Monthly archive

November 2011 - Page 3

Federal Corner: Sending a Girl to Do a Man’s Job Is Never a Good Idea [U.S.S.G. §3B1.4] – By F. R. Buck Files Jr.


Aaron C. Robinson was living in Louisiana when he received notice that he was to appear for a child-support hearing in Port Lavaca, Texas, on June 30, 2009. Robinson was $762.00 behind in his child support payments and feared that the court would put him in jail.

Robinson decided that a logical alternative to appearing at his hearing would be to call in a bomb threat that would cause the hearing to be postponed. Rather than taking a chance on being held in contempt by a State judge, he chose to engage in a course of conduct that resulted in his being sentenced to 41 months confinement in a federal prison, to be followed by three years supervised release. Not a good trade. United States v. Aaron C. Robinson, ___ F.3d___, 2011 WL 3890836 (5th Cir. 2011)[Panel: Circuit Judges Jolly, DeMoss and Prado (opinion written by Judge Prado)].

Robinson decided that he would return to Texas and make two bomb threats against the Calhoun County Courthouse in Port Lavaca where his child-support hearing was scheduled to be held. But how was he to do this?

On June 29, 2009, Robinson drove to Port Lavaca and talked to his 14-year-old stepsister who lived there. He asked her to purchase a pre-paid cellular telephone that he could use to place the calls. The stepsister dutifully purchased a TracFone at the local Wal-Mart. Robinson then asked her to leave the cell phone on the back porch of his mother’s house where he would pick it up. She did as he asked. [Note: Remember this. It sets up the unusual issue in the case.]

On June 30th, Robinson picked up the telephone and started back to Louisiana. On the way, he called the Houston 911 Call Center and also the Calhoun County Courthouse. During each of these calls, he made bomb threats. Based on these threats, officials closed the courthouse for a day while a bomb disposal unit searched the building. Robinson threw his telephone out of the car during his return trip to Louisiana.

Law enforcement officers determined that the telephone used to make the calls had been purchased at the Port Lavaca Wal-Mart on June 22, 2009. They watched surveillance videos from the store and observed a young female purchasing the telephone. On July 3, 2009, law officers received a tip from the Crime Stoppers hotline identifying Robinson’s stepsister on the videotape and identifying Robinson as the person who called in the bomb threats.

A Federal Grand Jury returned a two-count indictment charging Robinson with using a cellular phone to willfully threaten to damage or destroy a building by means of explosive. 18 U.S.C. § 844(e). Robinson entered a plea to one count of the indictment, and Judge John D. Rainey of the United States District Court for the Southern District of Texas ordered that a Pre-Sentence Report be prepared and set the case for sentencing.

Judge Prado’s opinion contains, in part, the following:

[The PSR]

Robinson’s Presentence Report (“PSR”) assigned a base offense level of twelve. See U.S.S.G. § 2A6.1(a)(1). The probation officer increased his base offense level by four levels because the offense resulted in a substantial disruption of “public, governmental, or business functions or services.” Id. § 2A6.1(b)(4)(A). He also increased Robinson’s base offense level by two additional levels because Robinson used a minor to commit the offense or assist in avoiding detection. See id. § 3B1.4. The probation officer based this enhancement on Robinson having his minor stepsister purchase the prepaid mobile phone that Robinson later used to make the bomb threats. After a three-level reduction for acceptance of responsibility, see id. § 3E1.1, the PSR recommended a total offense level of fifteen. Robinson’s total offense level, combined with a criminal history category of VI, resulted in a sentencing guidelines range of forty-one to fifty-one months in prison.

[Robinson’s Objection to the PSR]

Robinson objected to the PSR’s two-level enhancement for use of a minor. He argued that he did not “intentionally and purposefully include[ ] the juvenile in the commission of a criminal offense or in some significant way direct[ ] or otherwise control[ ] the minor.” Robinson contended that there was no evidence that the minor knew that the telephone was going to be used to commit a crime and there was no evidence that he intended to use the telephone to commit a crime at the time his stepsister purchased it.

