          United States Court of Appeals
                     For the First Circuit

No. 11-1267


                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         DANIEL ALMEIDA,

                      Defendant, Appellant.




          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]




                             Before

                       Lynch, Chief Judge,
              Torruella and Stahl, Circuit Judges.




     Barbara J. Sweeney for appellant.
     Robert E. Richardson, Assistant United States Attorney, with
whom Carmen Ortiz, United States Attorney, was on brief, for
appellee.



                         March 11, 2013
           STAHL, Circuit Judge.     Daniel Almeida was indicted and

tried for bank burglary under 18 U.S.C. § 2113(a).        The jury found

him guilty.   On the basis of the evidence adduced at trial, the

district court applied a sentencing guideline intended for cases of

robbery, rather than the burglary guideline Almeida proposed.           The

resulting sentence was roughly twice what it would have been under

the burglary guideline. Almeida now appeals that sentence, arguing

that it was unconstitutional for the district court to sentence him

under a guideline intended for robbery, given the government's

failure to charge, try, and convict him under that theory of his

crime.   Without reaching Almeida's constitutional claim, we remand

for resentencing because, under application note 1 to U.S.S.G.

§ 1B1.2 and the introduction to the guidelines' Statutory Appendix,

where the guidelines specify more than one offense guideline for a

particular statutory offense and no plea agreement stipulates to a

more serious offense, the district court must select the most

appropriate   guideline    based   only   on   conduct   charged   in   the

indictment.

                      I.    Facts & Background

           On May 26, 2007, $308,505 in cash was stolen from the

East Cambridge Savings Bank on Highland Avenue in Somerville,

Massachusetts.   The record reveals two rather different stories

about how this happened. In one telling, Almeida forced the bank's

head teller, Jennifer McNamara (then Jennifer DaSilva), to open the


                                   -2-
bank vault at gunpoint, and then tied her to a chair and absconded

in her car with the money.          In the other version of events, the

heist was an inside job: McNamara was only pretending to be

coerced, and actually planned the theft with Almeida and Jean

Thermitus, a fellow bank employee with whom she was having an

affair.

          On    July   9,   2008,   a    federal    grand   jury   returned    an

indictment charging Almeida with "enter[ing] and attempt[ing] to

enter a bank, to wit, the East Cambridge Savings Bank . . . with

intent to commit in such bank a felony affecting such bank in

violation of a statu[t]e of the United States and a larceny" in

violation of 18 U.S.C. § 2113(a).             At Almeida's subsequent trial,

the jury heard testimony supporting both accounts of the heist.

McNamara testified that, two days before the theft, her husband

kicked her out; the next day, she went to stay with Thermitus.                The

night before the theft, she stopped at a liquor store to make some

purchases; when she got back in the car, a man got in the back seat

and put what felt like a gun to her head.               He told her that an

accomplice had her children and made her surrender her purse and

cell phone.    He initially wanted McNamara to take him directly to

the bank, but, upon hearing that she could not access the vault

until morning, made her spend the night in the car.                     In the

morning, they drove to the bank, where she disarmed the alarm and

let him in.    He had her put tape over the lens of a security camera


                                        -3-
and put cash from the vault into two large bags.              He then taped her

to a chair and left.

           Amine   Maach,     a   friend   of   Almeida's,     testified   that

Almeida had admitted his involvement in the theft to Maach a few

weeks after it happened. According to Maach, however, Almeida said

that "Jean" (Thermitus) and "the lady, the bank teller" (McNamara,

apparently) had planned the heist; the teller was only "act[ing]

like" she had been kidnapped.        Almeida told Maach that he met the

teller the night before the theft, drove around until morning, and

then entered the bank with her, tied her up, and took the money.

