On Appeal From the United States District Court For the Western District of Pennsylvania. (D.C. Crim. Action No. 93-cr-00123).
Before: Stapleton and Greenberg, Circuit Judges, and Farnan,*fn* District Judge.
STAPLETON, Circuit Judge:
Alonzo Harris entered a conditional guilty plea to each of five counts charging him with armed bank robbery. His appeal from his conviction presents five issues: whether the court erred (1) in refusing to suppress a series of inculpatory statements given by Harris to various law enforcement personnel; (2) in declining to allow Harris to withdraw his plea on the eve of sentencing; (3) in failing to provide a sufficient explanation for its decision to raise Harris' criminal history level from category I to category VI pursuant to U.S.S.G. § 4A1.3; (4) in adding four points to Harris' offense level because the mace the district court found he had used on two tellers during one of the robberies was a "dangerous weapon" within the meaning of U.S.S.G. § 2B3.1(b)(2)(D); and (5) by enhancing Harris' offense level an additional two points because, as a result of being "maced," the tellers sustained "bodily injuries" within the meaning of U.S.S.G. § 2B3.1(b)(3)(A). We will remand for resentencing.
On May 7, 1993, the Pittsburgh police obtained an arrest warrant for Harris in connection with a shooting at the Hampton Inn in the Oakland section of the city. Harris voluntarily surrendered the next day and was taken into custody. During the remainder of that day and the next, Harris provided the authorities with extensive tape recorded and written statements detailing his role in five bank robberies which occurred in 1992. Prior to the making of these statements, the police had not suspected him of committing any of these robberies.
Harris first described the robbery of the Morningside Branch of the Laurel Savings Association. According to Harris' statement, he drove to the bank in a van with a friend, Charlie Brown. As Harris entered the bank, he carried a pellet gun and a can of mace. According to Harris, he took money from two tellers and, as he fled, attempted to spray mace at one of them to prevent her from seeing the direction in which he fled.
Harris next described an October 23, 1992, robbery of the Fidelity Savings Association on East Ohio Street in Pittsburgh. Brown carried a pellet gun into the bank and took money from a teller, while Harris picked money out of a cash drawer.
On the day after being taken into custody, Harris talked about the other three robberies at issue here. First, he described the July 30, 1992, robbery of the Allegheny Valley Bank in Blawnox, during which he carried a toy gun. Next, Harris spoke of the June 29, 1992, robbery of the Laurel Savings Association in Etna. On this occasion, Harris carried a can of mace and Brown carried a gun. After a teller gave them the money in her cash drawer, Harris sprayed mace in the air. Finally, Harris described the June 15, 1992, robbery of the Integra Bank in New Kensington. Harris and a man named "Vernor" were wearing ski masks and had one gun between them.
After Harris made these initial statements, the FBI was contacted. On May 11, 1993, FBI agents obtained further statements from Harris regarding his role in several other crimes.
After being indicted for the robberies that occurred in 1992, Harris filed a motion to suppress the statements he had given. Following an evidentiary hearing, the district court denied Harris' motion. Harris thereafter entered conditional pleas of guilty to the five counts of the indictment charging armed bank robbery and thereby preserved the suppression issue for appellate review.
On November 30, 1993, after the presentence report had been prepared and Harris' sentencing had been set for December 3, 1993, Harris filed a motion to withdraw his guilty pleas. At the hearing originally scheduled as a sentencing hearing, the district court denied this motion, heard argument on several sentencing issues, and made tentative findings with respect to those issues. Counsel was given permission to file objections to the tentative findings by December 6, 1993, and sentencing was continued until that date.
Harris was ultimately assigned a total offense level of 32, a criminal history category of VI, and a guideline sentencing range of 210-262 months. He was sentenced to concurrent 21-year terms of imprisonment (252 months); five years of supervised release; payment of restitution to the victim banks in the sum of $25,783; and a special assessment of $225.
Harris insists that the statements he sought to suppress were coerced. The district court found that they were not. We review the district court's finding of historic fact for clear error; our review of its ultimate Conclusion regarding the absence of coercion is plenary. Miller v. Fenton, 474 U.S. 104, 115-17, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985); United States v. Walton, 10 F.3d 1024, 1027 (3d Cir. 1993).
In support of his contention that his "will was overborne" and that the waiver of his constitutional rights was not "the product of a rational intellect and a free will," App. 97, Harris testified that he was intimidated by the fact that his legs were shackled, the fact that he was not free to leave the room in which he was questioned, and the fact that the officers with him in the room were wearing guns. He also testified that he had consumed forty ounces of "Old English" before he surrendered himself and that the effects of this consumption had not dissipated when he decided to confess.
The district court found that Harris had been advised of his constitutional rights on at least three occasions and that he had "voluntarily and understandingly" waived those rights. App. 149. It noted that the audio tapes established that Harris was "calm and rational" and "had no fear in his voice." Id. The court further noted that Harris had voluntarily surrendered and, as evidenced by Harris' own statements on the tape, he had been treated well by both the Pittsburgh police and the FBI. Finally, the court found that there was "no evidence" of threats, promises or pressures of any kind and "no credible evidence" that Harris was under the influence of alcohol. App. 149, 150.
