Case 1:08-cr-00342-RWR-DAR Document 12

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. FRANK LESTER REDDICK, Defendant. : : : : Criminal Case No. 08-342 (RWR)

UNITED STATES MEMORANDUM IN AID OF SENTENCING The United States of America, by and through its attorney, the United States Attorney for the District of Columbia, hereby respectfully submits its Memorandum in Aid of Sentencing, recommending that the defendant be sentenced to a total of 82 months of incarceration, followed by 3 years of supervised release and/or probation, as appropriate. Further, the government requests that as part of the defendants supervised release and/or probation conditions, the defendant be required to make restitution as contemplated by statute and by the plea agreement, to comply with other court orders, and to attend anger management and/or domestic violence intervention classes. In support thereof, the United States respectfully states the following: Background 1. The defendant pleaded guilty to five offenses: (a) Bank Robbery, in violation of

18 U.S.C. 2113(a) (Count 1); (b) Robbery, in violation of 22 D.C. Code 2801 (Count 2); (c) Assault, in violation of 22 D.C. Code 404 (Count 3); (d) Attempted Theft, in violation of 22 D.C. Code 1803, 3211, and 3212(b) (Count 4); and Escape, in violation of 22 D.C. Code 2601 (Count 5). These charges are the result of a four-month crime spree by the defendant, from May to September of 2008, during which time he persisted in a pattern of robbery, assault, and evasion of authorities. In summary:

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On May 5, 2008, the defendant walked into the Landmark E Street Cinema, handed the cashier a note claiming that he had a gun and demanding cash, and then robbed the cinema of $446.00.1 The defendant returned and did the same thing again on June 20, 2008, this time taking a total of $439.50 from the cinema. (Count 2). The very next day, on June 21, 2008, the defendant went to Georgetown University Hospital to see Ms. Kadaira Blakes, who had given birth to their child a few days earlier. During an argument over money, the defendant became angry, grabbed at the diaper bag in which he believed the money had been placed, pushed Ms. Blakes, punched her in the back of the head, and shook her.2 (Count 3). Three days later, on June 24, 2008, the defendant walked into Capitol Eyes, an eyeglass store located in the District of Columbia, handed an employee a robbery note stating that he had a gun in his pocket, and that he would shoot if the victim refused to turn over the money. In that case, the employee fled, so the defendant left the store without any money. (Count 4). On September 10, 2008, while he was remanded to a halfway house, the defendant walked into a District of Columbia branch of Chevy Chase Bank and handed the teller a withdrawal slip and a note that read, I have a gun and I am going to shoot threw [sic] the window. I want 2,000 in 100s. He robbed the bank of $2,600.00.3 Two days later, on September 12, 2008, the defendant ran away from the halfway house to which he had been transferred on July 7, 2008, and never returned. (Count 5). On September 15, 2008, the defendant walked into a District of Columbia branch of Wachovia Bank, walked up to a teller, and presented a note stating, Look, I have a gun. Just give me money, or I will shoot and kill. $100 dollar bills and $50 is what I want. When the teller looked at the defendant in disbelief, the defendant lifted up his shirt in a manner that suggested to the teller that the

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No charges are being brought on account of this robbery as part of the plea agreement. Although the defendant attempted to minimize his conduct during the plea proffer, these events were all witnessed by a nurse who came into the room and had to pull the defendant off of Ms. Blakes. No charges are being brought on account of this robbery as part of the plea agreement. 2

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defendant had a gun in his waistband. The defendant then stated, Give me ten $100 bills and ten $50 bills. He robbed Wachovia of $3,121.00. (Count 1). This crime spree ended only when the defendant was arrested on September 16, 2008, and from all appearances, only because he was held without bond at that point. Statutory Penalties 2. Federal Offense. Count 1, the charge of Bank Robbery, carries a maximum

sentence of twenty years of imprisonment, a fine of $250,000 or a fine of twice the pecuniary gain or loss pursuant to 18 U.S.C. 3571(d), and an obligation to pay any applicable interest or penalties on fines not timely made and a term of up to three years of supervised release. In addition, the defendant must pay a special assessment of $100 per felony conviction to the Clerk of the United States District Court for the District of Columbia prior to the date of sentencing. The defendant is eligible for a term of probation of no less than one year and no more than five years. 18 U.S.C. 3561(c)(1). The defendant must pay restitution to Wachovia Bank. 18

U.S.C. 3663A.4 3. District of Columbia Offenses. Count 2, the charge of Robbery, carries a

minium sentence of two years of imprisonment, a maximum sentence of fifteen years of imprisonment pursuant to 22 D.C. Code 2801, and a term of up to three years of supervised release pursuant to 24 D.C. Code 403.01. Count 3, the charge of Simple Assault, carries a

