UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 94-5778

TIMOTHY DWAYNE BAILEY,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                    No. 94-5807

TIMOTHY DWAYNE BAILEY,
Defendant-Appellee.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-94-21-L)

Submitted: January 30, 1996

Decided: February 14, 1996

Before HALL, MURNAGHAN, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

James K. Bredar, Federal Public Defender, Beth M. Farber, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant.
Lynne A. Battaglia, United States Attorney, Carmina S. Hughes,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Timothy Dwayne Bailey was convicted by a jury of bank robbery,
18 U.S.C.A. § 2113(a) (West Supp. 1995). He was sentenced to a
term of 78 months, a downward departure from the applicable career
offender1 guideline range of 210-240 months. Bailey appeals his con-
viction on the ground that the district court failed to give his requested
jury instruction on duress. He also appeals his sentence, contending
that the district court erred in finding that he was a career offender,
in failing to make findings on acceptance of responsibility, USSG
§ 3E1.1, and in refusing to depart on the ground of duress. USSG
§ 5K2.0. The government appeals the district court's decision to
depart below the career offender guideline. For the reasons discussed
below, we affirm the conviction and sentence.

Timothy Bailey robbed a bank in Baltimore, Maryland, by present-
ing a teller with a demand note written on a brown paper bag. The
note said: "Give this man $20,000 unmarked bills. You are being
watched so that means you are responsible for everyone's lives in the
bank. P.S., don't report until 3:00 o'clock p.m. We are pros on the
job. The Crypts." A policewoman in uniform happened to be in the
bank at the time, and she arrested Bailey before he went out the door.
A note written on a green envelope was found near the spot where
Bailey was arrested. It said, "Please do what they say." A hypodermic
needle was found in Bailey's pocket after the arrest. At this point,
Bailey said he was sick and needed help.
_________________________________________________________________
1 United States Sentencing Commission, Guidelines Manual, § 4B1.1
(Nov. 1993).

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At his trial, Bailey testified that he had been laid off from his job
two weeks before the robbery and, as a result, was unable to pay the
money he owed to two drug dealers named Mike and Antoine from
whom he bought heroin daily. Bailey testified that Mike told him he
would have to rob a bank to get the money and dictated a demand
note which Bailey wrote on the paper bag. Bailey said he was afraid
that he would be killed if he did not follow Mike's directions because
Mike and Antoine were enforcers who carried firearms and were
known to beat people with bats. However, he testified that they did
not explicitly threaten to kill him. Bailey said he wrote the second
note on a green envelope before he went up to the teller, but he
remembered having written, "Please help," rather than "Please do
what they say."

Bailey testified that he noticed the policewoman while he was writ-
ing the second note. He said he did not approach her because he did
not want to be known as a snitch. However, he said that after his
arrest he thanked the officer for helping him. After extended argu-
ment, the district court denied Bailey's motion for an instruction on
duress.

Following Bailey's conviction, the probation officer recommended
that he be sentenced as a career offender because he had two prior fel-
ony convictions for crimes of violence. At the sentencing hearing, the
principal issue was Bailey's status as a career offender. Bailey argued
that the state court docket sheet describing his prior conviction for
attempted robbery with a deadly weapon (ATRDW) was not suffi-
ciently reliable evidence of that conviction because the facts pre-
served with the docket entry did not reflect attempted robbery with a
deadly weapon.2 The facts described were that, while Bailey and the
victim were being transported in a police van, Bailey said to the vic-
tim, "I'm in for murder. I have nothing to lose." He then sat on the
victim's lap and took $2.66 and a pack of cigarettes from the victim's
pocket. Bailey did not testify about the conviction, representing
through counsel that he did not remember what his offense was.

The district court at length found that the state court record estab-
lished Bailey's ATRDW conviction as a crime of violence despite the
_________________________________________________________________
2 The factual basis for the conviction apparently came from police files.

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absence of a weapon in the facts recorded and that, therefore, he qual-
ified as a career offender. The court declined to depart for duress.
However, the court departed under USSG § 5K2.0 to the guideline
range which would apply without the career offender enhancement
because (1) the predicate convictions were both old, (2) the record of
the attempted robbery conviction was confused, (3) Bailey had no
convictions since 1985, (4) the instant offense was not violent, and (5)
he had a record of employment. Based on these factors, the court
found that Bailey should not be sentenced as a career offender. The
court imposed sentence at the top of the guideline range of 63-78
months.

