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    United States v. Major, 4th Cir. (2008)

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    This document summarizes a United States Court of Appeals case involving Kenny Regan Major pleading guilty to bank robbery. The summary describes that Major pleaded guilty in district court but later appealed, arguing there was no factual basis to support his guilty plea. The Court of Appeals found that while there may have been an error in accepting the plea, any error was not "plain" as the law is not clear that the record did not establish intimidation during the robbery. The court ultimately affirmed Major's conviction.

    Copyright:

    Public Domain
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    United States v. Major, 4th Cir. (2008)

    Uploaded by

    Scribd Government Docs
    30 views11 pages
    This document summarizes a United States Court of Appeals case involving Kenny Regan Major pleading guilty to bank robbery. The summary describes that Major pleaded guilty in district court but later appealed, arguing there was no factual basis to support his guilty plea. The Court of Appeals found that while there may have been an error in accepting the plea, any error was not "plain" as the law is not clear that the record did not establish intimidation during the robbery. The court ultimately affirmed Major's conviction.

    Original Description:

    Filed: 2008-10-27 Precedential Status: Non-Precedential Docket: 07-4051

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    This document summarizes a United States Court of Appeals case involving Kenny Regan Major pleading guilty to bank robbery. The summary describes that Major pleaded guilty in district court but later appealed, arguing there was no factual basis to support his guilty plea. The Court of Appeals found that while there may have been an error in accepting the plea, any error was not "plain" as the law is not clear that the record did not establish intimidation during the robbery. The court ultimately affirmed Major's conviction.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    30 views11 pages

    United States v. Major, 4th Cir. (2008)

    Uploaded by

    Scribd Government Docs
    This document summarizes a United States Court of Appeals case involving Kenny Regan Major pleading guilty to bank robbery. The summary describes that Major pleaded guilty in district court but later appealed, arguing there was no factual basis to support his guilty plea. The Court of Appeals found that while there may have been an error in accepting the plea, any error was not "plain" as the law is not clear that the record did not establish intimidation during the robbery. The court ultimately affirmed Major's conviction.

    Copyright:

    Public Domain
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    of 11

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 07-4051

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    KENNY REGAN MAJOR,
    Defendant - Appellant.

    Appeal from the United States District Court for the District of
    South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
    Judge. (7:06-cr-00813)

    Argued:

    September 26, 2008

    Decided:

    October 27, 2008

    Before MICHAEL and MOTZ, Circuit Judges, and James C. DEVER,


    III, United States District Judge for the Eastern District of
    North Carolina, sitting by designation.

    Affirmed by unpublished per curiam opinion.

    ARGUED:
    Kirsten Elena Small, NEXSEN PRUET, Greenville, South
    Carolina, for Appellant.
    Elizabeth Jean Howard, OFFICE OF THE
    UNITED
    STATES
    ATTORNEY,
    Greenville,
    South
    Carolina,
    for
    Appellee.
    ON BRIEF:
    Benjamin T. Stepp, Assistant Federal
    Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
    Greenville, South Carolina, for Appellant.
    W. Walter Wilkins,
    United States Attorney, Columbia, South Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Kenny

    Regan

    Major

    pleaded

    guilty

    to

    taking

    money

    or

    property from a financial institution by force and violence, or


    by intimidation in violation of 18 U.S.C. 2113(a) (2000).

    On

    appeal, Major contends that no factual basis supports his guilty


    plea because the record before the district court contains no
    information to demonstrate that he used force and violence or
    intimidation

    to

    objection

    the

    in

    rob

    the

    bank.

    district

    court

    Major
    and,

    did

    not

    therefore,

    raise
    in

    this

    order

    to

    succeed on appeal, he must demonstrate that the district court


    plainly erred when it found a factual basis for his plea.
    has failed to do this.

    Major

    Accordingly, we affirm his conviction.

    I.
    On July 19, 2006, a criminal complaint was filed against
    Major alleging that he had committed bank robbery in violation
    of

    18

    U.S.C.

    2113(a)

    (2000).

