                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-4217


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ERNEST LEE WILLIAMS, JR., a/k/a Big Cat,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Malcolm J. Howard,
Senior District Judge. (5:14-cr-00173-H-1)


Argued:   September 23, 2016                Decided:   November 10, 2016


Before TRAXLER, SHEDD, and FLOYD, Circuit Judges.


Vacated and remanded by published opinion.     Judge Floyd wrote
the opinion, in which Judge Traxler and Judge Shedd joined.


ARGUED: Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.         Donald
Russell Pender, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.     ON BRIEF: Thomas P. McNamara,
Federal Public Defender, Stephen C. Gordon, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
FLOYD, Circuit Judge:

      Ernest Lee Williams, Jr., was charged with attempting to

enter a bank with the intent to commit a felony affecting it,

and   a    larceny,    all    in    violation    of    18   U.S.C.      §   2113(a).

Williams pleaded guilty to the charge, and was then sentenced

under the robbery guideline, U.S.S.G § 2B3.1.                    Williams appeals

his sentence, arguing that the robbery guideline is inapplicable

in this case because his indictment contained no mention of the

robbery     element     of    force     and     violence,       intimidation,     or

extortion.     We agree with Williams, and we therefore vacate his

sentence and remand this matter for resentencing.

                                        I.

      On January 21, 2014, Williams approached a Southern Bank

building    (the    “Bank")    in   Rocky     Mount,   North     Carolina,     while

wearing    gloves     and    covering   his    face    in   a   hood.       Williams

entered the Bank’s exterior doors into an anteroom, but before

he could enter past the interior doors, a teller who believed

she recognized Williams from a previous robbery locked both the

interior and exterior doors.              The teller then asked Williams

through an intercom whether Williams had an account with the

Bank, and Williams replied that he did, but that he had left his

bank card in his car.           The teller unlocked the exterior doors,

and instructed Williams to use the drive-up window.                         Williams

returned to his car, but then drove off.

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     The     police    were     notified       and     given    a    description      of

Williams’s     vehicle.         The     police       stopped     Williams      shortly

thereafter, and in a show-up, Williams was identified by a Bank

employee as the person who had tried to enter earlier.                              After

being read his rights, Williams admitted to the police that --

in need of money -- he cased the Bank, and then wore gloves and

covered part of his face.             He had neither a gun nor a note with

him when he tried to enter the Bank.                   Williams insisted that he

had simply planned to tell the bank tellers to put the Bank’s

money in his bag.

     On August 27, 2014, a federal grand jury in the Eastern

District of North Carolina indicted Williams for violating 18

U.S.C. § 2113(a).          In   relevant       part,    the    grand   jury    charged

Williams   with   “attempt[ing]         to     enter    a     bank . . .      with   the

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

violation of a statute of the United States, and a larceny, all

in violation of Title 18, United States Code, Section 2113(a).”

J.A. 7.      On January 6, 2015, Williams pleaded guilty to the

charge.

     Violations       of   § 2113(a)     are    potentially         covered    by    four

Sentencing Guideline sections -- of relevance here are U.S.S.G.




                                         3
§ 2B3.1 (Robbery) and § 2B2.1 (Burglary). 1          Following the plea,

the probation officer calculated Williams’s imprisonment range

under the Guidelines by using the robbery guideline, U.S.S.G.

§ 2B3.1.       Specifically,   the       probation   officer   calculated

Williams’s imprisonment range at 37 to 46 months.              This range

derived from a total offense level of 19 and a criminal history

category of III.    Section 2B3.1 provided a base offense level of

20, which was increased by two levels because Williams’s crime

targeted a financial institution.           See U.S.S.G § 2B3.1(b)(1).

The resulting offense level of 22 was then reduced by three

levels for acceptance of responsibility, resulting in a final

offense level of 19.

     Williams objected to the application of U.S.S.G. § 2B3.1 to

his offense.    Williams contended that the indictment to which he

pleaded guilty described an attempted burglary, not an attempted

robbery, because it did not reference force or violence.            Thus,

as between the two relevant guidelines that could apply to a

violation of § 2113(a) –- the robbery guideline and the burglary

guideline -- Williams insisted that he should be sentenced under

the latter.     Williams reasoned that if the burglary guideline

     1 A violation of § 2113(a) may also implicate U.S.S.G.
§ 2B3.2 (Extortion by Force or Threat of Injury or Serious
Damage) or U.S.S.G § 2B1.1 (Larceny, Embezzlement, and Other
Forms of Theft). See U.S.S.G. App’x A. Both parties, however,
agree that neither guideline applies in this case.



