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


12-24-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2566




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                                                                 NON-PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 02-2566


                           UNITED STATES OF AMERICA

                                            v.

                                 VERNON E. BARNES,
                                     a/k/a Tex

                                                 VERNON E. BARNES,
                                                           Appellant


                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                       (D.C. Criminal Action No. 01-cr-00172-1)
                         District Judge: Honorable Yvette Kane


                                Argued January 23, 2003

              Before: NYGAARD, AM BRO and LOURIE*, Circuit Judges

                             (Opinion: December 24, 2003)

                                                 L. Rex Bickley, Equire (Argued)
                                                 121 South Street
                                                 Harrisburg, PA 17101
                                                       Attorney for Appellant


        * Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit,
sitting by designation.
                                                   Thomas A. Marino
                                                     United States Attorney
                                                   Theodore B. Smith, III (Argued)
                                                     Assistant U.S. Attorney
                                                   Office of United States Attorney
                                                   Federal Building
                                                   228 Walnut Street
                                                   P.O. Box 11754
                                                   Harrisburgh, PA 17108
                                                          Attorneys for Appellee




                                OPINION OF THE COURT




AM BRO, Circuit Judge

       Vernon E. Barnes challenges the District Court’s decision to depart upward from

the United States Sentencing Guidelines custody range of 151 to 188 months to sentence

him to 240 months imprisonment. The District Court’s failure to set out the reasons for

the departure has hampered our ability to review it.1 We nonetheless conclude that the



   1
       When a court departs from the Sentencing Guidelines custody range, Congress
requires it to state “the specific reason” for the departure. 18 U.S.C. § 3553; see also 18
U.S.C. § 3742(e)(3)(C) (“[T]he court of appeals shall determine whether the sentence . . .
departs to an unreasonable degree from the applicable guidelines range, having regard for
. . . the reasons for the imposition of the particular sentence, as stated by the district court
pursuant to the provisions of section 3553(c).”). We have repeatedly emphasized this
requirement in contexts relevant to the District Court’s decision to depart. See, e.g.,
United States v. Cicirello, 301 F.3d 135, 146 (3d Cir. 2002) (“We are not alone in
mandating that sentencing courts . . . reflect their reasoning . . . .”) (citations omitted);
United States v. Harris, 44 F.3d 1206, 1213 (3d Cir. 1995) (noting that the District
Court’s “cryptic articulation of its reasoning” was “too conclusory to permit us to perform
our review function and attempt to assure the uniformity of sentencing that Congress

                                               2
departure was permitted, and therefore affirm.

                                    BACKGROUND

       The parties are familiar with the facts of the case, so we describe them only briefly.

Within a two-week period Barnes and two other men, Erick Hobbs and Ernest Weidner,

committed three bank robberies. Barnes stole the getaway cars for each of the robberies.

At each bank, he pointed a gun at a teller. And he used the robbery proceeds to purchase

large quantities of marijuana.

       Barnes was convicted of the October 13, 1999, robbery of the Adams County

National Bank in Cashtown, Pennsylvania.2 Under the Sentencing Guidelines, he has 27

criminal history points, putting him in criminal history category VI, and an offense level

of 29, resulting in a custody range of 155 to 181 months. As noted above, the District

Court departed upward to sentence Barnes to 240 months in prison, the statutory

maximum under 18 U.S.C. § 2113(a). The Court explained its decision, in relevant part,

as follows:



sought to achieve”). The District Court’s conclusory explanation here did little more than
parrot the provisions of the Guidelines that authorized it to depart.
   2
    A four-count indictment was brought against Barnes on the basis of this robbery.
Count I charged him with conspiracy to commit the offenses charged in the remaining
counts, in violation of 18 U.S.C. § 371. Count II charged him with bank robbery, in
violation of 18 U.S.C. § 2113(a), and Count III with armed bank robbery, in violation of
18 U.S.C. § 2113(d). Count IV charged a violation of 18 U.S.C. § 924(c)(1)(A)(I) for the
use of a firearm in committing a crime of violence. Barnes pled guilty to Count II,
pursuant to a plea agreement in which the Government agreed, inter alia, to dismiss the
remaining counts.

