United States v. Aquino

276 F. App'x 135
CourtCourt of Appeals for the Third Circuit
DecidedApril 25, 2008
Docket07-2547
StatusUnpublished

This text of 276 F. App'x 135 (United States v. Aquino) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Aquino, 276 F. App'x 135 (3d Cir. 2008).

Opinion

OPINION OF THE COURT

MICHEL, Chief Circuit Judge.

Defendant Nicholas Aquino appeals from the sentencing order following his conviction for conspiracy to commit robbery affecting interstate commerce and brandishing firearms during a crime of violence. Because we discern no harmful error in the District Court’s sentencing order, we will affirm the order.

I.

Because we write solely for the parties, we recite only those facts central to our analysis. Aquino was indicted by a grand jury for five counts of robbery affecting interstate commerce, conspiracy to commit those robberies, and two counts of brandishing firearms in furtherance of those crimes of violence. After reaching a plea agreement with the government, Aquino pled guilty to one of the firearms charges and the conspiracy charge.

At the sentencing hearing, Aquino objected to several aspects of the presentence investigation report (“PSR”). First, he objected to a two-level enhancement for bodily injury inflicted on a store employee on July 23, 2005, during the robbery of Weis Market in Carlisle, Pennsylvania, on the ground that the injuries were too minor to warrant the enhancement. He next objected to a two-level enhancement for bodily injury suffered by the manager of Sierra Madre Restaurant in Mechanics-burg, Pennsylvania, during a robbery on August 21, 2005, on the grounds that the injury was not caused by Aquino but by his co-conspirator, Paul Butler, and that the assault was not foreseeable. Finally, Aquino also objected to a four-level enhancement for abduction of the manager and two employees during the Sierra Madre Restaurant robbery on the ground that forcing people to move a short distance within a single premises does not constitute abduction. The District Court also heard testimony from Aquino as well as the manager of the Sierra Madre Restaurant. The manager testified that he and two of his employees were outside the *137 restaurant when they were accosted by Butler and Aquino, who forced them to go back inside at gunpoint. He also testified that Butler hit him on the head several times with a gun during the robbery.

The District Court found for the government as to all of Aquino’s objections. The Court sentenced Aquino to seven years’ imprisonment for the firearms offense, which is the statutory mandatory minimum sentence and which is required to be served consecutively. 18 U.S.C. § 924(c); U.S.S.G. § 3Dl.l(b)(l). Following the PSR’s recommendations as to the conspiracy charge, the District Court accepted the offense level calculation for the Sierra Madre Restaurant robbery (thirty-one) as the highest of the robberies, also accepting the increase by four for the other four robberies and a decrease by three for acceptance of responsibility for a final offense level of thirty-two for the conspiracy offense as a whole. See U.S.S.G. §§ lB1.2(d), 3D1.2(d), 3E1.1. The guideline range for this offense level and Aquino’s criminal history category was 188-235 months for the conspiracy charge. But the District Court also granted the government’s motion for a downward departure due to Aquino’s substantial assistance to the government, sentencing him to 136 months’ imprisonment for the conspiracy offense for a total of 220 months’ imprisonment for both the firearms (seven years, or eighty-four months) and conspiracy offenses.

II.

Aquino argues three errors on the part of the District Court in its sentencing order. First, Aquino asserts that the District Court erred by accepting the abduction enhancement because forcing people to move within a single premises does not constitute abduction. Second, Aquino argues that the District Court erred by enhancing the offense level for the Sierra Madre Restaurant robbery for bodily injury when no evidence was presented that the manager’s injuries were painful, obvious, or one for which a person would ordinarily seek medical treatment. Finally, Aquino states that the District Court erred by enhancing the offense level for the Car-lisle Weis Market robbery for bodily injury when the victim received only minor injuries.

1.

As the District Court noted, the Guidelines provide an example of abduction in its definition of the term:

“Abducted” means that a victim was forced to accompany an offender to a different location. For example, a bank robber’s forcing a bank teller from the bank into a getaway car would constitute an abduction.

U.S.S.G. § 1B1.1 app. n. 1(A). Here, Aquino and Butler forced the Sierra Madre Restaurant manager and employees to accompany them from outside the restaurant back inside at gunpoint. We agree with the District Court that the facts of this case are indistinguishable from the Guidelines’ example and thus that the four-level enhancement for abduction was appropriately applied here. Aquino cites no contrary authority and, in fact, concedes that our sister circuits have also affirmed the application of the abduction enhancement in similar cases. See United States v. Hickman, 151 F.3d 446, 462 (5th Cir.1998); United States v. Taylor, 128 F.3d 1105, 1110-11 (7th Cir.1997); see also United States v. Whooten, 279 F.3d 58, 61 (1st Cir.2002); United States v. Hawkins, 87 F.3d 722, 727 (5th Cir.1996); United States v. Elkins, 16 F.3d 952, 953 (8th Cir.1994).

2.

We next turn to Aquino’s objections to the enhancements for bodily inju *138 ry. We first note that, unlike the two other objections argued on appeal, Aquino did not raise at sentencing the objection to the bodily injury enhancement for the Sierra Madre Restaurant robbery that he now asserts. Rather, Aquino’s only objection to this enhancement at sentencing was that the injury was inflicted not by him but by Butler, and that his sentence should not be affected by Butler’s conduct because it was not foreseeable in this regard. Aquino now abandons that objection and instead argues that the government failed to show that the manager’s injuries were significant enough for the enhancement under the Guidelines.

Because this objection was not raised at sentencing, we apply a plain error standard of review. United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Dragon, 471 F.3d 501, 505 (3d Cir.2006). To reverse, we must find that the error was clear or obvious, affected the substantial rights of the Defendant, and “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732-36, 113 S.Ct. 1770; Dragon, 471 F.3d at 505. We do not discern such an error here.

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Related

United States v. Guerrero
169 F.3d 933 (Fifth Circuit, 1999)
United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
United States v. Robert D. Elkins
16 F.3d 952 (Eighth Circuit, 1994)
United States v. Jermeka Voya Hawkins
87 F.3d 722 (Fifth Circuit, 1996)
United States v. Bobby Perkins
89 F.3d 303 (Sixth Circuit, 1996)
United States v. Darrell K. Taylor and Ali R. Robinson
128 F.3d 1105 (Seventh Circuit, 1997)
United States v. Paul R. Whooten
279 F.3d 58 (First Circuit, 2002)
United States v. Shalon Dragon
471 F.3d 501 (Third Circuit, 2006)
United States v. Hickman
151 F.3d 446 (Fifth Circuit, 1998)

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Bluebook (online)
276 F. App'x 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-aquino-ca3-2008.