There is ample evidence to support the district court's findings regarding the circumstances under which Harris' statements were given and, based on these findings, we conclude that Harris waived his constitutional rights voluntarily and with an understanding of the consequences of doing so.
At the hearing on his motion to withdraw his guilty pleas, Harris testified that "it was fear that drove" him to plead guilty and that he wanted to withdraw those pleas because he was "truly innocent." App. 193. However, he did not further explain the "fear" that had allegedly coerced the pleas, and he offered no evidence tending to show that the detailed accounts of the bank robberies in his statements were untrue. The district court declined to permit withdrawal. We will review its ruling under an abuse of discretion standard. United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989).
Quoting from United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992), the district court explained that a "defendant must . . . not only reassert [his] innocence, but give sufficient reasons to explain why contradictory positions were taken before the district court and why permission should be given to withdraw the guilty plea." App. 200. The court concluded that Harris had failed to explain his earlier statements and that, accordingly, his conclusory assertion of innocence was not credible. It further concluded that the reason Harris wanted to change his pleas was that he "had a change of heart after reading the presentence report and contemplating the possible sentence." App. 200. Citing United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989), the court concluded that this reason was inadequate to justify withdrawal. Finally, the district court noted that, under Third Circuit jurisprudence, withdrawal may be denied in circumstances like those before it even if no prejudice to the government is shown. See United States v. Martinez, 785 F.2d 111 (3d Cir. 1986).*fn1
We can find no fault with the district court's analysis, and its decision to deny the permission sought was well within the bounds of its discretion.
Having concluded that Harris' conviction must stand, we turn to the more troublesome sentencing issues that he raises. The first concerns the district court's decision to raise his criminal history level from category I.
U.S.S.G. § 4A1.3 provides in relevant part:
If reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range. Such information may include, but is not limited to, information concerning: . . . (e) prior similar adult criminal conduct not resulting in a criminal conviction.
A departure under this provision is warranted when the criminal history category significantly under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit further crimes.
In considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable. For example, if the court concludes that the defendant's criminal history category of III significantly under-represents the seriousness of the defendant's criminal history, and that the seriousness of the defendant's criminal history most closely resembles that of most defendants with Criminal History Category IV, the court should look to the guideline range specified for a defendant with Criminal History Category IV to guide its departure.
In United States v. Hickman, 991 F.2d 1110 (3d Cir. 1993), this court remanded a case for resentencing because it found that the district court had not properly completed the necessary step-by-step procedure that must occur prior to an increase under U.S.S.G. § 4A1.3. In Hickman, the defendant's prior record placed him in criminal history category III. The district court, however, believed that this resulted in a sentence which did not adequately represent Hickman's long history of similar conduct. Therefore, it departed upward under § 4A1.3 by "doubling the top of the guideline range." Id. at 1113. The district court gave no further explanation for the specific sentence. The record, however, reflected that the court was motivated by the fact that Hickman, at 65, was still engaged in criminal activity even though his history of fraud type offenses went back to 1953.
This court held in Hickman that a district court must follow the procedure contemplated by § 4A1.3 when choosing to depart upward from the criminal history category originally calculated for the defendant.
Under this [ § 4A1.3] regime, the court is obliged to determine which category (of those higher than the category originally calculated for the defendant) best represents the defendant's prior criminal history. The court then uses the corresponding sentencing range to "guide its departure." Moreover, the court is obliged to proceed sequentially through these categories. It may not move to the next higher category until it has found that a prior category still fails to adequately reflect the seriousness of the defendant's past criminal conduct.
Id. at 1114. We then went on to quote the following passage from a Second Circuit case:
The reason for obliging a Judge to examine the next higher categories in sequence is that these categories reflect the Commission's careful assessment of how much incremental punishment a defendant should receive in light of the various degrees of a prior record.
Id. at 1114 (quoting United States v. Coe, 891 F.2d 405, 413 (2d Cir. 1989)). We ultimately concluded that, although the district court was justifiably outraged by the defendant's long history of fraud, the court erred when it "jumped more than three criminal history categories without explanation and, a fortiori, without going through the ratcheting procedure prescribed by the Guidelines." Id.
The presentence report in this case found that Harris had only one criminal history point resulting from a 1992 conviction of robbery, reckless endangerment, and related offenses. Thus, the report gave him a criminal history category of I. However, the presentence report also listed Harris' extensive criminal background as a possible ground for departure. The report indicated that Harris was currently charged in four pending state prosecutions in Allegheny County. The first prosecution involved a murder. The second was for robbery and assault. The third prosecution consisted of 16 counts of robbery of various business establishments. The fourth consisted of 12 counts of robbery of other businesses. According to the report, Harris had confessed his involvement in all of the pending charges. Harris also admitted that he had been present at a drug-related murder committed by another.
At sentencing, the district court exercised the authority conferred upon it by § 4A1.3, with ...