United States v. Smith

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-4422

_____________

UNITED STATES OF AMERICA

v.

THOMAS EDWARD SMITH,

Appellant

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 4-12-cr-00228-001)

District Judge: Hon. Christopher C. Conner

_______________

Submitted Under Third Circuit LAR 34.1(a)

July 10, 2014

Before: RENDELL, CHAGARES, and JORDAN, Circuit

Judges.

(Filed: July 22, 2014)

_______________

Ronald A. Krauss

Office of Federal Public Defender

100 Chestnut Street - #306

Harrisburg, PA 17101

Counsel for Appellant

George J. Rocktashel

Office of United States Attorney

240 West Third Street - #316

Williamsport, PA 17701

Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

This is an appeal from a judgment of the United States

District Court for the Middle District of Pennsylvania

sentencing Thomas Smith to 171 months’ imprisonment for

carjacking, brandishing a firearm during a crime of violence,

and possessing a stolen firearm. For the reasons that follow,

we will affirm.

I. Background

Around noon on August 8, 2012, Smith pulled his car

off to the side of a road in Emporium, Pennsylvania,

pretending that it was disabled. He flagged down the

manager of the local Citizens & Northern Bank, Kimberlea

Whiting, who was driving home from the bank for lunch in

2

her Ford Explorer. Smith asked her for a ride to an

automobile repair shop, and she obliged. As it turned out,

Smith had been waiting for Whiting. He wanted revenge

because Citizens & Northern Bank had initiated foreclosure

proceedings on the house he shared with his girlfriend. After

a conversation concerning the foreclosure, Smith drew a gun,

which police later determined he stole from his brother-in-

law, and directed Whiting to drive to the bank, saying that she

and another bank employee were now “going to pay for”

taking his house. (PSR ¶ 7.) At first, Whiting thought Smith

was joking – she even reached for his gun – but he insisted

he was serious.

Once at the bank, Smith directed Whiting to drive to

the rear parking lot; however, Whiting continued past the lot

because she feared he would shoot and kill her there. Smith

instructed her to turn around, but, playing for time, Whiting

stopped for other vehicles and waited for an opportunity to

escape. “As she approached a convenience store, [she]

slowed down, unfastened her seat belt, and rolled [out of the

car] onto the street” without serious injury. (PSR ¶ 8.) Smith

abandoned the car after it came safely to a stop close to the

convenience store. While fleeing on foot, he also hid the gun

beside a nearby creek. He remained a fugitive until his arrest

a month later.

Following certain proceedings not relevant here, a

federal grand jury returned a three-count second superseding

indictment against Smith, charging him with carjacking, in

violation of 18 U.S.C. § 2119; brandishing a firearm during a

crime of violence, in violation of 18 U.S.C.

3

§ 924(c)(1)(A)(ii);1 and possessing a stolen firearm, in

violation of 18 U.S.C. § 922(j). Smith pleaded not guilty and

went to trial. The jury convicted him on all counts.

The U.S. Probation Office issued a Presentence

Investigation Report (“PSR”) that set forth Smith’s

recommended Sentencing Guidelines range. His base offense

level was 20, calculated from the U.S. Sentencing Guidelines

Manual (“U.S.S.G.”) § 2B3.1, for carjacking, which was his

most serious offense for purposes of grouping his crimes and

establishing a sentencing range, see U.S.S.G. § 3D1.3(a)

(advising that, for groups of closely related crimes, “the

highest offense level of the counts in the Group” applies).

The PSR also included in the calculation four enhancements,

producing a total offense level of 29. First, the PSR added

two points for bodily injury sustained by a victim, under

U.S.S.G. § 2B3.1(b)(3)(A). Second, it added four points for

the victim’s abduction, under § 2B3.1(b)(4)(A). Third, it

added two points for carjacking, under § 2B3.1(b)(5). And

fourth, it added one point for the victim’s loss, i.e., the value

of Whiting’s Ford Explorer ($26,750), under

§ 2B3.1(b)(7)(B). Combined with Smith’s criminal history

category of I, the total offense level recommended by the PSR

provided a sentencing range of 171-192 months’

imprisonment, including a mandatory, consecutive sentence

1

What appears to be a typographical error in the

second superseding indictment mistakenly attributes the

brandishing violation to 18 U.S.C. § 924(c)(1)(A)(iii), which

penalizes the discharge of a firearm. The error is of no

moment, however, because the text of the indictment clearly

sets forth, and the parties clearly understood, brandishing to

be the charged conduct.

