Opinion
10 Cr. 184-02 (RWS).
October 15, 2010
SENTENCING OPINION
On June 10, 2010, Joseph B. Edwards ("Edwards" or "Defendant") pleaded guilty to one count of bank robbery and two counts of attempted bank robbery, in violation of 18 U.S.C. § 2113(a). For the reasons set forth below, Edwards will be sentenced to 170 months' imprisonment to be followed by 3 years' supervised release. Edwards will also be required to pay restitution of $12,500 and a special assessment of $300.
Prior Proceedings
On March 5, 2010, Indictment 10 CR 184 (RWS) was filed in the Southern District of New York. Count One charges that on October 27, 2009, in the Southern District of New York, Edwards and Samuel Corbett ("Corbett") stole United States currency from a branch of Chase Bank located at 1051 Westchester Avenue, Bronx, New York, in violation of 18 U.S.C. § 2113(a). Counts Two and Three charge that on October 30, 2009, Edwards and Corbett attempted to steal United States currency from branches of Chase Bank, respectively located at 1650 E. Gun Hill Road, Bronx, New York, and 75 East 161st Street, Bronx, New York.
On June 10, 2010, Edwards appeared before this Court and pleaded guilty as charged without the benefit of a plea agreement.
Edwards' sentencing is currently scheduled for October 19, 2010.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a), including the advisory Guidelines. Thus, the sentence to be imposed here is the result of a consideration of:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.18 U.S.C. § 3553(a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See Crosby, 397 F.3d at 114-15.
In light of the Court's statutory responsibility "to `impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing," Kimbrough v. United States, 552 U.S. 85, 102 (2007) (quoting 18 U.S.C. § 3553(a)), and having considered the Guidelines and all of the factors set forth in § 3553(a), it is determined that a Guidelines sentence is warranted in the instant case.
The Defendant
The Court adopts the facts set forth in the Presentence Investigation Report ("PSR") with respect to Edwards' personal and family history.
The Offense Conduct
The following description draws from the PSR. The specific facts of the underlying conduct are adopted as set forth in that report.
At 11:15 a.m. on October 30, 2009, Corbett entered the branch of Chase Bank located at 75 East 161st Street in the Bronx, New York, approached a teller and handed her a note that read, "Put 40 thousand $in the bag or I'll start shooting. No games. Don't make the news!"
The teller activated a panic alarm and left Corbett at the teller window. Corbett then fled the premises. Two NYPD officers observed Corbett exiting the bank and grew suspicious when Corbett appeared to pull a mask down over his face. One officer ("Officer 1") entered the bank and learned of the attempted robbery, while a second officer ("Officer 2") followed Corbett to a nearby maroon Chevrolet Impala.
As Corbett entered the Impala, Officer 2 observed at least three other individuals inside the vehicle. Officer 2 approached the vehicle with his weapon drawn, identified himself as a police officers, and instructed the occupants of the vehicle not to move. Corbett made a movement, which Officer 2 perceived as Corbett's raising a firearm, prompting Officer 2 to fire his weapon, striking the side of the vehicle. The vehicle then drove away. There is no evidence that Corbett actually possessed a firearm during the bank robberies or inside the vehicle.
Within hours, NYPD officers had tracked down the vehicle in a parking lot in the vicinity of East 165th Street in the Bronx. Officers positively identified the vehicle by the bullet hole in its side, where Officer 2 had shot it. The vehicle was empty when located, but officers ran a check on the license plate, which revealed that the vehicle was registered to Edwards. Law-enforcement officers proceeded to the address associated with Edwards and met him there.
After being advised of his Miranda rights, Edwards made and signed a written statement in which he declared that he and three other members of a bank-robbery crew (Corbett and two Cooperating Conspirators ("CC-1" and "CC-2")) attempted to rob the Chase Bank located at 75 East 161st Street on October 30, 2009. Edwards was the driver for the crew, which had already unsuccessfully attempted to rob a different Chase Bank, located at 1650 E. Gun Hill Road in the Bronx, earlier that day.
Edwards also admitted that he and the same crew had successfully robbed the Chase Bank located at 1051 Westchester Avenue in the Bronx, on October 27, 2009. In that robbery, $12,500 was stolen.
