.
                      [DEFENSE COUNSEL]: – exactly, your Honor. And
              that we will reserve for sentencing.

App. at 50-51. After the plea colloquy, the presentence investigation report (“PSR”)

adopted the Government’s position and applied the 3-level enhancement.

       The District Court held a sentencing hearing on September 21, 2004.2 At the



                   2
                      Prior to sentencing, Morgan submitted a sentencing
            memorandum which incorporated sentencing arguments and
            objections. In this memorandum, a paragraph in Morgan’s
            “Objections” section referred to the 3-level enhancement:
                   Additionally, even if the Court were to apply the 2
                   levels for threat of death under section
                   2B3.1(b)(2)(F), the Court would be prevented under
                   [Blakely v. Washington, 542 U.S. 296 (2004)]

                                             4
hearing, the Court asked if the parties still disputed any items in the PSR. Morgan replied

that the PSR erroneously noted that Morgan had been convicted of a crime despite the

fact that he had actually been acquitted of that crime. The District Court agreed to correct

the error in question and asked if there were “any other matters in dispute regarding the

pre-sentence investigation report.” App. at 135-36. Morgan replied, “No, your Honor,”

App. at 136, and did not dispute the PSR’s statement that “Morgan reached into his coat

and showed the teller what appeared to be the butt of a handgun.” PSR ¶¶ 9, 34. Based

on this lack of dispute, the District Court “adopt[ed] the facts as presented in the pre-

sentence report.” App. at 136.

       At sentencing, the Court applied the Guidelines as “advisory” based on its view

that “Blakely invalidate[d] the Federal Sentencing Guidelines,” and noted that it had

“discretion to impose a sentence anywhere from zero to the statutory max.” App. at 137.




                    [from] assigning an additional point under
                    2B3.1(b)(2)(E) for brandishing . . . a weapon. The
                    report relies on a witness’s statement that he or she
                    saw Mr. Morgan reach into his pocket and show the
                    butt of a handgun. As reflected in the guilty plea
                    agreement (paragraph 7(c)), the government was
                    fully aware that Mr. Morgan disputed this fact, and
                    indeed it would be entirely inconsistent with Mr.
                    Morgan’s pattern of unarmed conduct. There was no
                    finding by a jury beyond a reasonable doubt of this
                    fact, and therefore Blakely, flatly prohibits reliance
                    on this allegation to enhance Mr. Morgan’s sentence.

             App. at 69 (emphasis added).

                                              5
Morgan requested that the Court should “exercise its sentencing discretion” by imposing

a “sentence that is significantly below what the guidelines, if they were mandatory in this

case, would recommend.” App. at 139. Morgan agreed with the Court that the applicable

advisory “guidelines [range would be] 100 to 125 months.” App. at 139.

       Of import, later in the hearing, the government called to the stand a bank teller

who testified that during the second robbery Morgan pulled from his jacket pocket about

two inches of a black object that appeared to be the butt of a handgun. Throughout the

hearing, Morgan and his attorney repeatedly argued that Morgan did not have a gun at the

time of the second robbery. However, neither Morgan nor his counsel ever addressed the

question of whether Morgan pulled from his pocket something that “closely resemble[d]”

a gun. U.S.S.G. § 2B3.1 app. n.2.

       The Court sentenced Morgan to 100 months’ incarceration. After announcing

Morgan’s sentence, the Court asked both sides whether they “kn[ew] any reason why the

sentence [it had] just stated should not be imposed.” App. at 161. Morgan answered that

he was reserving a general objection “under Blakely” that the sentence improperly

exceeded the maximum allowed by the facts admitted at Morgan’s plea colloquy.

Morgan did not reserve an objection to the fact that the District Court imposed a 3-level

instead of 2-level enhancement for threat of death under U.S.S.G. § 2B3.1(b)(2).

                                             II.

       On appeal, Morgan contends that the District Court violated Federal Rule of



                                             6
Criminal Procedure (“Fed. R. Crim. P.” or “Rule”) 32(i)(3)(B) when it failed to resolve

the alleged dispute over whether he pulled out of his jacket pocket what appeared to be

the butt of a handgun during the bank robbery of January 17, 2004. Rule 32(i)(3)(B)

provides that a district court “must–for any disputed portion of the presentence report or

other controverted matter–rule on the dispute or determine that a ruling is unnecessary

either because the matter will not affect sentencing or because the court will not consider

the matter in sentencing.” 3 Our review of whether a district court has complied with this

Rule 32 issue is plenary. United States v. Furst, 918 F.2d 400, 406 (3d Cir. 1990) (citing,

inter alia, United States v. Blanco, 884 F.2d 1577, 1580 (3d Cir. 1989) (“Courts have

strictly enforced the mandatory language of this rule requiring that the sentencing judge

either make a finding as to the controverted fact or disclaim reliance on the fact for

sentencing.”)).

       At his plea colloquy, Morgan reserved the right to object at sentencing to a finding

that he brandished what appeared to be the butt of a handgun, and also reserved the right

to object to the imposition of a 3-level enhancement on the basis of such a finding. At

Morgan’s sentencing hearing, the District Court found (by virtue of its adoption of the

facts in the PSR) that Morgan pulled what appeared to be the butt of a gun out of his coat

pocket. Although he had reserved his right to do so, Morgan made no objection to this



                    3
                      Rule 32 also provides that a district court “may accept
            any undisputed portion of the presentence report as a finding of
            fact.” Fed. R. Crim. P. 32(i)(3)(A).

                                              7
finding. Indeed, the District Court adopted the facts in the PSR only after assuring that

Morgan did not perceive any outstanding “matters in dispute regarding the pre-sentence

investigation report.” App. at 136.

       Morgan not only failed to dispute the facts presented in the PSR, he also failed to

object to the Sentencing Guidelines range prescribed by the PSR. Indeed, Morgan

expressly agreed that the applicable Guidelines range was “100 to 125 months,” the range

provided in the PSR, even though a lower range would have been applicable absent a

finding that Morgan brandished what appeared to be a gun. Because Morgan failed both

to “inform[] the district court [of] disputed facts contained in the [PSR],” Furst, 918 F.2d

at 407, and to “object[] to the estimate of his guidelines sentence range contained in the

[PSR],” id. at 408, we cannot hold that the District Court erred.

       For the foregoing reasons, we will affirm the District Court’s judgment of

conviction and sentence.




                                              8