4

of 84 months’ imprisonment for brandishing a weapon during

a crime of violence.

Before and during the sentencing hearing on

November 1, 2013, Smith objected to the offense-level

enhancements based on bodily injury, abduction, and loss.

The District Court sustained the objection to the bodily-injury

enhancement but rejected the remaining two objections. In

overruling the objection to the abduction enhancement, the

Court relied on our opinion in United States v. Reynos, 680

F.3d 283, 286-87 (3d Cir. 2012). After reviewing the record,

the Court concluded that Smith’s actions rose to the level of

abduction because (1) he pointed a gun at Whiting, thus

showing that she was “not free to refuse [his] commands”; (2)

he “forced … Whiting to move from her original location by

directing the car’s whereabouts in Emporium”; and (3)

although Whiting disobeyed him by not entering the bank

parking lot, that daring disobedience did not indicate that she

felt fully free to refuse his commands, and, in fact, she

escaped while still complying with his command to “keep

moving.” (App. at 651-52.)

Then, in overruling the loss objection, the Court found

persuasive our non-precedential decision in United States v.

Grey, in which we held that a vehicle was “taken” for

purposes of loss under § 2B3.1 when an offender exercises

temporary dominion and control over it and its contents. 369

F. App’x 331, 334 (3d Cir. 2010). The Court determined that,

although Smith abandoned the undamaged vehicle shortly

after Whiting escaped, his armed commandeering of the car

qualified for the enhancement.

5

After resolving Smith’s objections, the District Court

calculated a total offense level of 27, which, combined with a

criminal history category of I, resulted in a recommended

sentencing range of 154-171 months’ imprisonment on the

carjacking and stolen weapon counts, including the above-

mentioned mandatory, consecutive sentence of 84 months’

imprisonment on the brandishing count. After reviewing the

sentencing factors set forth in 18 U.S.C. § 3553(a), the Court

noted that “the seriousness of this offense and the fact that it

is not a mine-run carjacking but was intended to result in

some sort of twisted retribution for foreclosure proceedings

calls for a sentence at the high end of the guidelines range.”

(App. at 673.) It then imposed a sentence at the top of the

recommended range: 171 months’ imprisonment (87 months

each on carjacking and possession of a stolen weapon to be

served concurrently, along with the mandatory 84 months for

brandishing), $300 in special assessments, and a three-year

term of supervised release. Smith timely appealed the

judgment of conviction and sentence.

6

II. Discussion2

Smith argues that his sentence is procedurally

unreasonable because the District Court miscalculated his

total offense level under the Sentencing Guidelines. More

specifically, he claims the Court committed two procedural

errors: first, it wrongly concluded his crimes qualify for the

enhancement for abduction, and, second, because Whiting’s

car was not “taken, damaged, or destroyed,” as those terms

are used in § 2B3.1 of the Guidelines, the Court wrongly

applied the loss enhancement. We address each of those

arguments in turn.

A. Application of the Abduction Enhancement

Section 2B3.1(b)(4)(A) of the U.S. Sentencing

Guidelines Manual provides that, “[i]f any person was

abducted to facilitate commission of the offense or to

facilitate escape,” the defendant’s offense level is to be

increased by four points. U.S.S.G. § 2B3.1(b)(4)(A) (2012).

“‘Abducted’ means that a victim was forced to accompany an

offender to a different location. For example, a bank robber’s

2

The District Court had subject matter jurisdiction

under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28

U.S.C. § 1291. “When reviewing the sentencing decisions of

the district courts, we exercise plenary review over legal

questions about the meaning of the [S]entencing [G]uidelines,

but apply the deferential clearly erroneous standard to factual

determinations underlying their application.” United States v.

