Indictment Challenges Rejected, But Sentence Reversed Because Bank Robbery (18 U.S.C. § 2113(a)) is Not a COV for Career Offender Purposes

United States v. Dentler, No. 06-50272 (5th Cir. July 3, 2007) (Davis, Dennis, Prado)

Dentler was convicted of violating 18 U.S.C. § 2113(a), the federal bank robbery statute. Application of a career offender enhancement raised his advisory guideline range substantially, and he was sentenced to the statutory maximum of 20 years' imprisonment. Dentler challenged his conviction and sentence on appeal. Although the court affirmed his conviction, it held that the career offender enhancement was erroneously applied, and remanded his case for resentencing.

Dentler attacked his conviction on two grounds, both of which involved the indictment. First, he argued that his indictment failed to charge an offense. Section 2113(a) defines two separate crimes: 1) bank robbery using force and violence or intimidation, and 2) entering a bank with intent to commit larceny or a felony affecting the bank. Dentler's indictment alleged that he attempted to enter a bank with intent to commit robbery by taking money belonging to the bank. As the court observed,

[Dentler's] indictment fails to assert, on its face, a full set of elements for either crime: it is missing either the allegation that Dentler intended a taking “by force and violence or intimidation” (under the first paragraph of section 2113(a)) or that the felony he intended to commit at the time he entered the bank affected the bank (under the second paragraph of section 2113(a)).

The court assumed, for the sake of argument, that this constituted an error in the indictment, and turned to whether the error was harmless. (Note that the question of whether the omission of an element from an indictment can ever be harmless error is one that the Supreme Court has yet to decide. It granted cert on that issue in United States v. Resendiz-Ponce, but never reached the issue because it held that the indictment in question hadn't omitted an element in the first place.)

[I]n determining whether any error by the district court was harmless, we ask (1) whether the indictment provided Dentler sufficient notice of the crime with which he had been charged and (2) whether Dentler was harmed by “losing the right to have the public determine whether there existed probable cause to charge” the missing element.

The court held that the indictment provided sufficient notice that Dentler was charged under the felony-affecting-the-bank portion of § 2113(a):

The indictment plainly states that Dentler stands accused of an attempt to enter the bank to commit robbery by taking money belonging to that bank. Although the indictment could have drafted with greater skill, we cannot read it to accuse Dentler of anything but attempting to enter with the intent to commit bank robbery, despite the absence of a specific reference to “bank robbery” or the inclusion of the missing element of bank robbery, i.e., the use of force or intimidation.

It then held that there was no harm in not having the grand jury charge the missing element (the use of force or intimidation, which was the missing element of the intended felony of bank robbery), because the jury instructions required the petit jury to find that Dentler intended to use force and violence or intimidation (more on that in a second), and there was ample evidence from which "a rational grand jury could find probable cause existed to charge Dentler with the use of force and violence or intimidation."

Dentler's second argument was that the jury instructions constructively amended the indictment by requiring the jury to find that he "attempted to take the money by means of force and violence or by means of intimidation." The court held, in conclusory fashion, that this language "is properly considered a variance, rather than an amendment," because it did not allow the jury to convict him "upon a factual basis that effectively modifie[d] an essential element of the offense charged."

But all hope was not lost. As mentioned at the outset, Dentler did prevail on his challenge to his sentence. The district court concluded that the instant offense was a "crime of violence" as defined in U.S.S.G. §4B1.2(a), thereby triggering a career offender enhancement. That was error:

18 U.S.C. § 924(c) sets out a definition for crimes of violence very similar to that used by the Sentencing Guidelines. We have held that the second paragraph of § 2113(a) (under which Dentler was convicted) does not constitute a crime of violence under that definition. United States v. Jones, 993 F.2d 58, 61-62 (5th Cir. 1993).

And the error was not harmless, because even in an advisory guideline world a sentence imposed "as a result of an incorrect application of the sentencing guidelines" must be vacated. That's what happened here:

The district court’s error in classing Dentler’s offense as a crime of violence resulted in a sentencing range where the lowest possible sentence is 65 months higher than the top of the range he should have received --- such a gap affects his substantial rights.