    The

    affidavit

    submitted

    in

    support of the complaint detailed the following alleged criminal


    conduct of Major:
    Investigation revealed a black male described as late
    20s to early 30s, 56 58, medium build, clean
    cut, wearing a baseball cap, shorts and a green tshirt, entered the bank and approached the teller
    counter.
    The robber asked for some quarter wraps
    under the pretext of bank business from the teller at
    station #1.
    When the teller moved to the drive-thru
    window to retrieve the wraps, the robber moved around
    the counter to the secured access door entering the
    2

    teller area.
    The robber climbed the access door and
    moved to teller station #1.
    He placed his hands
    inside
    his
    shirt
    to
    avoid
    direct
    handling
    of
    materials, grabbed what he believed to be the money
    drawer and forced it open.
    The drawer was a supply
    drawer which contained no money.
    The robber then
    moved to teller station #2 and again forced open a
    drawer with his hands covered.
    From station #2, the
    robber
    obtained
    approximately
    $1610
    in
    currency
    including bait bills and a dye pack.
    The robber
    stuffed the monies under his shirt and left the teller
    area by climbing back over the secured door.
    He
    exited the front door of the bank towards the main
    parking lot.
    The robber was last seen traveling on
    foot.
    In October, 2006, Major appeared before the district court
    and pleaded guilty to a one-count indictment charging him with
    bank robbery.

    At the change of plea hearing Major agreed with

    the following summary of the crime as presented by the Assistant


    United States Attorney:
    On July 18th of this year, Mr. Major entered the
    Palmetto Bank on Asheville Highway in Inman.
    He
    approached the teller counter and distracted one of
    the tellers and then jumped over the secured access
    door to get behind the teller line.
    While there he
    obtained money including a dye pack.
    He stuffed the
    money under his shirt, jumped back over the access
    door and ran out of the bank.
    Also at the plea hearing, Major stated that he understood
    that

    he

    was

    charged

    with

    having

    by

    force,

    violence

    and

    intimidation [taken] from the person and presence of employees


    of Palmetto Bank . . . money belonging to the bank insured by
    the

    FDIC.

    He

    further

    stated

    that

    he

    understood

    that

    the

    elements of the crime with which he was charged were that he

    took money from the bank employees in possession of the bank;


    the taking was either by force, violence or intimidation; and
    the

    deposits

    Corporation.
    which

    he

    was

    were

    insured

    by

    the

    Federal

    Deposit

    Insurance

    Having stated that he understood the crime with


    charged

    and

    the

    elements

    of

    that

    crime,

    stated that he still wished to plead guilty.

    Major

    Later in the

    hearing he stated at least twice more that he was guilty.


    On December 11, 2006, the district court sentenced Major to
    180 months of imprisonment and three years supervised release.
    At

    the

    sentencing

    findings

    and

    hearing,

    guidelines

    presentence report.

    the

    district

    calculations

    court

    accepted

    contained

    in

    the

    Majors

    Paragraph five of the report states the

    following with respect to the offense conduct:


    Records reveal that on July 18, 2006, the defendant
    entered the Palmetto Bank, FDIC, located at 11500
    Asheville Highway in Inman, South Carolina.
    He asked
    for some quarter wraps under the pretext of bank
    business. When the teller moved away from the area to
    obtain the wraps, defendant Major moved around the
    counter, climbed over an access door, and forced open
    two teller drawers.
    He obtained $1,610 in U.S.
    currency, bait money, and a dye pack, from the second
    drawer.
    He stuffed the money in his shirt and left
    the bank.
    Three

    days

    December
    judgment.

    later

    27,

    judgment

    2006,

    Major

    was

    entered

    filed

    in

    notice

    the
    of

    case,
    appeal

    and,
    of

    on

    that

    He argues on appeal that no factual basis supports

    his guilty plea.

    II.
    Because Major did not object to or seek to withdraw his
    guilty plea in the district court, we review the acceptance of
    the plea for plain error.
    F.3d

    652,

    657

    (4th

    Cir.

    See United States v. Mastrapa, 509


    2007).

    Under

    plain

    error

    review,

    appellate courts may notice an error that was not preserved by


    timely objection only if the defendant can demonstrate (1) that
    an error occurred, (2) that it was plain, and (3) that the error
    affected

    the

    defendants

    criteria

    are

    met,

    an

    substantial

    appellate

    rights;

    court

    if

    retains

    these

    three

    discretion

    to

    correct a forfeited error if (4) the error seriously affect[s]


    the

    fairness,

    proceedings.

    integrity

    or

    public

    reputation

    of

    judicial

    United States v. Bradley, 455 F.3d 453, 461 (4th

    Cir. 2006) (quoting United States v. Olano, 507 U.S. 725, 731-32
    (1993)).