                                             3
              [U.S.S.G. §] 4A1.3 . . . warrants departure. The defendant’s
              criminal history is underrepresented even by a category VI. It
              does not adequately reflect the past criminal conduct of which
              he’s been adjudicated nor his likeliness to reoffend.
              5K2.21 also warrants departure in this case. There are
              uncharged crimes, auto theft and drug trafficking[,] that were
              not taken into consideration in the charging, as well as two
              additional bank robberies.

              I have struggled mightily with this case, Mr. Bickley [counsel
              for Barnes], in fairness to your defendant, and I can’t think of
              a single mitigating factor in his behalf that would make me
              want to sentence him to anything less than the maximum
              penalty in this case.

Barnes timely appealed to this Court. The District Court’s jurisdiction arose under 18

U.S.C. § 3231; we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(e).

                                      DISCUSSION

       We review the District Court’s findings of fact under the clearly erroneous

standard. Id. Traditionally, we have reviewed for an abuse of discretion a district court’s

decision to depart from the Sentencing Guidelines and accorded deferential review to the

degree of departure. United States v. Warren, 186 F.3d 358, 362 (3d Cir. 1999). Since

the District Court’s decision and the submission of this case for our review Congress

enacted the PROTECT Act, Pub. L. No. 108-21, § 401, 117 Stat. 650, 667 (Apr. 30,

2003), which appears to require de novo review of “the district court’s application of the

guidelines to the facts.” § 3742(e) (2003). But we need not decide which standard of

review applies to this case (and thus inferentially whether the PROTECT Act is

                                             4
retroactive), as we would affirm under either standard.

       We do so on the basis of the District Court’s decision to depart upward pursuant to

U.S.S.G. § 5K2.21 for uncharged conduct.3 Barnes makes two arguments concerning the

departure on the basis of uncharged conduct. First, he argues that the District Court

should not have relied on the uncharged crimes described in the PSR without discussion

at the sentencing hearing of those crimes or additional evidentiary basis. Second, he

contends that the degree of departure on the basis of uncharged conduct was not

warranted.4

       1. The District Court’s reliance on the uncharged conduct without additional

discussion of it was not improper. The PSR recommended an upward departure on this

ground, and Barnes had the opportunity to discuss this issue in his written objections to



   3
      Section 5K2.21 permits a court to “increase the sentence above the guideline range to
reflect the actual seriousness of the offense based on conduct (1) . . . underlying a
potential charge not pursued in the case as part of a plea agreement or for any other
reason; and (2) that did not enter into the determination of the applicable guideline
range.” Id.; see also § 1B1.4, comment. (backg’d) (“[I]f the defendant committed two
robberies, but as part of a plea negotiation entered a guilty plea to only one, the robbery
that was not taken into account by the guidelines would provide a reason for sentencing at
the top of the guideline range and may provide a reason for sentencing above the
guideline range.”).
          It is not clear to us that a departure on the ground that Barnes’ criminal history
category underrepresents his criminal history (or likelihood of recidivism) is warranted or,
if it is, the degree of departure that would be warranted. We need not decide this issue,
however, because the District Court’s departure decision is fully supported by Barnes’
uncharged conduct.
   4
   If, as we do, we reject Barnes’ first argument, he does not challenge the District
Court’s decision to depart upward, but only the degree of departure.

                                             5
the PSR and at the sentencing hearing. He chose not to do so. The Court had no duty sua

sponte to initiate discussion of the uncharged conduct in order to consider it in the

sentence imposed.

       Barnes further objects to the District Court’s reliance on the information contained

in paragraphs 18 through 23 of the PSR, which describe the two other bank robberies. In

the sentencing context, “the court may consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial, provided that the information

has sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3.