           The jury also heard testimony that Almeida's involvement,

whether as kidnapper or coconspirator, was supported by telephone

records and DNA evidence taken from the crime scene and McNamara's

car (which was recovered near Almeida's house).                 In its closing

argument, the government relied on this evidence and McNamara's

testimony to argue that Almeida "entered th[e] bank on the morning

of May 26, 2007 . . . with at least the intent to commit a larceny

in the bank."    The government also argued at length that McNamara

was   credible   and   that   her   version     of   events    was   accurate.

Nevertheless, the government said:

           [Almeida] claimed it was an inside job.     I
           suggest to you it wasn't as far as [McNamara]
           was concerned. . . . I suggest to you [the
           evidence] doesn't show she was [involved].
           But even if she was, it doesn't matter.
           Whether she actually was in fear of her own
           life and her kids' lives or whether she was
           somehow a part of this, it doesn't change the

                                     -4-
          evidence against this defendant. It doesn't
          change the evidence showing beyond any
          reasonable doubt that he entered the bank that
          day and that he did so with the intent to
          commit a larceny. And whether she's part of
          it or not part of it, the evidence still shows
          beyond any reasonable doubt that that is the
          case.

The government's argument was consistent with the language of the

indictment (described above).    The jury found Almeida guilty.

          In preparation for sentencing, the Probation Officer

prepared a presentence report (PSR) that identified the applicable

sentencing guideline as U.S.S.G. § 2B3.1, the "robbery" guideline,

with a base offense level of twenty.    See id. § 2B3.1(a). Pursuant

to that guideline, the PSR recommended enhancements for taking the

property of a financial institution (two levels), brandishing a

weapon (three levels), abducting a person to facilitate the offense

(four levels), and taking more than $250,000 but less than $800,000

(three levels).   Both the choice of the robbery guideline and the

application of the brandishing and abduction enhancements were

clearly based on McNamara's version of events.           Almeida and the

government submitted sentencing memoranda; Almeida's objected to

the base offense level and enhancements recommended in the PSR.

          At   sentencing,   Almeida   explained   the   basis   for   his

objections, arguing that the government could have chosen to indict

and try him for robbery, but did not; it chose to proceed under a

burglary theory (which required only entry into the bank and not

violence or intimidation), making the imposition of a longer

                                 -5-
sentence for robbery inappropriate.                  Thus, Almeida contended that

the burglary guideline, U.S.S.G. § 2B2.1, along with its different

(and lesser) enhancements, should apply.                   The government responded

that the court was allowed to apply the guideline "that most

closely captures the defendant's conduct," and argued in the

alternative that the court should vary the sentence upward from the

burglary     guideline        range     anyway.           After    considering    these

arguments,       the    district      court   concluded       that    the    appropriate

guideline was § 2B3.1, the robbery guideline, "because, based upon

the   evidence         as   the    Court    heard    it"    --     namely,   McNamara's

testimony, which the court found credible -- "at least . . . a

preponderance of the evidence . . . [showed that] there was a

robbery involved here." Accordingly, the court applied the robbery

guideline and the four recommended enhancements, resulting in a

total offense level of thirty-two; with criminal history, the

guideline range was 151 to 188 months.                     The court, acknowledging

that Almeida's sentence under the burglary guideline "would be

about half of" the sentence under the robbery guideline, sentenced

him   to   151    months'         imprisonment      and    three    years'   supervised

release.    This appeal followed.

                                      II.   Analysis

            We review the district court's choice of guidelines in

this case de novo, and its attendant factual determinations for




                                            -6-
clear error.       United States v. Rodríguez-Adorno, 695 F.3d 32, 43

(1st Cir. 2012).1

               The issue presented by Almeida's appeal -- whether, after

being convicted of violating 18 U.S.C. § 2113(a) in the manner

alleged in the indictment, he could be sentenced under the robbery

guideline (U.S.S.G. § 2B3.1) instead of the burglary guideline

(U.S.S.G. § 2B2.1) -- arises from the interaction of two facts:

that subsection 2113(a) can be violated in two markedly different

ways,    and    that   multiple   sentencing   guidelines   can   apply   to

convictions under that provision. To illustrate the impact of this

interaction on Almeida's sentence, we lay out the relevant language

in the statute and the guidelines.

