Court of Appeals Holds Judge Erred In Relying On A Robbery Guideline In Sentencing A Defendant Found Guilty Of Bank Burglary

March 26, 2013
By Parker Scheer LLP on March 26, 2013 10:31 AM |

The 1st U.S. Circuit Court of Appeals has ruled that a District Court judge erred when he relied on a robbery guideline in sentencing a defendant found guilty of burglarizing a bank. United States v. Almeida.

Daniel Almeida was convicted of bank robbery. For sentencing, a probation officer prepared a pre-sentence report, or PSR, which gave the sentencing guideline for robbery a base offense level of 20. U.S.S.G. §2B3.1. 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.

The defendant argued this guideline was inappropriate because he was convicted of burglary, not robbery, which required only entry into the bank and not violence or intimidation. The guideline for burglary had different and lesser enhancements.

The government argued that the judge had the leeway to apply a guideline "that most closely captured the defendant's conduct" based on the evidence presented regardless of what the defendant was convicted of. The judge then determined that the appropriate guideline was §2B3.1, the robbery guideline, "because, based upon the evidence as the Court heard it" a robbery, and not just a burglary, had occurred. This resulted in a total offense level of 32, and a guideline range of 151 to 188 months. Almedia was sentenced to 151 months in prison and three years of supervised release.

The Court of Appeals noted that while there was evidence presented that Almeida robbed, and not just burglarized the bank, the language in "the indictment did not allege the use of force, violence, or intimidation, [i]nstead, 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.'"

Case remanded for resentencing.

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