                                     4
was used, his total offense level would be 10, which in this

case would yield an imprisonment range of only 10 to 16 months.

       The   probation     officer,     meanwhile,          contended    that    the

robbery guideline applied in this case, because it -- unlike the

burglary guideline -- contained an enhancement accounting for

the fact that Williams targeted a financial institution.

       On April 8, 2015, Williams’s sentencing hearing took place.

After   hearing   both     sides’     arguments,      the    district    court   was

convinced that the robbery guideline was appropriate in this

case    because    it      addressed         the     targeting    of     financial

institutions.     The district court found Williams’s imprisonment

range under the robbery guideline to be 37 to 46 months, and

sentenced him to a term of 38 months.                This appeal followed.

                                        II.

       On appeal, Williams contends that his sentence should have

been calculated using the burglary guideline, rather than the

robbery guideline.        We review challenges to the district court’s

guideline selection de novo.            United States v. Davis, 202 F.3d

212, 218 (4th Cir. 2000).              We agree with Williams that the

district     court’s      selection     of     the     robbery    guideline      was

erroneous, because only the burglary guideline applies here.

                                        A.

       The   Sentencing    Guidelines        direct    a    sentencing   court    to

“[d]etermine the offense guideline section . . . applicable to

                                         5
the   offense of       conviction.”             U.S.S.G.     § 1B1.2(a).           At    times,

however, “the offense of conviction ‘appears to fall under the

express terms of more than one guideline[.]’”                             United States v.

Boulware, 604 F.3d 832, 836 (4th Cir. 2010) (brackets omitted)

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

1993)).     In such cases, “the sentencing court must choose the

guideline that is ‘most applicable’ by comparing the guideline

texts    with    the       charged    misconduct,          rather       than   the      statute

(which    may    outlaw       a    variety       of   conduct       implicating         several

guidelines) or the actual conduct (which may include factors not

elements    of       the    indicted       offense).”           Id.      (emphasis       added)

(internal       quotation          marks     and      brackets          omitted)     (quoting

Lambert, 994 F.2d at 1092).

      The   charge          that     Williams         pleaded       guilty     to       plainly

describes       an    attempted       burglary,        not    an    attempted        robbery.

Williams    was       charged       with    a    violation         of    § 2113(a),       which

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 . . .


                                                6
       and in violation of any statute of the United States,
       or any larceny--

       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

[and       violence],   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.”                      United States

v. Almeida, 710 F.3d 437, 440 (1st Cir. 2013) (emphasis added).

       Williams was indicted for attempting to enter a bank with

an intent to commit a felony and larceny therein -- i.e., a bank

burglary.       Moreover, his indictment failed to reference “the

element of ‘force and violence, or [extortion or] intimidation’

which      is   required    for    conviction         of   bank    robbery”     under

§ 2113(a).      United States v. Ketchum, 550 F.3d 363, 365 n.1 (4th

Cir. 2008) (quoting United States v. Carter, 540 F.2d 753, 754

(4th Cir. 1976)).          Therefore, when one compares the applicable

burglary and robbery guidelines with the language of Williams’s

indictment, it is clear that Williams should have been sentenced

under the burglary guideline. 2



       2
       Cf. Almeida, 710 F.3d at 439–43 (vacating a § 2113(a)-
defendant’s sentence under the robbery guideline, because the
district court did not exclusively consider the indictment
(Continued)
                                         7
                                         B.

      In    selecting     the     robbery      guideline    over    the     burglary

guideline, the district court stressed that only the robbery

guideline     contained      an    enhancement        for    the    targeting     of

financial     institutions      (the    “Bank    Enhancement”)      like    the   one

Williams targeted.         The government defends this selection by

citing two unpublished Fourth Circuit cases that justified the

use of the robbery guideline for a § 2113(a) violation on the

basis of the Bank Enhancement:                United States v. Sutton, 401 F.

App’x 845 (4th Cir. 2010) (per curiam), and United States v.

Johnson, 68 F. App’x 402 (4th Cir. 2003) (per curiam).                       Because

those cases do not justify imposing a robbery guideline-based

sentence on a defendant that only pleaded guilty to an attempted

burglary, the district court’s selection was erroneous.