               Subsection 2113(a) provides:

               Whoever, by force and violence, or by
               intimidation, takes, or attempts to take, from
               the person or presence of another, or obtains
               or attempts to obtain by extortion any
               property or money or any other thing of value
               belonging to, or in the care, custody,
               control, management, or possession of, any
               bank . . . ; or

               Whoever enters or attempts to enter any bank,
               . . . , or any building used in whole or in
               part as a bank . . . , with intent to commit
               in such bank . . . , or part thereof, so used,
               any felony affecting such bank, . . . and in
               violation of any statute of the United States,
               or any larceny--



     1
          The district court pointed out at sentencing that Almeida
had not filed formal objections to the PSR, but it treated his
sentencing memoranda as objections thereto.

                                     -7-
          Shall be fined under this title or imprisoned
          not more than twenty years, or both.

18 U.S.C. § 2113(a).    As its text makes clear, subsection 2113(a)

can be violated in two distinct ways: (1) bank robbery, which

involves taking or attempting to take from a bank by force,

intimidation, or extortion; and (2) bank burglary, which simply

involves entry or attempted entry into a bank with the intent to

commit a crime therein.      (In either case, the bank must have been

federally insured, United States v. Judkins, 267 F.3d 22, 23 (1st

Cir. 2001), which was undisputedly true here.)

          Presumably because subsection 2113(a) covers a variety of

conduct, the sentencing guidelines' Statutory Appendix lists four

guidelines   sections   as   potentially   applicable   to   a   violation

thereof, two of which are the burglary (§ 2B2.1) and robbery

(§ 2B3.1) guidelines discussed above.2      See U.S.S.G. App'x A.      In

this situation, the guidelines instruct the sentencing court to

"determine which of the referenced guideline sections is most

appropriate for the offense conduct charged in the count of which

the defendant was convicted."      Id. § 1B1.2 cmt. n.1; accord id.

App'x A, intro.




     2
          The other two listed guidelines, which neither party
suggests should apply here, are U.S.S.G. § 2B1.1, which reaches
"Larceny, Embezzlement, and Other Forms of Theft," and U.S.S.G.
§ 2B3.2, which covers "Extortion by Force or Threat of Injury or
Serious Damage." Id. App'x A.

                                   -8-
           The    gist    of     this structure     is    that    a    violation        of

subsection 2113(a) can be accomplished in two ways and punished in

four ways (only two of which, burglary and robbery, are relevant

here).    In     this    case,    the   district   court    chose          the    robbery

guideline instead of the burglary guideline because it credited

McNamara's trial testimony, which described conduct that amounted

to bank robbery, i.e., taking from a bank by force, violence, or

intimidation.     The indictment, however, did not allege the use of

force, violence, or intimidation.               Instead, the language of the

indictment's     sole     count    closely      tracked    that       of    subsection

2113(a)'s bank burglary prong, alleging that Almeida "did enter and

attempt to enter a bank, to wit, the East Cambridge Savings Bank

. . . with intent to commit in such bank a felony affecting such

bank in violation of a statute of the United States and a larceny."

Thus, as the government acknowledged at trial, the jury could have

convicted Almeida of violating subsection 2113(a) in the manner

charged   in   the      indictment,     i.e.,   bank     burglary,         even    if   it

disbelieved McNamara's testimony that she was held at gunpoint.

According to Almeida, this outcome violates the constitutional

principle that "every defendant has the right to insist that the

prosecutor prove to a jury all facts legally essential to the

punishment."      Blakely v. Washington, 542 U.S. 296, 313 (2004)

(emphasis omitted).




                                        -9-
          We need not reach Almeida's constitutional argument.

