United States v. Herron

199 F. App'x 472
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 4, 2006
Docket05-6061
StatusUnpublished

This text of 199 F. App'x 472 (United States v. Herron) 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. Herron, 199 F. App'x 472 (6th Cir. 2006).

Opinions

BOYCE F. MARTIN, JR., Circuit Judge.

On March 15, 2005, Brian Herron was convicted by a jury of one count of attempted bank robbery, 18 U.S.C. § 2113(a), two counts of armed bank robbery, 18 U.S.C. § 2113(d), two counts of brandishing a firearm during the robberies, 18 U.S.C. § 924(c)(l)(A)(ii), one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), one count of escape, 18 U.S.C. § 751(a), three counts of assaulting a federal officer, 18 U.S.C. § 111(b), and two counts of assaulting a person assisting a federal officer, 18 U.S.C. § 111(b). Herron was then sentenced to 420 months in prison. Herron now appeals his conviction and sentence on a number of grounds. For the foregoing reasons, we affirm the decisions of the district court.

I.

On December 23, 2002, Herron entered a U.S. Bank in Owensboro, Kentucky. He approached the teller and handed her a note stating that he had a gun, to hand over money, and not to activate any alarms. The teller asked to see the gun and Herron told her it was a Christmas joke and left the bank. On December 26, a white male entered the BB & T Bank in Whitesville, Kentucky and held a teller at gun point, while they filled a blue bank bag with approximately $2,400. On January 3, 2003, a white male entered the same U.S. Bank that Herron entered on December 23 and again held a teller at gun point while having a blue bank bag filled with approximately $1,400.

Herron testified at trial that he was the man who attempted to rob the U.S. Bank on December 23. He made no such admissions as to the second and third alleged robberies.

On January 7, the police were contacted by Gerald “Jerry” Morris, who told the officers that Herron had admitted to being involved in all three incidents. Herron was arrested and the police searched the residence in which Herron and Morris lived. In the residence, the police found a firearm, a blue bank bag, and clothing matching the description of that worn by the robber during all three bank robberies (grey sweatpants and a blue jacket). On February 5, a six-count indictment was brought against Herron.

While in federal custody, Herron was transferred to a federal medical facility in Lexington, Kentucky. On July 17, 2004, Herron escaped from the medical facility.1 Herron was spotted shortly after his escape in Owensboro, Kentucky. A car carrying three Federal Bureau of Investigation agents and two local officers attempted to stop Herron’s vehicle. Herron then ran his vehicle into the officers’s vehicle in an attempt to flee. His attempt was unsuccessful and Herron was apprehended in Owensboro.

On August 4, the government obtained a thirteen-count indictment, adding charges for Herron’s escape. Leading up to trial, Herron attempted to sever charges into two separate trials — one for the bank robberies and a separate trial for the escape charges — but the district court denied all [475]*475of his motions. Herron also filed a motion to suppress which was denied by the district court. On March 15, 2005, Herron was found guilty on all of the bank robbery, firearm, escape, and assault counts. The jury did find Herron not guilty of solicitation to commit murder of a government witness. According to the presentence report, Herron had an offense level of twenty-nine and a criminal history category of V. This resulted in an advisory guideline range between 140 and 175 months. However, the presentence report noted that the two firearm counts carried with them mandatory, consecutive sentences of eighty-four and 300 months respectively. These counts resulted in a guideline range of 524 to 559 months. The district court sentenced Herron to 420 month sentence based on a sixteen-level downward departure. Herron then filed this timely appeal of both his conviction and sentence.

II.

A. Herron’s Sentence

Herron argues that his sentence violates the Eighth Amendment by being grossly disproportionate to the offense committed and “contrary to evolving standards of criminal justice.” Herron’s constitutional challenge to his sentence is a question of law, to be reviewed de novo. United States v. Lloyd, 10 F.3d 1197, 1220 (6th Cir.1993). This Court has held that only those “extreme sentences that are grossly disproportionate to the crime are prohibited” by the Eighth Amendment’s ban on cruel and unusual punishment. United States v. Flowal, 163 F.3d 956, 963-64 (6th Cir.1998) (quoting Harmelin v. Michigan, 501 U.S. 957, 995-97, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)).

In this case, Herron was given thirty-five years for two bank robberies, one attempted bank robbery, an escape, and assaulting federal officers. Herron attempts to demonstrate how his sentence is grossly disproportional by listing the potential sentences for a terrorist detonating a bomb (235 months), a second-degree murderer (168 months), and a rapist (eighty-seven months) in comparison with Herron’s 420 month sentence for two bank robberies. However, Herron fails to include in this comparison the gun charges, his escape, and the assaults against federal officials which also contributed to his final sentence.

Herron also argues that his sentence is unconstitutional under the Eighth Amendment because the sentence was a result of double counting of his gun charges, creating an excessive punishment. However, Herron’s only cite to support this claim is United States v. Livingston, 941 F.2d 431, 435-36 (6th Cir.1991), in which we affirmed the same method of sentencing that was used in this case. Even though the length of the sentence in Livingston was different (five years for the first use of a gun in a bank robbery and twenty years for the second count instead of seven and twenty-five years as in this case) it is not availing to Herron given our approval of the very same counting method used here.

Herron also makes an argument challenging the constitutionality of the perceived transfer of power from the judiciary to the prosecutors in making sentencing decisions. However, his argument holds little persuasive power in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in which the Supreme Court held that the federal sentencing guidelines are now advisory, giving greater discretionary power to the district courts in sentencing.

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United States v. Matlock
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Bluebook (online)
199 F. App'x 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-herron-ca6-2006.