Reynos, 680 F.3d 283, 286 (3d Cir. 2012) (quoting United

States v. Collado, 975 F.2d 985, 990 (3d Cir. 1992)) (internal

quotation marks omitted).

7

forcing a bank teller from the bank into a getaway car would

constitute an abduction.” Id. § 1B1.1 cmt. n.1(A). In Reynos,

we described three predicates for applying the enhancement:

First, the robbery victims must be forced to

move from their original position; such force

being sufficient to permit a reasonable person

an inference that he or she is not at liberty to

refuse. Second, the victims must accompany

the offender to that new location. Third, the

relocation of the robbery victims must have

been to further either the commission of the

crime or the offender’s escape.

680 F.3d at 286-87.

The pertinent facts of Reynos were these: while

robbing a pizza shop, the defendant kicked in a locked

bathroom door, brandished a weapon, and forced an

employee to accompany him to a cash register 34 feet away.

Id. at 285, 290. We concluded that the defendant’s purpose in

forcing the employee’s movement was to facilitate the

commission of a robbery by compelling that employee to

provide the defendant with access to the cash register. Id. at

289. We further held that the distance of over thirty feet was

enough for the action to qualify as abduction under the

Guidelines. Id. at 291.

Although the carjacking here presents different

circumstances than those at issue in Reynos – in particular,

Whiting disregarded some of Smith’s commands and

ultimately escaped – we agree with the District Court that

Smith’s actions satisfy the Reynos predicates for finding that

8

an abduction occurred. First, Smith used force to control both

Whiting and her vehicle. He pointed a gun at her and directed

her to drive to the bank after tricking her into providing him

entry into her vehicle. In Reynos, we had “no hesitation in

concluding that the brandishing of a weapon is a use of force

for purposes of the abduction enhancement.” Id. at 288.

Smith’s use of a gun would certainly have caused any

reasonable person to believe that he or she was not at liberty

to refuse orders.

Second, Smith forced Whiting to accompany him to a

new location. While holding her at gunpoint, he ordered her

to the bank parking lot. Smith’s argument that Whiting

disobeyed his orders by stopping at stop signs and do-not-

enter signs, as well as by yielding to other cars, is of no

moment. Whiting drove back to the bank instead of to her

intended destination, her home, because Smith ordered her to

do so at gunpoint.

And third, Smith forced Whiting to return to the bank

to facilitate his threatened revenge for the foreclosure on his

home. Whether he intended to physically harm her or rob her

or make her “pay” in some other way is unclear from the

record; what is clear is that he intended to commit a crime

that would have been impossible without her presence. In

fact, Whiting’s stated motivation for escape gives a

contemporaneous view of events and buttresses the District

Court’s application of the abduction enhancement: she said

she fled because “I was not about to pull into the back of a

building where there was nobody around and allow him to

shoot me there.” (App. at 283.)

9

An important fact that distinguishes this case from

Reynos is that Smith ultimately failed in his criminal plan –

the carjacking was only a means to an intended but unrealized

crime of revenge against Whiting and her co-worker.

Another difference is that Whiting disregarded some of

Smith’s orders, which may suggest that she felt, to some

degree, “at liberty to refuse.” Smith naturally tries to use to

his advantage those distinctions from the facts in Reynos. He

invites us to fashion an exception to the abduction

enhancement for when a victim struggles with the offender to

the point that he or she thwarts the intended criminal

objective. We decline that invitation, as it is based on the

perverse logic that a victim’s boldness lessens a criminal’s

culpability. Reynos provides for an objective, not subjective,

standard in determining whether use of force was sufficient to

satisfy the first predicate. Thus, whether or not a victim

struggles or disobeys orders, as long as a reasonable person

would not have felt free to refuse the offender’s commands,

the predicate is satisfied. And, to the extent that it was not

plain from our decision in Reynos, we now explicitly hold

that the intended crime need not be accomplished for the

abduction enhancement to apply. The trial record fully

supports the District Court’s finding that Smith abducted

Whiting. We therefore conclude that Smith’s sentence was

not the result of any procedural error in applying the

abduction enhancement.