Instead, we hold that application note 1 to U.S.S.G. § 1B1.2 and

the introduction to the guidelines' Statutory Appendix required the

district court in this case to select the applicable guideline

based only on conduct charged in the indictment.   As noted above,

application note 1 provides for cases where, as here, the Statutory

Index lists more than one guideline for a given offense, and the

defendant has not stipulated in a plea agreement to an offense more

serious than the offense of conviction.   It reads:

          In the case of a particular statute that
          proscribes a variety of conduct that might
          constitute the subject of different offense
          guidelines, the Statutory Index may specify
          more than one offense guideline for that
          particular statute, and the court will
          determine which of the referenced guideline
          sections is most appropriate for the offense
          conduct charged in the count of which the
          defendant was convicted.

Id. § 1B1.2 cmt. n.1 (emphasis added).3   The introduction to the

Statutory Appendix contains the same instruction: "If more than one

guideline section is referenced for the particular statute, use the

guideline most appropriate for the offense conduct charged in the

count of which the defendant was convicted."   Id. App'x A, intro.


     3
          "The Sentencing Commission's commentary, including the
application notes, is binding on the courts as long as it does not
conflict either with the sentencing guidelines themselves or with
some statutory provision." United States v. Carrasco-Mateo, 389
F.3d 239, 244 (1st Cir. 2004); see also United States v. Paneto,
661 F.3d 709, 717 (1st Cir. 2011).        We interpret guidelines
commentary "using conventional methods of statutory construction."
United States v. Damon, 595 F.3d 395, 400 n.3 (1st Cir. 2010).

                               -10-
The natural reading of these provisions is that, when selecting the

"most appropriate" guideline, the sentencing court should look to

the conduct alleged in the indictment, and not to uncharged conduct

described in trial testimony.   Cf. United States v. Bah, 439 F.3d

423, 427 (8th Cir. 2006) (holding that a "plain reading" of the

phrase "the conduct set forth in the count of conviction" as used

in U.S.S.G. § 2B1.1(c)(3) requires the sentencing court to look

only to the conduct alleged in the indictment).        Indeed, § 1B1.2

itself uses the same phrase in this manner, calling for the

sentencing court to determine the guideline "applicable to the

offense of conviction (i.e., the offense conduct charged in the

count of the indictment or information of which the defendant was

convicted)."   U.S.S.G. § 1B1.2(a).

          In fact, the principal case on which the government

relies illustrates that the language of the indictment is the

proper basis for the most-appropriate-guideline determination.      In

United States v. Sutton, 401 F. App'x 845 (4th Cir. 2010) (per

curiam), the defendants were, like Almeida, convicted of violating

subsection 2113(a) (although, unlike Almeida, they pled guilty).

One of the defendants argued, as Almeida does here, that the

district court erred in applying U.S.S.G. § 2B3.1 (robbery) rather

than U.S.S.G. § 2B2.1 (burglary).      Id. at 847.   The Fourth Circuit

explained that, in selecting the appropriate guideline, "the court

'should compare the [g]uideline texts with the charged misconduct,


                                -11-
rather than the statute (which may outlaw a variety of conduct

implicating several [g]uidelines) or the actual conduct (which may

include factors not elements of the indicted offense).'"               Id.

(quoting United States v. Lambert, 994 F.2d 1088, 1092 (4th Cir.

1993)).   Accordingly, the Sutton court went on to identify the

applicable guideline by examining the language of the indictment.