    Major contends that the district court plainly erred

    by accepting a guilty plea without a sufficient factual basis.


    Before a court may enter judgment on a guilty plea, it must
    find a factual basis to support the plea.

    Fed. R. Crim. P.

    11(b)(3).

    The factual basis may be supported by anything in the

    record.

    See

    Fed.

    R.

    Crim.

    P.

    11(b)(3);

    United

    States

    v.

    DeFusco, 949 F.2d 114, 120 (4th Cir. 1991).

    A district court

    has

    wide

    exists.

    discretion

    in

    determining

    whether

    factual

    basis

    Mastrapa, 509 F.3d at 656; United States v. Morrow, 914

    F.2d 608, 611 (4th Cir. 1990).


    5

    In order to find a factual

    basis, the court need not establish that a jury would find the
    defendant

    guilty

    or

    even

    that

    the

    preponderance of the evidence.

    defendant

    is

    guilty

    by

    The court must determine only

    that the conduct to which the defendant admits is in fact an


    offense under the statutory provision under which he is pleading
    United States v. Carr, 271 F.3d 172, 178-79 n.6 (4th

    guilty.

    Cir. 2001)(quoting United States v. Maher, 108 F.3d 1513, 1524


    (2nd Cir. 1997))(interpreting an earlier version of Rule 11).
    In this case involving bank robbery, the factual basis for
    the plea requires information that Major by force and violence,
    or by intimidation [took or attempted to take] from the person
    or presence of another . . . money or any other thing of value
    belonging to, or in the care, custody, control, management, or
    possession of, any bank, credit union, or any savings and loan
    association.

    See 18 U.S.C. 2113(a) (2000).

    contends

    Major

    that

    parties

    dispute

    used

    whether

    force

    the

    and

    violence.

    district

    court

    Neither party
    Instead,

    plainly

    erred

    the
    in

    finding a factual basis sufficient to conclude that Major used


    intimidation to rob the bank.
    in

    which

    produce

    defendants

    fear

    and

    where

    Intimidation occurs in situations

    conduct
    an

    is

    reasonably

    ordinary

    person

    in

    calculated
    the

    to

    tellers

    position reasonably could infer a threat of bodily harm from the


    defendants acts.

    United States v. Wagstaff, 865 F.2d 626, 627

    (4th

    Cir.

    1989)(citations,

    emphasis,

    and

    internal

    quotations

    omitted).
    Assuming, without deciding, that the district court erred
    in accepting Majors plea, that error was not plain.

    An error

    is plain only when it is obvious and clear under current


    law. United States v. Benton, 523 F.3d 424, 433 (4th Cir.
    2008)(quoting United States v. Olano, 507 U.S. 725, 734 (1993)).
    Although the law at issue here is obvious and clear that there
    must be a sufficient factual basis for a guilty plea, Fed. R.
    Crim. P. 11(b)(3), the law is not obvious and clear that the
    record in this case did not establish a factual basis for the
    crime of bank robbery.
    Indeed the closeness of this question is illustrated by two
    earlier

    cases

    of

    this

    court.

    In

    Wagstaff,

    the

    evidence

    presented at trial revealed that the defendant entered a savings


    and loan, approached the tellers counter, put on a ski mask and
    sunglasses, walked through an open gate into the teller area,
    took forty-five dollars from a tellers open cash drawer, and
    was then forced to flee when a customer attacked him.
    at 627.

    865 F.2d

    The defendant was at all times at least eight feet from

    the nearest teller, was not wearing or carrying a weapon, did


    not present any written note, said nothing, and made no overtly
    threatening

    gestures.

    Id.

    Based

    on

    that

    account

    of

    the

    robbery, we held, as a matter of law, that the evidence was


    7

    insufficient

    to

    demonstrate

    violation of 18 U.S.C. 2113(a).

    taking

    by

    intimidation

    in

    Id. at 629.

    On the other hand, even more recently in United States v.