On appeal, Bailey first challenges the denial of his requested jury
instruction on duress. A defendant may raise the affirmative defense
of duress by presenting evidence that he acted because of a well-
grounded fear of immediate death or serious injury and that he had
no reasonable opportunity to avoid the threatened harm except by
committing the crime. United States v. Neal, 990 F.2d 355, 359 (8th
Cir. 1993); United States v. King, 879 F.2d 137, 139 (4th Cir.), cert.
denied, 493 U.S. 900 (1989). However, if the evidence is insufficient
as a matter of law to support one of the elements of the defense, the
district court may refuse to give the instruction. United States v.
Bailey, 444 U.S. 394, 413 (1980); United States v. Sarno, 24 F.3d
618, 621 (4th Cir. 1994).

The district court found that Bailey had a reasonable opportunity
to avoid any threatened harm by means other than robbing the bank
but failed to take advantage of the presence of the policewoman.
Moreover, the court found that Bailey did not believe he was in
immediate danger of being killed should he fail to commit the rob-
bery. A generalized fear is not sufficient. United States v. Stevens,
985 F.2d 1175, 1182 (2d Cir. 1993). The evidence of duress was
insufficient as a matter of law and, therefore, the district court did not
err in refusing to give the requested instruction.

The remaining issues concern Bailey's sentencing. We find first
that the district court correctly determined that Bailey was a career
offender. The state court record showing Bailey's conviction for
attempted robbery with a deadly weapon was sufficient to establish
the fact of his conviction and thus to make him a career offender.

                     4
Under United States v. Wilson, 951 F.2d 586, 588 (4th Cir. 1991),
cert. denied, 504 U.S. 951 (1992), a categorical or legal approach
rather than a factual inquiry is used in determining whether a prior
offense is a crime of violence. Attempted robbery with a deadly
weapon, by definition, is a crime of violence. USSG§ 4B1.2, com-
ment. (nn.1-2).

The district court's decision not to depart downward on the ground
of duress is not reviewable on appeal. United States v. Bayerle, 898
F.2d 28, 31 (4th Cir.), cert. denied, 498 U.S. 819 (1990). We find that
Bailey abandoned the issue of acceptance of responsibility by failing
to raise the issue and instead informing the district court that there
were no problems with the presentence report other than the career
offender recommendation.

Finally, the government maintains in its cross-appeal that the dis-
trict court erred in departing to the guideline range which would have
applied if Bailey had not been a career offender. A downward depar-
ture is reviewed under the four-part test set out in United States v.
Hummer, 916 F.2d 186, 192 (4th Cir. 1990), cert. denied, 499 U.S.
970 (1991). The district court's identification of a mitigating circum-
stance which was not adequately considered under the guidelines is
reviewed de novo. Its factual finding that the circumstance is present
in the case is reviewed for clear error. Next, the court's decision that
the factor is of sufficient importance that a departure should result is
reviewed under an abuse of discretion standard, as is its decision con-
cerning the extent of the departure.

The government argues that all the factors cited as a basis for the
departure were considered by the Sentencing Commission. However,
a departure from the career offender guideline range is permissible
under USSG § 4A1.3, p.s. if the district court finds that career
offender status overstates the seriousness of the defendant's past
criminal conduct. United States v. Adkins, 937 F.2d 947, 952 (4th Cir.
1991). Although the district court stated that the departure was pursu-
ant to USSG § 5K2.0, the court's stated reasons for the departure
clearly focus on overstatement of the seriousness of Bailey's past con-
duct, a permissible ground for departure.

We cannot say that the district court clearly erred in finding that
career offender status overstated Bailey's criminal history. Since

                     5
1985, Bailey had absconded from parole supervision in New Jersey
and used drugs, but had no new convictions. He had worked, although
only sporadically, as a sheet metal worker. The district court
expressed misgiving about adding ten years to Bailey's sentence
based on a state court record that was incomplete or garbled in some
way and could not be clarified. The age of Bailey's predicate convic-
tions combined with the questionable factual basis contained in the
state record for the attempted robbery conviction support the district
court's decision.

Finally, the decision to depart and the extent of the departure were
not an abuse of discretion. In departing downward under § 4A1.3, the
proper procedure is to "use, as a reference, the guideline range for a
defendant with a higher or lower criminal history category, as appli-
cable." USSG § 4A1.3; United States v. Summers, 893 F.2d 63, 68
(4th Cir. 1990). The court used the guideline that would have applied
had Bailey not been a career offender and sentenced him at the top
of that range.

We therefore affirm the conviction and sentence. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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