United States v. Damien McDougal

368 F. App'x 648
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 10, 2010
Docket08-4165, 09-3412
StatusUnpublished
Cited by3 cases

This text of 368 F. App'x 648 (United States v. Damien McDougal) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Damien McDougal, 368 F. App'x 648 (6th Cir. 2010).

Opinion

PER CURIAM.

Damien McDougal and Marcus Holt robbed the Fifth Third Bank in Trotwood, Ohio. As they entered the bank at 3:02 p.m. on January 11, 2008, Holt, wearing a white bandana, a black knit cap, a blue hooded sweatshirt, blue jeans, black tennis shoes, and dark-colored gloves, brandished two semi-automatic handguns, pointed them at a customer’s head, and demanded money.

McDougal, who was wearing a black hockey mask, a gray hooded sweatshirt, tan pants, white gloves, and black tennis shoes, vaulted the teller’s counter and transferred currency from two cash drawers into a blue bag he had brought with him. As he and Holt fled the bank with an estimated $13,457, one of the customers in the bank attempted to subdue McDougal; *650 McDougal escaped only after punching the customer in the shoulder.

The robbers ran from the bank down a bike path and across a creek to get to their getaway car. The Trotwood Police, however, had already been summoned via a 911 call and arrived on the scene within seconds. By the time Holt and McDougal reached their vehicle, they were already precariously close to capture.

Things only went downhill for them from there. A witness on the scene reported seeing two men running to and entering a green vehicle bearing Ohio license plate number DVG-4184, and subsequently fleeing at a high rate of speed with both doors open. A second witness, located some three blocks away, reported that the same vehicle drove behind the residence at 2 Hillgard Street, and further reported hearing what sounded like a collision in the back yard of that residence. Moments later, the witness said, the vehicle re-emerged from behind the residence with only one occupant. The police, meanwhile, had positioned cars at the exit points from the neighborhood into which Holt and McDougal had fled, and were able to observe the car as it attempted to leave. The first cruiser to spot the car activated its emergency lights, and Holt— the car’s remaining occupant — attempted to flee in the vehicle. In the course of a fruitless, high-speed chase around the block, Holt’s vehicle hit three different police vehicles and was eventually pushed into the front yard of a residence. Holt attempted to flee on foot, but was apprehended before he could leave the yard. An FBI case agent assigned to investigate the robbery would later conclude that, from the time Holt and McDougal fled the bank to the time Holt was arrested, no more than five to ten minutes had elapsed.

Upon searching Holt’s car, the police found the mask and gloves that McDougal had been wearing, along with a man’s wallet containing McDougal’s driver’s license and Social Security card. When they investigated the area behind 2 Hillgard Street, they discovered two loaded handguns, clothing consistent with the clothing worn by the bank robbers, and a blue bag containing currency from the Fifth Third Bank. The currency was stained red by the dye pack that McDougal had also managed to scoop up with the cash.

McDougal was arrested a few hours later. On being questioned by the police, McDougal admitted that he and Marcus Holt had robbed the Fifth Third Bank; that he was the individual who had vaulted the counter and gathered money from the teller’s drawers; that he had left the getaway car when it was behind 2 Hillgard Street; and that he had, along with Holt, planned the execution of the robbery, including the use of a getaway car. McDou-gal was subsequently indicted and pled guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and one count of using, carrying, and brandishing a firearm during and in relation of a crime of violence in violation of 18 U.S.C. § 924(c). As part of each count, McDou-gal also pled guilty to aiding and abetting the same offenses in violation of 18 U.S.C. § 2.

On August 7, 2008, McDougal was sentenced to 36 months of incarceration on the bank robbery count and a consecutive 84 months of incarceration on the weapons count, to be followed by five years of supervised release; judgment against him was entered the following day. The district court reserved the question of whether McDougal should be made to pay restitution to the Trotwood Police Department for the damage done to their police cruisers, because McDougal had objected to the Presentence Investigation Report’s recommendation that he be held accountable for the damage caused to those vehicles by *651 Holt’s attempts to elude capture. At the August 7 sentencing hearing, the district court made plain its intention to hold a hearing to determine the facts necessary to decide the restitution issue, and to incorporate any such restitution into McDou-gal’s sentence by way of an amended entry. McDougal filed a notice of appeal from that decision on August 11, 2008.

The restitution hearing contemplated by the district judge was held on August 20, 2008. On December 19, 2008, he issued a decision and entry imposing on McDougal joint and several obligation (with Holt) to make restitution to the Trotwood Police Department in the sum of $13,565.02. On December 22, 2008, McDougal filed an amended notice of appeal from the August 8, 2008 judgment and from the district court’s restitution decision of December 19, 2008. The court’s amendment to the original judgment entry was filed on December 24, 2008. The two appeals have been consolidated for review.

II

Restitution to victims of certain crimes is made mandatory by the Mandatory Victims Restitution Act (“MVRA”):

(a)(1) Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in subsection (c), the court shall order ... that the defendant make restitution to the victim of the offense....
(2) For the purposes of this section, the term “victim” means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern....

18 U.S.C. § 3663A. The offenses “described in subsection (c)” include crimes of violence. 18 U.S.C. § 3663A(c)(l)(A)(i). Violations of 18 U.S.C. § 2113(a) and (d), such as those to which McDougal pled guilty, are crimes of violence. See United States v. Davis, 306 F.3d 398, 408-09 (6th Cir.2002).

In seeking to overturn the district court’s restitution award, McDougal advances both jurisdictional and substantive arguments.

A

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368 F. App'x 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-damien-mcdougal-ca6-2010.