    Woodrup, 86 F.3d 359 (4th Cir. 1996), we reached the contrary
    conclusion on quite similar facts. There evidence produced at
    trial

    showed

    that

    the

    defendant

    entered

    the

    bank,

    looked

    directly at a teller, walked very quickly across the lobby to


    the teller position, reached across the counter as if trying to
    grab the teller, and vaulted over the counter headfirst, causing
    the teller to back away screaming.

    Id. at 363.

    The defendant

    did not present a note, show a weapon or make an oral demand for
    money.

    Id.

    We

    nevertheless

    held

    that

    sufficient

    evidence

    supported the jury finding that the teller reasonably could have
    inferred a threat of bodily harm.
    Neither

    Wagstaff

    nor

    Id. at 364.

    Woodrup

    make

    obvious

    and

    clear

    whether the evidence in the case at hand provided a sufficient


    factual basis for conviction.

    Unlike the defendant in Woodrup,

    Major did not vault over the counter at any particular teller,
    and, in fact, he purposely distracted the teller to get her out
    of his way.

    Major did, however, vault over the security door

    and force open a drawer rather than walk through an open door
    and take money from an already open drawer as in Wagstaff.
    Majors case also differs from Wagstaff and Woodrup in that
    in his case there was not a trial during which witnesses could
    8

    explain in detail the defendants behavior.


    the

    record

    contained

    some

    information

    that

    In Majors case,
    suggested

    Major

    violated 18 U.S.C. 2113(a) (2000), and Major admitted to the


    district

    court

    conduct.

    that

    he

    had

    engaged

    in

    the

    relevant

    criminal

    At the plea hearing, Major stated that he understood

    that he was charged with robbing a bank by force, violence and


    intimidation and that the elements of the crime with which he
    was charged included taking money from a bank either by force,
    violence or intimidation.

    Then, when asked by the district

    court whether he was guilty of the charged crime, he stated that


    he was, and then twice reiterated that he was guilty.
    Of

    course,

    defendants

    admission

    of

    guilt

    cannot

    substitute for the district courts finding of a factual basis.


    See, e.g., United States v. Carr, 271 F.3d 172, 179-80 (4th Cir.
    2001).

    In this case, however, where Major knew whether he used

    force, violence, or intimidation to rob the bank, his admission


    of

    that

    element

    provided

    further

    support

    for

    the

    district

    courts finding that there was a sufficient factual basis for


    Majors guilty plea.

    Cf. United States v. Mastrapa, 509 F.3d

    652, 660-61 (4th Cir. 2007) (holding that the district court
    plainly erred in finding a sufficient factual basis where the
    defendant repeatedly protested the mens rea element of the crime
    and the government failed to fill the gap with facts); Carr,
    271

    F.3d

    at

    179-80

    (holding

    that
    9

    the

    district

    court

    plainly

    erred when it found a sufficient factual basis for a federal


    arson charge despite the defendants admission that he set fire
    to a building that moved in interstate commerce because the plea
    proceeding did not adequately demonstrate that the building was
    employed in interstate commerce).
    Because
    evidence

    did

    it
    not

    was

    not

    provide

    clear
    a

    and

    obvious

    factual

    basis

    that

    for

    the

    record

    Majors

    guilty

    plea, the district court did not plainly err when it accepted
    Majors plea.

    III.
    Counsel
    pursuant

    to

    for

    Major

    Anders

    v.

    included

    in

    his

    initial

    California,

    386

    U.S.

    738

    brief,

    filed

    (1967),

    an

    additional issue as to whether the district court erred when it


    sentenced Major to 180 months in prison.

    However, counsel did

    not argue that issue.

    Indeed, he ultimately concluded that the

    argument had no merit.

    We agree.

    We have reviewed the record and find that Majors sentence


    is both procedurally sound and substantively reasonable.
    district

    court

    properly

    calculated

    the

    Guidelines

    The
    range,

    considered that range in conjunction with the factors set forth


    in 18 U.S.C. 3553(a) (2000), and determined an appropriate
    sentence within the Guidelines range.

    Applying the presumption

    of reasonableness afforded sentences within the Guidelines range


    10

    and

    finding

    that

    Major

    failed

    to

    rebut

    that

    presumption

    on

    appeal, we conclude that his 180-month sentence is reasonable.


    See Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007);
    United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008).

    IV.
    For the foregoing reasons, the judgment of the district
    court is
    AFFIRMED.

    11

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