[The Sentencing Hearing]

At his sentencing hearing, Robinson renewed his objection to the § 3B1.4 enhancement. He argued that the short time span between the time his stepsister purchased the telephone and the time he made the bomb threats was insufficient to justify the enhancement. Robinson also asserted that this fact pattern was distinct from scenarios in which a court typically applies the enhancement. While noting that it was a “close call,” Judge Rainey overruled the objection because it appeared that Robinson asked the minor to purchase the phone so that it would not be traced to him. Judge Rainey then concluded that a sentence within the guidelines range was appropriate and sentenced him to forty-one months in prison and a three-year term of supervised release. Robinson filed a timely notice of appeal.

[An Overview of Robinson’s § 3B1.4 Argument]

Robinson claims that there is no evidence from which to infer that he intended to make the bomb threats or use the phone to do so at the time he asked the minor to purchase the phone.

[U.S.S.G. § 3B1.4]

U.S.S.G. § 3B1.4 requires a two-point upward departure “[i]f the defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense.” The commentary to the rule states that “[u]sed or attempted to use” includes “directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting.” Id. cmt. n. 1. The district court noted that there was sufficient evidence of Robinson’s intent at the time he asked M.R. to purchase the phone. Based on this, the court found that although applying this enhancement was a “close call,” and that Robinson could have chosen to use an adult, he nonetheless decided to ask his minor stepsister to purchase the phone to avoid detection. Therefore, the enhancement was proper.

[Robinson’s Argument]

Robinson . . . argues that there is insufficient evidence in the record that he intended to make bomb threats or to use the phone to make bomb threats at the time he asked his stepsister to purchase it. He claims that the only evidence in the record concerning his intent to purchase the phone is that he intended to use it to keep in contact with his ex-wife and children. Robinson therefore contends that without any evidence in the record indicating when he decided to make the bomb threats using the phone, the Government failed to show that he had the requisite intent to use a minor to avoid detection of the crime.

[The Court’s Response]

The party seeking an adjustment to the sentence level dur­ing sentencing—here, the Government—“must establish the factual predicate justifying the adjustment.” United States v. Alfaro, 919 F.2d 962, 965 (5th Cir.1990) (citing United States v. Mueller, 902 F.2d 336, 347 (5th Cir.1990)). To meet this burden, the Government must prove “by a preponderance of the relevant and sufficiently reliable evidence the facts necessary to support the adjustment.” Id. (citing United States v. Mourning, 914 F.2d 699, 706 (5th Cir.1990)). Further, “direct evidence [that] conclusively establishes” intent is not necessary to support the enhancement because “the sentencing court is permitted to make common-sense inferences from the circumstantial evidence.” United States v. Caldwell, 448 F.3d 287, 292 (5th Cir.2006).

Robinson mistakes the preponderance-of-evidence requirement for a requirement that the Government prove the enhancement by direct evidence. While the record may lack direct evidence of his intent to make the bomb threats at the time he asked M.R. to purchase the phone, there is substantial circumstantial evidence of Robinson’s intent. The PSR establishes that Robinson did the following: (1) decided at some point before the child-support hearing not to attend because he was afraid the court would jail him for failure to pay $762; (2) directed M.R. to purchase a prepaid phone the day before he ultimately placed the bomb threats on that phone, and gave her money to do so; (3) contacted M.R. and asked her to leave the phone on the back porch that night; (4) retrieved the phone and the next morning placed the two bomb threats; and (5) disposed of the phone by throwing it out of the car window as he drove back to Louisiana.


The district court could properly infer from these facts that Robinson had another person purchase the phone to avoid appearing on store surveillance videos. Further, because Robinson directed M.R. to purchase the phone only hours before he made the threats, the timing supports an inference that he had the requisite intent at the time he made the request. Finally, Robinson’s decision to purchase a prepaid phone that could not be tracked directly to him and to dispose of that phone after the call supports the inference that he asked M.R. to purchase the phone with the specific intent to avoid detection. These are reasonable inferences that the district court was entitled to make based on the circumstantial evidence in the record. Therefore, the district court did not clearly err in finding the record sufficient to support Robinson’s intent when he asked M.R. to purchase the phone.