Edwards was arrested and detained. Based upon the investigation, an arrest warrant was issued for Edwards in the Southern District of New York in December 2009, and he first appeared in the Southern District of New York on January 7, 2010. Corbett was arrested on March 30, 2010.
Edwards was the driver for each robbery, and waited outside the vehicle with CC-1 and CC-2 while Corbett entered the banks and attempted the robberies.
The total loss is $12,500.
The Relevant Statutory Provisions
Pursuant to 18 U.S.C. § 2113(a), the maximum term of imprisonment on each count is 20 years.
If a term of imprisonment is imposed, the Court may impose a term of supervised release of not more than 3 years, pursuant to 18 U.S.C. § 3583(b)(2).
Defendant is eligible for not less than one nor more than five years' probation, pursuant to 18 U.S.C. § 3561(c)(1).
The maximum fine that may be imposed is $250,000 per count, pursuant to 18 U.S.C. § 3571. A special assessment of $100 per count is mandatory, pursuant to 18 U.S.C. § 3013.
Full restitution to the victim is required under 18 U.S.C. §§ 3663A and 3664.
The Guidelines
The November 1, 2009 edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to § 1B1.11(a). The Court finds the following with respect to Defendant's applicable offense level, criminal history, recognition of responsibility, and term of imprisonment:
The Guideline for violations of 18 U.S.C. § 2113(a) is found in § 2B3.1. Since Edwards was involved in a bank robbery and two attempted bank, the base offense level for each count is 20, pursuant to § 2B3.1(a).
Because the taking of property of a financial institution was the object of each of the offenses, a two-level increase is warranted, pursuant to § 2B3.1(b)(1).
Because the loss involved in Count One, the bank robbery, was $12,500, a one-level increase is warranted, pursuant to § 2B3.1(b)(7)(B).
Because the instant offense involves three counts, two of which are only one level less serious than the count with the highest offense level (Count One), a three-level increase to the highest offense level is warranted, pursuant to § 3D1.4.
On February 25, 1996, Edwards was arrested and charged with Attempted Criminal Sale of a Controlled Substance in the Third Degree. On March 18, 1996, he pleaded guilty and was sentenced to one to three years' imprisonment. Pursuant to §§ 4A1.1(a), 4A1.2(e)(1) and 4A1.2(d)(1), this conviction warrants three criminal history points.
On December 3, 1996, while out on parole, Edwards was arrested and charged with Criminal Possession of a Controlled Substance in the Seventh Degree. On March 17, 1997, he pleaded guilty and was sentenced to 90 days' imprisonment. Pursuant to §§ 4A1.1(b) and 4A1.2(e)(2), this conviction warrants two criminal history points.
On April 3, 1999, less than two months after being released from prison, Edwards was arrested and charged with Attempted Criminal Sale of a Controlled Substance in the Third Degree. On October 6, 1999, he pleaded guilty and was sentenced to three to six years' imprisonment. Pursuant to §§ 4A1.1(a) and 4A1.2(e)(1), this conviction warrants three criminal history points.
On October 14, 2002, while out on parole, Edwards was arrested and charged with Criminal Sale of Marijuana in the Fourth Degree. On October 18, 2002, he pleaded guilty and was sentenced to 45 days' imprisonment and had his driver's license suspended for six months. Pursuant to §§ 4A1.1(c) and 4A1.2(e)(2), this conviction warrants one criminal history point.
A total of nine criminal history points establishes a Criminal History Category of IV, pursuant to the table at Chapter 5, Part A, of the Guidelines. However, since Defendant has two prior felony convictions involving Attempted Sale of a Controlled Substance in the Third Degree, he meets the criteria for a Career Offender, pursuant to § 4B1.1, and his Criminal History Category is increased from IV to VI.
Because Defendant is a career offender, the offense level is the greater of the level listed in § 4B1.1(b), which is 32, or the offense level otherwise applicable, which is 26. Pursuant to the career offender provisions of § 4B1.1(b)(C), the base offense level is thus increased to 32.
Based on his plea allocution, Defendant has shown recognition of his responsibility for the offense. Pursuant to § 3E1.1(a), the offense is reduced two levels. Furthermore, an additional one-level reduction is warranted, pursuant to § 3E1.1(b), because Defendant gave timely notice of his intention to enter a plea of guilty, thereby permitting the Government to avoid preparing for trial and permitting the Court to allocate its resources efficiently.
