Convicted bank robber appeals sentencing because at the sentencing hearing there was testimony about pattern of related but uncharged crimes – similar style ninja bank robberies.
CASE NO. 10-80201-Civ-HURLEY,(07-80077-Cr-HURLEY)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
2010 U.S. Dist. LEXIS 126624
October 19, 2010, Decided
US Magistrate Judge P. A. White:
Beasley objected to the PSI because it mentions bank robberies for which the he was never charged and for which he denied involvement. (Crim-DE# 47); (PSI at ¶¶ 49-54).
At the sentencing hearing, former FBI Agent Terry Mullen testified there were similarities between the instant offense and four uncharged bank robberies. (Crim-DE# 64 at 11-12). The robberies were of Washington Mutual banks, except one that involved a World Savings Bank. (Crim-DE# 64 at 15-16). In all the offenses, the perpetrators were dressed like ninjas in dark long-sleeved shirts and dark long pants, stocking masks, and gloves. They carried two-way radios and police scanners was well as a nylon gym bag for the money and AK-47 handguns and, one time, a shotgun. (Crim-DE# 64 at 18-19). They would put guns to bank employees’ heads, point guns at people in the bank, physically push people to the ground and threaten to kill them. (Crim-DE# 64 at 19-20). They would drive a stolen car to the bank and leave a safe-car nearby. After the offense, they would drive away in the stolen car then abandon it and flee in the safe-car. (Crim-DE# 64 at 20). Most of the offenses involved stolen Ford Taurus as getaway cars. (Crim-DE# 64 at 15-16). Beasley and his brother lived in Broward County in the same geographic area where the getaway cars were stolen. (Crim-DE# 64 at 17).
Explaining this due process claim:
Beasley appears to assert his sentencing violated due process because the Court relied on four additional offenses to which he did not plead guilty and for which he was not tried.
A court may consider relevant facts concerning a defendant’s background, character, and conduct when imposing a reasonable sentence. United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). This includes consideration of a defendant’s uncharged criminal acts so long as those acts are proved by a preponderance of the evidence. See Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994) (noting uncharged conduct can be considered for sentencing purposes so long as it is proved by a preponderance of the evidence); United States v. Lindsey, 482 F.3d 1285, 1294-95 (11th Cir. 2007).
Based on the foregoing, it is recommended that the motion to vacate be denied without an evidentiary hearing.
Objections to this report may be filed with the District Judge within fourteen days of receipt of a copy of the report.
Note also in the case opinion is reference to an AR-15 assault rifle, a Tech-9 rifle and a stolen white Ford Expedition.