My Thoughts

  • Robinson’s advisory guideline range was calculated by Judge Rainey to be 41 to 51 months. Without the § 3B1.4 two-level enhancement, his advisory guideline range would have been 33 to 41 months. Robinson’s “use” of his stepsister probably cost him an additional 8 months in confinement.
  • Judge Rainey might not have come up with the enhancement if it had not been for the probation officer’s suggestion that the §3B1.4 enhancement would be appropriate. Remember that Judge Rainey, at the sentencing hearing, had noted that the enhancement was a “close call.” Once again, we are reminded that a defense lawyer, in every federal case, has to be concerned about the judge and the prosecutor and the probation officer assigned to the case.

Said & Done



John Hunter-Smith of Sherman recently earned an instructed verdict in a case of felon in possession of a firearm. The judgment the State relied on was from Oklahoma. The issue was whether the Oklahoma felony would have been a felony in Texas, as required by the recently amended Penal Code §46.04(g). Since the State failed to prove that his twice-enhanced client had committed an act that would have been a felony in Texas, the “not guilty” order was entered.

Paul B. Love represented army recruiter charged with Aggravated Assault, Aggravated Sexual Assault, and Retaliation in the 122nd Judicial District Court of Galveston County. Client, an army recruiter in Humble, met the complainant when she inquired about joining the military. She did not meet qualifications, but developed a casual relationship with client, who spent the night at her apartment on at least one occasion. On a weekend beach party campout with complainant’s friends, relationship unraveled badly, resulting in charges. The jury returned “not guilty” verdicts on all three counts. Congratulations, Paul.

Tip Hargrove had this to say about one of our TCDLA benefits: I tell you this List Serve is better than a cold beer and a plate of tender ribs. Recently I asked advice from the group concerning a DWI client who was approached under the excuse of community caretaking function. I failed to mention that he blew over the limit and also had a loaded pistol in plain sight. Anyway, answering my inquiry were John Young, David Suhler, Eric Tor­berson, and Jordan Lewis. I was already familiar with the basic case law concerning community caretaking but wanted advice on how to collect my thoughts, and I needed some fact situations that had been ruled upon by the appellate courts. After receiving the post from these four fine gentlemen, I prepared a “mini brief” and made an appointment with the prosecuting attorney and his assistant. After making my presentation, they agreed to read the cases and give it some thought. About 15 minutes ago, the assistant prosecutor told me that I was right and she was going to refuse both the DWI and the UCW. Can you believe it!?! Thank you colleagues and thank you List Serve.

Susan Powell persuaded a grand jury to no-bill her client, who was accused of statutory rape/sexual assault of child despite client’s confessions. She was allowed to present a written argument to the grand jurors. The argument was that the female was the aggressor in that she climbed a locked gated fence, she was a runaway, and asked to use the phone. The “victim” claimed that her ride couldn’t come for 1 to 1½ hours. She was let in out of the cold. Once she got into the client’s bed, kissed him, and fondled him, he started responding and went to bathroom to get a condom. She mounted him, on top. Susan argued that her client did not cause penetration—the “victim” did, because she had to lower herself onto him. The statement showed that the accused couldn’t even move because the young woman was taller and heavier than he is. Susan used the “victim’s” CAC video, in which she admitted that she wanted to have sex that day, and argued that client didn’t cause penetration—he was used like a living, breathing dildo because she, per her own statements, wanted to have sex.

Defense attorney Don Carter of Fort Worth, with the assistance of Joaquin & Duncan, obtained a 50% downward variance before Judge McBryde last week in a criminal possession of child pornography case. The defendant’s guideline range under the United States Sentencing Guidelines was 78 to 97 months. Sentence imposed was 36 months.