August 21, 2012

A Sad Bank Robber Attracts A Lower Sentence With Honey Than He Would Have With Vinegar

James Wooten was on hard times.

As he later told the police, he was just sick of living in his car and running out of money.

He went into a bank. As the Sixth Circuit in United States v. Wooten, tells it:

[B]ank teller Buddy Mason recalled the circumstances of the September 23 robbery. According to Mason, the robbery began after Wooten walked "casually" into the bank and approached the teller row. Wooten, who was fifty-six years old at the time, wore ordinary clothing and appeared to Mason to be a routine customer. After entering, Wooten strolled over and placed one hand on the counter. According to Mason, Wooten was "not looking around or fidgeting or looking at anything" and his demeanor was "nonchalant." After motioning for Mason to lean in closer, Wooten "kind of whispered and said, I am going to rob you." Mason at first thought Wooten was "joking around." Indeed, Mason recalled that he was "not taking [the robbery] very seriously because [Wooten] was just so nonthreatening." With prompting from Mason, Wooten repeated the statement "I am going to rob you," and Mason again questioned the sincerity of Wooten's request. At that point, Wooten "kind of got a serious look in his face" and said, "I have a gun, I want your money."

1342748_bank.jpgBank Robberies are common enough that banks give their tellers training on how to respond if they get robbed. After Mr. Mason heard from Mr. Wooten that he had a gun, Mr. Mason turned and picked up a stack of bills.

Mr. Wooten took the money and walked out of the bank.

He was caught by the police a few blocks later - that's when he said he robbed a bank because he didn't want to live in his car. He didn't have a gun with him.

At Mr. Wooten's sentencing hearing, the teller - Mr. Mason - said that:

Wooten "was not acting like he was going to hurt me or anybody in the bank." In fact, even though Wooten had told Mason that he had a gun, Mason said he "never felt threatened at all."

Mr. Wooten pled guilty. At sentencing, the fight was whether Mr. Wooten should be subject to a "threat of death" enhancement.

If a person commits a robbery and threatens to kill someone, that's seen as worse under the sentencing guidelines and the person gets an increase under section 2B3.1(b)(2)(F).

The district court applied the enhancement, finding that a reasonable person meeting the meek 50 year old Mr. Wooten, who was reluctantly robbing a bank to escape living in his car, would have to fear for his life.

The Sixth Circuit disagreed.

while the statement "I have a gun" certainly can be enough to support the threat-of-death enhancement--and in the majority of cases it is--the statement is not necessarily enough, especially when contextual circumstances undermine the otherwise threatening nature of the declaration.

This is hopeful for Mr. Wooten - saying that you have a gun does not always mean that you are saying you're going to use it. Sometimes you have to say you have a gun just to get someone to treat your situation like a robbery and give you the money that they're trained to hand over.

Although unusual, one can envision circumstances in which the nature of a robbery makes it objectively unreasonable for a victim of ordinary intelligence to believe that the robber, even if claiming to have a gun, has any intent or ability to carry out a violent act. An offender who walks into a bank waving a banana or what is plainly a toy gun, for instance, would not instill a fear of death in a reasonable person, even if the offender emphatically announced his possession of a gun. Cf. Jennings, 439 F.3d at 611 (surmising "that there could be circumstances that would sufficiently dilute the phrase 'I have a gun' so that it would not qualify as a death threat," such as where "a bank robber claimed to have a gun but brandished what was quite obviously a toy"); Gibson, 155 F.3d at 847 (stating that "I have a gun," constitutes a threat of death unless "unusual mitigating circumstances accompanying this statement could deprive the words of their ordinary and expected meaning" (internal quotation marks omitted)). Because such circumstances would fall short of instilling a fear of death in a reasonable victim of the offense, the threat-of-death enhancement would not be warranted.

The Sixth Circuit reversed and remanded - Mr. Wooten didn't threaten to kill anyone.

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