The requirement that the information have “sufficient indicia of reliability” “should be

applied rigorously.” Warren, 186 F.3d at 365. Nonetheless, that requirement is met here.

       The PSR states that Hobbs admitted that he robbed the three banks with Barnes

and Weidner and recounts specific details about the robberies. Barnes himself admitted

that he committed the robbery for which he was convicted. The modus operandi of each

of the other two robberies was notably similar to the one of conviction (the PSR further

reports that nine witnesses described one of the other robberies to the FBI). The three

robberies occurred in close temporal and geographic proximity. And although Barnes

denied in his objections to the PSR that he provided guns for the bank robberies, he has

not denied committing the other two robberies, stealing the getaway cars, or trafficking in




                                              6
drugs with the robbery proceeds.5 Indeed, Barnes admitted that he “used the money to

buy drugs.” With this context, the description of the robberies described in the PSR

contains sufficient indicia of reliability. 6

       2. Barnes further contends that the uncharged conduct did not warrant the extent

of the upward departure. The degree of departure must be “reasonable,” § 3742(e)(3),

when considered by “objective standards.” United States v. Kikumura, 918 F.2d 1084,

1110 (3d Cir. 1990). In Kikumura, we explained that where aggravating conduct would

constitute a separate offense, courts may evaluate the reasonableness of a departure “by

treating the aggravating factor as a separate crime and asking how the defendant would be

treated [under the Guidelines] if convicted of it.” Id. at 1112 (internal citation omitted).

If the District Court had not engaged in the requisite reasoning by analogy to the

Guidelines, we would ordinarily remand for application of it. Id. at 1114. But we were

“convinced beyond any doubt” that the Court would impose the same sentence if applying


   5
     In his written objections to the PSR, Barnes did not object to paragraphs 16-23. He
did, however, object generally to the PSR’s suggestion that an upward departure might be
warranted, and the United States concedes that Barnes preserved the issue on appeal.
Nonetheless, it is significant that Barnes specifically objected to the PSR’s assertion of
other alleged facts, but not to those discussed here.
   6
     To the extent that Barnes additionally argues that the uncharged conduct was not
sufficiently proved, “facts deemed relevant to a departure from the Guidelines sentencing
range generally” – and here – “need be proved only by a preponderance of the evidence.”
United States v. Baird, 109 F.3d 856, 865 n.8 (3d Cir. 1997). The District Court did not
clearly err in finding the additional robberies, car theft, and drug trafficking proved by a
preponderance of the evidence. Although the amount of drugs trafficked is arguably
insufficiently proved for sentencing purposes, we shall not rely on the drug trafficking in
upholding Barnes’ sentence.

                                                7
the proper standard. Id. Here, too, we have no doubt the District Court would reach the

same result again.

       In this context, we conclude that the District Court did not err in departing upward

from the Guidelines. For sentencing purposes, the three bank robberies would not be

grouped together. U.S.S.G. § 3D1.2(d). We consider the robbery of conviction as the

offense with the highest offense level, and so count that robbery as one unit. U.S.S.G. §

3D1.4. Because we have no reason to believe that the other two robberies are not equally

serious (or are greater than four levels less serious), each additional robbery adds another

unit. Id. When, as here, the number of units totals three, the offense level is increased by

three. Id. Increasing Barnes’s offense level (29) by three results in an offense level of 32.

Barnes’s adjusted offense level of 32 combined with a criminal history category VI yields

a custody range of 210 to 262 months. The 240 month sentence falls within this range.

       In light of the two additional robberies and Barnes’s theft of the getaway cars, we

conclude that the District Court justifiably sentenced Barnes to the statutory maximum.

                                      CONCLUSION

       The District Court did not err both in relying on the information concerning

uncharged conduct contained in the PSR and, after so doing, in departing upward to

sentence Barnes to the statutory maximum. We therefore affirm.




                                              8
TO THE CLERK:

    Please file the foregoing Opinion.


                                         By the Court,


                                         /s/ Thomas L. Ambro, Circuit Judge




                                           9