Paragraph 90 of the presentence report indicates that the defendant must pay restitution to both Chevy Chase Bank and to Wachovia Bank. As Wachovia Bank is the named victim of the charged bank robbery, the government agrees that restitution to Wachovia Bank in the amount of $3,121.00 is mandatory, pursuant to 18 U.S.C. 3663A(a)(1) and (c). However, the agreement does not require the defendant to make restitution to Chevy Chase Bank, the victim of the bank robbery that will be dismissed as part of the plea agreement. Accordingly, it does not appear that restitution to Chevy Chase Bank is required. See 18 U.S.C. 3663A(a)(3) (requiring restitution to non-victims only where making such restitution is a requirement of the plea agreement). 3

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maximum sentence of 180 days of imprisonment and/or a $1,000 fine, pursuant to 22 D.C. Code 404. Count 4, the charge of Attempted Theft carries a maximum sentence of 180 days of imprisonment and/or a $1,000 fine pursuant to 22 D.C. Code 1803, 3211, and 3212(b). Count 5, the charge of Escape, carries a maximum sentence of five years of imprisonment and/or a $5,000 fine, pursuant to 22 D.C. Code 2601, and a term of up to three years of supervised release, pursuant to 24 D.C. Code 403.01. In addition, pursuant to 4 D.C. Code 516, the defendant must pay an assessment of between $100 and $5,000 for each D.C. Code felony offense (Counts 2 and 5), and of between $50 and $250 for each D.C. Code misdemeanor offense (Counts 3 and 4), into the District of Columbia Superior Court Victims of Violent Crime Compensation Fund. The defendant is eligible for a term of probation of up to five years for each D.C. Code offense. Should the Court choose to impose a term of probation, the Court may (1) suspend imposition of sentence; (2) impose the sentence and suspend imposition of the sentence; o4 (3) impose the sentence and suspend the execution of a portion of the sentence. 16 D.C. Code 710 and 710(b). Sentencing Guidelines 3. Federal Offense. With respect to Count 1, Bank Robbery, the Presentence

Report writer has calculated defendants base offense level to be 20. PSR 26. The PSR writer enhanced the base level by 2 more points because the robbery involved a financial institution. PSR 27 (citing U.S.S.G. 2B3.1(b)(1)).5 The PSR writer also added 2 points for a threat of

Although this specific offense characteristic was not included in the plea agreement, the government agrees that the enhancement is appropriate and should be applied. This is consistent with the language in the plea agreement stating that nothing in the agreement is to be read as precluding either party from arguing for or against the applicability of any other specific offense characteristic and/or adjustment to the defendants base offense level that is not specifically referenced in the agreement. 4

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death enhancement, on the basis that the defendant claimed to have a gun and threatened to shoot and kill the teller. PSR 28 (citing U.S.S.G. 2B3.1(b)(2)(F)). In fact, the enhancement for this conduct should be 3 points, as contemplated by the specific offense characteristic for possessing or brandishing a dangerous weapon. See U.S.S.G. 2B3.1(b)(2)(E) and Application Note 1(D) to 1B1.1. The defendants threatening words that he had a gun, combined with his admitted gesture in pulling on his waistband, caused the teller reasonably to believe that the defendant had a gun in his waistband.6 With this change, the defendants adjusted offense level is 25, not 24, as contemplated by the presentence report. See PSR 32. Thus, after a 3-point reduction for his early acceptance of responsibility, the defendants total offense level is 22. With a criminal history category of I, the defendants Guidelines range for Bank Robbery is 41 to 51 months. The guideline range for a term of supervised release is at least two but no more than three years. PSR 73. 4. District of Columbia Offenses. The District of Columbia Sentencing

Commissions Voluntary Sentencing Guidelines (D.C. Guidelines) apply only to felonies, and

The parties stipulated to this enhancement in the plea agreement. As stated in Application Note 2 to U.S.S.G. 2B3.1, an object shall be considered to be a dangerous weapon if the defendant used the object in a manner that created the impression that the object was an instrument capable of inflicting death or serious bodily injury (e.g., a defendant wrapped a hand in a towel during a bank robbery to create the appearance of a gun). It is irrelevant whether the defendant intended to give a false impression that he had a dangerous weapon or did so inadvertently. The test is whether a reasonable person, under the circumstances of the robbery, would have regarded the object that the defendant brandished, displayed or possessed as a dangerous weapon, as the teller did here. See, e.g., United States v. Stitman, 472 F.3d 983 (7th Cir. 2007). In Stitman, the defendant conceded that he told the teller that he had a gun, and that the teller may have observed a bulge in his pocket, but he argued that he merely had his hand in his pocket and was not in possession of any type of object that a reasonable person could have perceived as a dangerous weapon. The Seventh Circuit nevertheless determined that the sentencing enhancement for brandishing or possessing a weapon in connection with a robbery offense applied. Id. at 986-87. 5

