United States v. Sawyer

Citation: Not availableDocket: 97-6849

Court: Court of Appeals for the Eleventh Circuit; July 14, 1999; Federal Appellate Court

Original Court Document: View Document

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In 1997, the Eleventh Circuit vacated Marc Alan Sawyer's 157-month sentence for armed bank robbery and remanded for re-sentencing. Sawyer, who admitted to robbing a Mobile, Alabama bank in 1995 while armed and masked, threatened teller Sharon Malone, causing her extreme fear. Witness Christy Bailey noted that Sawyer's aggressive behavior made the robbery obvious to all present, leading to panic. After fleeing the scene and firing at pursuing customers, Sawyer was apprehended by off-duty deputy John Sudduth, who identified himself but faced a brief chase before Sawyer complied and was arrested.

Sawyer pleaded guilty to armed bank robbery and possession of a firearm during a violent crime. The Pre-sentence Investigation Report (PSR) suggested no upward adjustments to his sentence and a three-level reduction for acceptance of responsibility, leading to an adjusted offense level of nineteen. However, the district court denied the acceptance of responsibility, applied two upward adjustments for bodily injury and reckless endangerment, resulting in a final level of twenty-six and the original sentence. Sawyer appealed this sentence.

The prior panel determined that the district court incorrectly applied U.S.S.G. 2B3.1(b)(3) for bodily injury and U.S.S.G. 3C1.2 for reckless endangerment, leaving the acceptance of responsibility adjustment (U.S.S.G. 3E1.1) to the district court's discretion. Following this, Sawyer's sentence was vacated and the case was remanded for re-sentencing. At re-sentencing, the district court heard testimonies from bank employees but Sawyer, advised by counsel, chose not to testify. The court, again declining to apply a three-level downward adjustment for acceptance of responsibility, removed the previous two-level increase for bodily injury and instead imposed a two-level increase for extreme psychological injury (U.S.S.G. 5K2.3). However, it improperly reinstated the two-level increase for reckless endangerment during flight, contrary to the previous panel's directive.

Despite these adjustments, Sawyer’s final adjusted offense level remained at twenty-six, resulting in a re-sentenced term of 157 months’ imprisonment and five years of supervised release. The trial judge expressed frustration with the constraints of the Sentencing Guidelines, which prioritize prescribed adjustments over judicial discretion. 

Sawyer's actions included fleeing from a bank robbery while being pursued by several customers, firing a gun in their direction, and later fleeing from off-duty officer Sudduth who pursued him. The panel had previously ruled that U.S.S.G. 3C1.2 applies only if the defendant is fleeing from a law enforcement officer. The district court's re-application of this guideline at re-sentencing was deemed inappropriate as there were no law enforcement officers among those Sawyer fired upon during his escape.

The Sentencing Commissioners appeared to assume that bank robbers would be pursued only by law enforcement officers, leading the district judge to incorrectly apply facts from a scenario involving law enforcement to one involving civilians. The case law (Sawyer, 115 F.3d at 859) clarifies that this approach is erroneous, as no guidelines exist for shooting at non-officer citizens, indicating an oversight by the Sentencing Commission regarding this aggravating circumstance. Consequently, Sawyer's sentence must be vacated and remanded to the district court, which should consider 18 U.S.C. 3553(b) in its discretion.

Regarding acceptance of responsibility, the district court's decision will not be overturned unless the record clearly shows that the defendant has accepted personal responsibility, with the burden resting on the defendant to demonstrate this beyond a mere guilty plea. During the initial sentencing, the judge noted that merely expressing remorse was insufficient without supporting evidence, and despite opportunities to present such evidence, Sawyer failed to do so adequately. At a subsequent hearing, Sawyer expressed apologies, but the district court maintained its original finding, supported by evidence that suggested Sawyer's attitude had not substantively changed. Although Sawyer pointed to a probation officer's prior recommendation for a downward adjustment based on remorse, the court found no sufficient record evidence to establish his acceptance of responsibility, thus affirming its initial determination.

Sawyer argues that the evidence presented was insufficient to justify an upward departure in his sentence for extreme psychological injury and claims he lacked prior notice of such a departure. Approximately seven weeks before sentencing, the government notified its intent to seek a two-level increase for extreme psychological injury, specifically citing U.S.S.G. 5K2.3. However, the district court erroneously applied the bodily injury guideline, U.S.S.G. 2B3.1(b)(3), resulting in an appeal that deemed this application an error. Upon remand, the district court acknowledged extreme psychological injury based on witness testimony, particularly from Ms. Bailey, who described lasting effects from the robbery. The court found her condition unusual and aligned with the criteria outlined in U.S.S.G. 5K2.3. In contrast, it determined that another witness, Ms. Norton, had not sustained a severe injury. The government contends that Sawyer's claim should be reviewed for plain error since it was raised for the first time on appeal, while Sawyer insists on a standard of abuse of discretion. The standard for upward departure necessitates that the psychological impact is significantly greater than typically expected from the crime. The appeals court affirmed that the district court did not abuse its discretion in increasing the sentence for extreme psychological injury based on the evidence. Additionally, the appeals court found that the district court mistakenly reapplied U.S.S.G. 3C1.2 regarding reckless endangerment during flight, leading to the vacation of Sawyer’s sentence and remand for reconsideration under 18 U.S.C. 3553(b). The court upheld the district court’s decisions regarding the refusal to grant a downward departure for acceptance of responsibility and the application of U.S.S.G. 5K2.3 for extreme psychological injury. The sentence was vacated and remanded with instructions.