10

B. Application of the Loss Enhancement

Application Note 3 in the Commentary to Section

2B3.1 defines “loss” for purposes of robbery3 as “the value of

the property taken, damaged, or destroyed.” U.S.S.G.

§ 2B3.1 cmt. n.3. A one-point sentencing enhancement

applies if the value of the loss is more than $10,000 but less

than $50,000. Id. § 2B3.1(b)(7)(B). The parties agree that

the value of Whiting’s Ford Explorer was $26,750. The

District Court found that, although Smith did not damage or

destroy the vehicle, he “took” it when he commandeered it in

furtherance of his ultimate goal of retribution. Although

Smith was only a temporary passenger in the vehicle, as

mentioned above, the Court looked to our non-precedential

opinion in Grey, in which we stated that a robber “takes” an

object for purposes of § 2B3.1 when he exercises “dominion

and control” over it, even when he does so only temporarily.4

369 F. App’x at 333-34. The Court accordingly applied the

enhancement over Smith’s objection.

3

Chapter 103 of Title 18 of the United States Code,

titled "Robbery and Burglary,” delineates carjacking as a

form of robbery, such that the robbery guidelines are

applicable here. 18 U.S.C. § 2119; U.S.S.G. § 2B3.1(b)(5) &

cmt. n.1; see also Holloway v. United States, 526 U.S. 1, 9

(1999) (“The carjacking statute essentially is aimed at

providing a federal penalty for a particular type of robbery.”).

4

We recognize that, as a general rule, we do not cite

non-precedential opinions. See Garcia v. Att’y Gen., 553

F.3d 724, 728 n.5 (3d Cir. 2009); see also Third Circuit

Internal Operating Procedure 5.7 (indicating that non-

precedential “opinions are not regarded as precedents that

bind the court because they do not circulate to the full court

11

We agree with that decision and adopt the rule stated

in Grey that temporary takings of property may justify

application of the loss enhancement. This is in accord with

opinions from several of our sister courts of appeals. See

United States v. Allen, 516 F.3d 364, 380-81 (6th Cir. 2008)

(including property over which the defendant exercised only

temporary dominion and control in loss analysis); United

States v. Cruz-Santiago, 12 F.3d 1, 3 (1st Cir. 1993) (same);

United States v. Parker, 903 F.2d 91, 105 (2d Cir. 1990)

(same). As then-Chief Judge Stephen Breyer, writing for the

U.S. Court of Appeals for the First Circuit in Cruz-Santiago,

explained, “the Guidelines do not limit the Commentary’s

word ‘taken’ to circumstances involving a ‘permanent’

deprivation of property.” 12 F.3d at 3.

On the record before it, the District Court properly

applied the loss enhancement because Smith exercised

dominion and control, albeit temporarily, over the vehicle

when he coerced Whiting, against her will and at gunpoint, to

drive to the bank. Whiting’s later escape did not erase that

taking. Smith himself seems to acknowledge that reality,

given his approval of the jury instructions on carjacking.

Those instructions provided that “[t]o take a motor vehicle

means to acquire possession or control of the vehicle for a

period of time. The government does not have to prove that

the defendant intended to permanently deprive the owner of

possession of the vehicle.” (App. at 627.) Relying on those

instructions, the jury convicted Smith of carjacking. The

jury’s finding thus undermines Smith’s contention that he

“never exercised dominion and control over the Ford

before filing”). We cite Grey here to summarize the

foundation of the District Court’s reasoning.

12

Explorer.” (Appellant’s Opening Br. at 19.) There was

ample basis in the record to support the District Court’s

determination that Smith “took” Whiting’s vehicle, and the

application of the loss enhancement in § 2B3.1(b)(7)(A) was

procedurally sound.

III. Conclusion

For the foregoing reasons, we will affirm the judgment

of conviction and sentence.

13