Accordingly, the applicable offense level is 29.
Based on a total offense level of 29 and a Criminal History Category of VI, the Guidelines range for imprisonment is 151 to 188 months.
The Guidelines range for a term of supervised release is at least two years but not more than three years, pursuant to § 5D1.2(a)(2).
Because the applicable Guidelines range is in Zone D of the Sentencing Table, Defendant is not eligible for probation, pursuant to § 5B1.1, Application Note 2.
The fine range for the instant offenses is $15,000 to $150,000, pursuant to § 5E1.2(c)(3)(A) and (B). Subject to Defendant's ability to pay, in imposing a fine, the Court shall consider the expected costs to the Government of any imprisonment, probation, or supervised release pursuant to § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $2,270.93 to be used for imprisonment, a monthly cost of $317.32 for supervision, and a monthly cost of $2,063.19 for community confinement.
The Remaining Factors of 18 U.S.C. § 3553(a)
Having engaged in the Guidelines analysis, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553(a) to impose a sentence "sufficient, but not greater than necessary," as is required by the Supreme Court's decision in Booker, 543 U.S. 220, and the Second Circuit's decision in Crosby, 397 F.3d 103. Upon consideration of all of the relevant factors, it is concluded that the imposition of a Guidelines sentence is warranted.
The Sentence
For the instant offenses, Edwards will be sentenced to 170 months' imprisonment and 3 years' supervised release.
Edwards is directed to report to the nearest United States Probation Office within seventy-two hours of release to commence his term of supervised release. It is recommended that Edwards be supervised by the district of his residence.
As mandatory conditions of his supervised release, Edwards shall: (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; (3) not possess a firearm or destructive device; and (4) cooperate in the collection of DNA as directed by the probation officer. The mandatory drug testing condition is suspended due to the imposition of a special condition requiring drug treatment and testing.
Furthermore, the standard conditions of supervision (1-13), set forth in the judgment, shall be imposed with the additional special conditions:
(1) Defendant will participate in a program approved by the United States Probation Office, which program may include testing to determine whether Defendant has reverted to using drugs or alcohol. The Court authorizes the release of available drug treatment evaluations and reports to the substance abuse treatment provider, as approved by the probation officer. Defendant will be required to contribute to the costs of services rendered (co-payment), in an amount determined by the probation officer, based on ability to pay or availability of third-party payment.
(2) Defendant shall provide the probation officer with access to any requested financial information.
(3) Defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer unless Defendant is in compliance with the installment payment schedule.
(4) Defendant shall submit his person, residence, place of business, vehicle, or any other premises under his control to a search on the basis that the probation officer has reasonable belief that contraband or evidence of a violation of the conditions of the release may be found. The search must be conducted at a reasonable time and in a reasonable manner. Failure to submit to a search may be grounds for revocation. Defendant shall inform any other residents that the premises may be subject to search pursuant to this condition.
In consideration of all the factors set forth in 18 U.S.C. § 3572(a), it does not appear that Defendant is able to pay a fine, and so the fine in this case shall be waived. A special assessment of $300, payable to the United States, is mandatory and shall be due immediately.
Defendant shall make restitution to Chase Bank in the amount of $12,500, except that no further payment shall be required after the sum of the amounts actually paid by all defendants has fully covered the compensable injury. Payments should be made payable to the Clerk of the Court for disbursement to Chase Bank and should be forwarded to Chase Bank, 1051 Westchester Avenue, Bronx, New York 10459.
If Defendant is engaged in a BOP non-UNICOR program, he shall pay $25 per quarter toward the criminal financial penalties. If he participates in the BOP's UNICOR program as a grade 1 through 4, he shall pay 50% of his monthly UNICOR earnings toward the criminal financial penalties, consistent with BOP regulations at 28 C.F.R. § 545.11. The balance of the restitution shall be paid in monthly installments of 10% of gross monthly income over a period of supervision to commence 30 days after the date of Defendant's release from custody. Defendant shall notify the United States Attorney for this District within 30 days of any chance of mailing address or residence address that occurs while any portion of the restitution remains unpaid.
The terms of this sentence are subject to modification at the sentencing hearing scheduled for October 19, 2010.
It is so ordered.