United States v. Robert Dee Okane

52 F.3d 828, 1995 U.S. App. LEXIS 7512, 1995 WL 145017
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 3, 1995
Docket93-3277
StatusPublished
Cited by40 cases

This text of 52 F.3d 828 (United States v. Robert Dee Okane) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Robert Dee Okane, 52 F.3d 828, 1995 U.S. App. LEXIS 7512, 1995 WL 145017 (10th Cir. 1995).

Opinions

[830]*830BRORBY, Circuit Judge.

Defendant Robert Dee Okane appeals the district court’s interpretation and application of various provisions of the Sentencing Guidelines that were relied upon in upwardly departing from the otherwise applicable guideline range. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), and we vacate the sentence imposed and remand for re-sentencing.

BACKGROUND

Robert Okane, his brother Walter Okane, Thomas J. Gieseke and William L. Blacketer, were involved in a series of armed bank robberies of federally insured financial institutions in and around the Kansas City, Missouri area.1 Robert Okane admitted his participation in a total of twenty three robberies. The defendants were subsequently charged by informations, and later superseding infor-mations, in federal district court in Kansas. Each defendant thereafter entered into a plea agreement where they agreed to waive indictment and venue and plead guilty to certain counts of the superseding informa-tions in exchange for dismissal of the remaining counts.

Under the terms of Mr. Okane’s plea agreement, he would plead guilty to all twelve counts of the superseding information. Counts one, three and five through twelve charged Mr. Okane with the armed bank robbery of ten federally insured banks in Kansas and Missouri, in violation of 18 U.S.C. §§ 2, 2113(a) and 2113(d). In counts two and four, Mr. Okane was charged with using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(e). In exchange for his pleas of guilty, the government agreed not to pursue prosecution on the remaining thirteen bank robberies in which he admitted his involvement, as well as agreeing not to advocate a particular sentence and not to oppose a three-level reduction for acceptance of responsibility.

The district court sentenced Mr. Okane to 262 months imprisonment on each of the ten armed bank robbery counts with those sentences to be served concurrently. The district court also sentenced Mr. Okane to five years imprisonment on each of the two firearms charges, to be served consecutively to each other and consecutively to the sentences imposed on the robbery counts. On appeal, Mr. Okane only challenges the sentences imposed on the ten robbery counts, asserting those sentences resulted from an erroneous application of the sentencing guidelines. In order to address Mr. Okane’s claims, we must first understand the methodology used by the district court in calculating Mr. Ok-ane’s sentence.

The presentence report set Mr. Okane’s combined adjusted offense level at 37 under the multiple count adjustment of U.S.S.G. § 3D 1.4. After a three-level downward adjustment for Mr. Okane’s acceptance of responsibility, his adjusted offense level was set at 34. The presentence report then determined Mr. Okane’s criminal history category should be level I. The sentencing guideline range for an individual with a total offense level of 34 and a criminal history category of I is 151 to 188 months of imprisonment. At sentencing, however, the district court, in accordance with the recommendation in the presentence report, departed upward from this guideline range by making two alternative departure calculations.

As we understand the district court’s first ruling, the court upwardly departed by increasing Mr. Okane’s offense level by three levels, from 34 to 37. The district court made three separate increases to Mr. Ok-ane’s offense level. The first increase was attributed to the fact that Mr. Okane’s offense level was increased only five levels under U.S.S.G. § 3D1.4, even though he pled guilty to ten separate bank robberies. The second increase was based on prior uncharged similar adult criminal conduct under U.S.S.G. § 4A1.3(e). This departure was warranted by Mr. Okane’s admitted participation in the thirteen additional bank rob[831]*831beries. The third and final increase was based on extreme psychological injury to certain victims in the various bank robberies, pursuant to U.S.S.G. § 5K2.3 of the Guidelines. After this three level departure, Mr. Okane’s sentencing range became 210 to 262 months imprisonment.

In the alternative, the district court indicated it would depart by raising Mr. Okane’s offense level only one level (from 34 to 35) under § 5K2.3 based on extreme psychological injury to certain victims of these robberies. At the same time, the sentencing court indicated it would depart by increasing Mr. Okane’s criminal history category from level I to level III, based on a determination that category I underrepresented his criminal history because of his admitted involvement in thirteen additional uncharged robberies. The district court observed the guideline range for a defendant with an offense level of 35 and a criminal history category of III is 210 to 262 months, the same range applicable to a defendant with an offense level of 37 and a criminal history category of I. Over Mr. Okane’s objections, the district court then sentenced him to 262 months imprisonment on each of the ten robbery counts, to be served concurrently. On appeal, Mr. Okane challenges each aspect of the district court’s decision to depart upward.

DISCUSSION

I.

In analyzing the propriety of a district court’s decision to depart upward, we apply a three-tiered review process, which we first enunciated in United States v. White, 893 F.2d 276, 277 (10th Cir.1990).2 Under White, step one requires us to examine the record de novo to determine whether the district court properly identified the existence of appropriate circumstances warranting a departure. See United States v. Tisdale, 7 F.3d 957, 962 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1201, 127 L.Ed.2d 549 (1994); White, 893 F.2d at 277-78.

A sentencing court may depart from the guideline sentence only if it ‘“finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ” White, 893 F.2d at 277-78 (quoting 18 U.S.C. § 3553(b)). Where departure is based on factors that are considered by the guidelines, the sentencing court cannot depart unless it finds that consideration to be inadequate in light of unusual circumstances.

Tisdale, 7 F.3d at 962 (citations omitted).

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Bluebook (online)
52 F.3d 828, 1995 U.S. App. LEXIS 7512, 1995 WL 145017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-dee-okane-ca10-1995.