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thus would only apply to Count 2 (Robbery) and Count 5 (Escape) in this case. With a criminal history score of 0 points, the guideline range for Count 2 (Robbery) is 18 to 60 months, and a sentence in this range allows for a term of imprisonment or a short split sentence (but not straight probation). PSR 66. The guideline range for Count 5 (Escape) is 1 to 12 months, and a sentence in this range allows for a term of imprisonment, a short split sentence, or probation. Under the D.C. Guidelines, the Court has discretion to sentence the robbery and escape charges consecutively or concurrently. See D.C. Guidelines, Chapter 6 (Consecutive and Concurrent Sentences).7 Sentencing Recommendation 5. Considering the sentencing factors enumerated in 18 U.S.C. 3553(a), the

guidelines and policies promulgated by the United States Sentencing Commission and the District of Columbia Sentencing Commission, and given the nature and circumstances of the defendants repeated criminal actions in these cases, the government requests that the Court sentence the defendant to a total of 82 months of incarceration, followed by 3 years of supervised release and/or probation, as appropriate. Further, the government requests that as part of the defendants supervised release and/or probation conditions, the defendant be required to make restitution as contemplated by statute and by the plea agreement, to comply with other court orders, and to attend anger management and/or domestic violence intervention classes. 6. To be specific, on the charge of Bank Robbery (Count 1), the defendant should be

sentenced to 46 months of incarceration, followed by 3 years of supervised release, and the

Although both parties have agreed not to seek a sentence outside of any applicable guidelines range, the government recognizes that there is no authority which requires the Court to consult or to consider the D.C. Guidelines with respect to the D.C. Code offenses. 6

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defendant should be ordered to make restitution to Wachovia Bank in the amount of $3,121.00. On the charge of Robbery (Count 2), the defendant should be sentenced to 24 months of incarceration, to run consecutive to all other counts, and 3 years of supervised release, to run concurrent to any other period of supervised release or probation. Consistent with the plea agreement, the defendant should also be ordered to make restitution to Landmark E Street Cinema in the amount of $885.50. On the charge of Simple Assault (Count 3), the defendant should be sentenced to 6 months of incarceration, to run consecutive to all other counts, with execution of 3 months of the sentence suspended. The defendant should be placed on three years of probation, to run concurrent to any period of supervised release, during which time he must participate in anger management and/or domestic violence intervention classes. As

contemplated by the plea agreement, the defendant should also be required to comply with the terms of Civil Protection Order 08CPO2105, issued by the District of Columbia Superior Court on July 23, 2008 (or any subsequent similar order). A copy of that order is attached as Exhibit A. On the charge of Attempted Theft (Count 4), the defendant should be sentenced to 3 months of incarceration, to run consecutive to all other counts. On the charge of Escape (Count 5), the defendant should be sentenced to 6 months of incarceration, to run consecutive to all other counts, followed by 3 years of supervised release, to run concurrent to any other period of supervised release or probation. 7. With respect to the federal charge of Bank Robbery (Count 1), the Court should

begin . . . by correctly calculating the applicable Guidelines range. United States v. Gall, 128 S. Ct. 586, 594 (2007) (citation omitted). The Guidelines are the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions and are the starting point and the initial benchmark. Id. at 594-596 (citation and 7

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footnote omitted). Indeed, the Guidelines themselves are designed to calculate sentences in a way that implements the considerations relevant to sentencing as articulated in Title 18, United States Code, Section 3553(a). United States v. Rita, 127 S. Ct. 2456, 2463-2465 (2007). With respect to all of the offenses to which the defendant pleaded guilty, the Court should next consider all of the applicable factors set forth in Section 3553(a). 8. The Section 3553(a) factors include (1) the nature and circumstances of the

offense and the history and characteristics of the defendant, (2) the need for the sentence imposed to reflect the seriousness of the offense, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed correctional treatment, (3) the Sentencing Guidelines and related Sentencing Commission policy statements, and (4) the need to avoid unwarranted sentence disparities. 9. The government is requesting a sentence at the middle of the defendants

applicable guidelines range on Counts 1, 2, and 5, and in the middle of the defendants potential statutory sentencing range on Counts 3 and 4 (to which no guidelines apply). Such a sentence is more than supported by the facts surrounding defendants offenses, the risk created to citizens by the defendants conduct, the defendants repeated violations of law (even after being arrested and placed on conditions of release), and the current threat that the defendant poses to the community. 10. Over a four-month period, the defendant repeatedly committed dangerous crimes

that placed lives at risk. He committed or attempted to commit five robberies, each time threatening that he had a gun, and the last time, gesturing in a manner to indicate that he had a gun in his waistband. In a dispute over money, he assaulted the mother of his child, who had just 8