      To begin, Johnson is distinguishable.                   Johnson held that

where an indictment for violating § 2113(a) charges an attempt

to   obtain    property    from     a   bank    via    extortion,    the     robbery

guideline     is   more   appropriate         than    the   extortion      guideline

because only the robbery guideline “permits an enhancement for

attempting to obtain money from a bank.”                    68 F. App’x at 405.




language that “tracked that of § 2113(a)’s bank burglary prong,”
but  instead   improperly   considered  trial   testimony “which
described conduct that amounted to bank robbery, i.e., taking
from a bank by force, violence, or intimidation”).


                                         8
In Johnson, however, the indictment charged the elements of both

robbery and extortion, id., and so the Bank Enhancement merely

functioned as a sensible tie-breaker between the robbery and

extortion guidelines.       In contrast, only the burglary guideline

applies in this case, because Williams’s indictment omits the

robbery   element     of    force     and    violence,      intimidation,      or

extortion.     As   such,    Johnson       provides   no    sanction   for    the

district court’s use of the inapplicable robbery guideline.

     Sutton    is   distinguishable        for    similar   reasons.     As   in

Johnson, a panel of this Court in Sutton relied on the Bank

Enhancement    in    selecting       the    robbery     guideline      over    an

alternative    guideline     (there,        the    burglary    guideline)     to

sentence a defendant convicted of violating § 2113(a).                  Sutton,

401 F. App’x at 847–48.       But as in Johnson, the panel in Sutton

was satisfied that the indictment at issue actually described

“robberies.”    Id. at 848.         Because Williams’s indictment cannot

be read to describe even an attempted robbery, the government’s

reliance on Sutton here is misplaced. 3


     3 We acknowledge, however, that the panel in Sutton may have
incorrectly characterized the indictment at issue as describing
“robberies.”    In the paraphrased version of the indictment
offered in the Sutton opinion, there was no reference to the
robbery element of force and violence, intimidation, or
extortion.   See 401 F. App’x at 847 (“[T]he indictment charged
Fields and his codefendants with breaking into and stealing
United States currency from automated teller machines containing
‘money in the care, custody[,] and control of Lumbee Guaranty
(Continued)
                                       9
                                          C.

       In this case, the precedent we find most instructive is

this     Court’s   published      decision     in    Boulware.          There,    the

indictment charged the defendant with making a false statement

to a bankruptcy court via nondisclosure of prior bankruptcies;

however, the indictment did not charge that the nondisclosure

was part of a plan to defraud creditors.                  Boulware, 604 F.3d at

835-36.     This Court reasoned that the perjury guideline should

apply,    rather    than    the   fraud    guideline,      because      the    perjury

guideline best fit the offense described in the indictment.                       Id.

at 836.        It so held despite the objecting party’s observation

that     the     fraud     guideline      contained       a     specific       offense

characteristic      referencing      bankruptcy       proceedings,       while    the

perjury guideline lacked any analogous provision.                        Id.      This

Court     dismissed        that   observation        as       being   “of      little

consequence,” reasoning that the fraud guideline was unfitting

where    “the    gravamen    of   the   charge      was   that   [the    defendant]




Bank, a bank whose deposits were then insured by the Federal
Deposit Insurance Corporation,’ in violation of 18 U.S.C.
§ 2113(a).”). To the extent that the unpublished Sutton opinion
implies that the element of force and violence, intimidation, or
extortion is unnecessary to describe a robbery, we expressly
reject that position, for it is contrary to well-settled law.
See Ketchum, 550 F.3d at 365 n.1; Carter, 540 F.2d at 754; see
also Almeida, 710 F.3d at 440—41.


                                          10
interfered     with     the     bankruptcy         court’s      administration       of

justice, not that she defrauded any creditors.”                      Id.

      Likewise,       the     robbery      guideline’s         use     of     the   Bank

Enhancement is of little consequence here, because the gravamen

of Williams’s charge was that he attempted to commit a burglary,

not a robbery.        Simply put, where an indictment omits an element

of an offense, the guideline corresponding to that offense is

inapplicable, even if the alternative guideline’s provisions do

not account for certain details that the indictment charges.

      Nonetheless, we do not consider whether the absence of a

potentially    relevant       provision         (here,   the     Bank       Enhancement)

under the correct guideline justifies a variance at sentencing.

We leave that issue for the district court to address on remand

in the first instance.

                                          III.

      For the foregoing reasons, we vacate Williams’s sentence,

and   remand   this    case    to   the    district      court       for    resentencing

under the burglary guideline.

                                                               VACATED AND REMANDED




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