See id. at 847-48; see also United States v. Lewis, 161 F. App'x

322, 324 (4th Cir. 2006) (per curiam) (where the Statutory Index

identified more than one applicable guideline, the court conducted

"a comparison of the charged misconduct as described on the face of

the indictment with the guidelines," and rejected arguments based

on conduct not described in the indictment (emphasis added));

United States v. Johnson, 68 F. App'x 402, 405 (4th Cir. 2003) (per

curiam) (similar).4

              Consequently, we think it clear that the district court

erred by selecting the guideline applicable to Almeida's crime on

the   basis    of   conduct   not   alleged   in   the   indictment.   This

conclusion is bolstered by the fact that courts have consistently

read similar guidelines provisions to require that, "to the extent



      4
          Not every case to apply the most-appropriate-guideline
language has limited the inquiry to the conduct described in the
indictment, but those cases that have also looked to trial evidence
have not explained why doing so is authorized by the guidelines.
See United States v. Belfast, 611 F.3d 783, 825 (11th Cir. 2010)
(focusing on the conduct alleged in the indictment but also
discussing trial evidence); United States v. Valladares, 544 F.3d
1257, 1266 (11th Cir. 2008) (considering trial evidence).

                                     -12-
the court is required to look to the facts to select a guideline,

the court is limited to the conduct charged in the indictment."

United     States    v.    McEnry,   659   F.3d    893,    899    (9th   Cir.   2011)

(applying U.S.S.G. § 2X5.1's "most analogous guideline" language);

see also, e.g., United States v. Takahashi, 205 F.3d 1161, 1166

(9th Cir. 2000) (interpreting the "most applicable" guideline

language in the pre-2000 version of § 1B1.2); United States v.

Jackson, 117        F.3d   533,   538   (11th     Cir.    1997)   (construing     the

Statutory Index's now-defunct "atypical case" language).                        These

examples reflect the principle that, absent a stipulation or cross-

reference, "a sentencing court must, as required by [U.S.S.G.

§ 1B1.2](a), consider only 'the offense conduct charged in the

count of the indictment or information of which the defendant was

convicted' when making the choice-of-guideline determination."

Thomas W. Hutchison, et al., Federal Sentencing Law & Practice,

§ 1B1.2, cmt. (3)(a) (2013 ed.) (emphasis added) (quoting U.S.S.G.

§ 1B1.2(a)).        To hold otherwise "would effectively undercut the

real offense/charge offense compromise struck by the Commission."

Id.5




       5
          As this discussion should make clear, we do not take
issue with the government's assertion that, when selecting the
"most appropriate" guideline, the sentencing court may "look beyond
the name of the charged offense"; that much is certainly true. We
part ways with the government only insofar as it contends that the
court may consider "underlying" conduct not alleged in the count of
the indictment of which the defendant was convicted.

                                        -13-
          Because the parties have not briefed the question of

which guideline applies under the proper standard, we believe the

most prudent course is to remand to the district court to consider

that question in the first instance.       In doing so, the district

court should compare the guidelines listed in the Statutory Index

as potentially applicable to subsection 2113(a) with "the charged

misconduct as described on the face of the indictment." Lewis, 161

F. App'x at 324.     Where "[n]either the text of the [guideline]

section nor its accompanying commentary offers further information

as to the types of conduct covered by the section," the district

court   may   "presume   that   [the]     common   understanding   of

the[ specified] crimes applies."       United States v. Dion, 32 F.3d

1147, 1149 (7th Cir. 1994) (finding that the defendant's "conduct

fit[] a common definition of embezzlement"); cf. Hutchison, et al.,

supra, § 2B2.1, cmt. 5 (discussing "the common-law definition of

burglary" and "the generic, contemporary meaning of burglary" in

determining what conduct lies within the heartland of § 2B2.1

(internal quotation marks omitted)).

          In closing, we note that our reasoning is limited to the

question of what conduct a court may consider in determining the

"most appropriate" guideline pursuant to application note 1 to

§ 1B1.2 (or the identical language in the Statutory Appendix's

introduction).     As noted above, we do not consider Almeida's

constitutional argument.    We also do not consider whether the


                                -14-
district court could have departed upward to reach the same result

even   if   the   robbery   guideline   did   not   apply;   although   the

government said so below, it has not pressed the point on appeal.

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

                            III.   Conclusion

            For the foregoing reasons, we vacate Almeida's sentence

and remand this case to the district court for resentencing.




                                   -15-