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given birth and was recovering in a hospital room. His acts of violence went undeterred even after he was arrested and placed in a halfway house. To the contrary, after he had been arrested for the cinema robberies and the assault on Ms. Blakes, and while under Superior Court supervision, he escalated his crimes. In a five-day period in September of 2008, he robbed two banks of over $5,000 in total, and escaped from the halfway house. His criminal conduct ceased only when he was arrested a second time, and then only because he was held without bond. 11. In sentencing the defendant, this Court should consider not only the harm to the

victims of the defendants crimes the movie theater cashiers, the bank tellers, and Ms. Blakes but also the potential harm the defendants actions may have caused to the community. By participating in robberies in highly populated areas such as movie theaters and banks, the defendant put numerous lives at risk. It is exceptionally fortunate that no weapons were drawn in response to the defendants threats, and that no one was injured. 12. The Court should also consider the harm that the defendant would pose to the

community if he were released. The defendant appears to show no remorse for his conduct in robbing the movie theater twice and in robbing two banks. To the contrary, he was quite arrogant about his criminal successes, stating on his MySpace.com page that his current occupation was Gettin Money!!!!!!!!!!!!!, while posting photographs of a semi-automatic pistol, enormous wads of cash, and a mountain of suspected marijuana. A copy of the relevant excerpts from the defendants MySpace.com page is attached as Exhibit B. Moreover, when the defendant pleaded guilty, he attempted to minimize his conduct to this Court. He claimed that it was sheer coincidence that he happened to pull on his waistband when the Wachovia Bank teller looked at him in disbelief after he passed her a demand note. Given the defendants evident

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pride in his work, and his minimizing of his conduct to this Court, there is no reason to believe he will be deterred from repeating the same kind of conduct again upon release. 13. In the same vein, the defendant appears to remain a significant threat to Ms.

Blakes. During the plea colloquy, he minimized the nature of his assaultive conduct toward Ms. Blakes when he stated that he punched Ms. Blakes by accident and that he only shook her gently. His statements in this regard appear directly at odds with the pattern of behavior described by Ms. Blakes, who told to the presentence report writer that the defendant has assaulted her on five other occasions, including one instance where he broke her cell phone, threw it at her, and then threatened to kill her and burn her house. PSR 19. In addition, notwithstanding the fact that Ms. Blakes: (a) obtained a Civil Protection Order against the defendant on July 23, 2008, (b) told the presentence report writer that her relationship with the defendant ended in November of 2008, (c) describes the defendant as a liar and a thief, who has serious problems, and (d) states that the defendant may not live with her at the conclusion of these cases, the defendant reports that he intends to live with Ms. Blakes after he is released from prison in these cases. See PSR 48-49. He is clearly deluded about the nature of their relationship, and there is a danger that a reality check will lead him to commit further violent acts against her. In short, it appears that the public and Ms. Blakes will be safe from the defendant only while the defendant is incarcerated. 14. The defendant has received a substantial benefit from this plea, and all the

leniency he should receive is encompassed in the plea. With respect to Count 1, the defendant received a three point decrease in his offense level as a result of his acceptance of responsibility. Moreover, the defendant will not face charges or be sentenced for his admitted robbery of E Street Cinema on May 5, 2008, his admitted robbery of Chevy Chase Bank on September 10, 10

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2008, or for violating his release conditions in Superior Court by committing crimes while under Superior Court supervision. Additionally, the governments request for a middle range sentence reflects some leniency for the defendants having pleaded guilty. 15. In sum, the government believes that the requested term of incarceration will give

both the government and the defendant the benefit of the bargain negotiated, while also ensuring that the defendant is appropriately punished and that society is protected. WHEREFORE, based upon the above, and the information reflected in the Presentence Report, the United States respectfully recommends a sentence of 82 months of incarceration, followed by 3 years of supervised release and/or probation, as appropriate, and that as part of the defendants supervised release and/or probation conditions, the defendant be required to make restitution as contemplated by statute and by the plea agreement, to comply with other court orders, and to attend anger management and/or domestic violence intervention classes. Respectfully, JEFFREY A. TAYLOR United States Attorney

/s/ EMILY A. MILLER Assistant United States Attorney Federal Major Crimes Section 555 4th Street, N.W. #4237 Washington, DC 20530 Phone: 514-7533; Fax: 514-6010 D.C. Bar No. 462077

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