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United States v. Bernard Eugene Hickson, 16 F.3d 412, 4th Cir. (1994)

Bernard Hickson pled guilty to bank robbery. He argued that his conduct constituted larceny rather than robbery because he did not use force or intimidation. However, the court found that Hickson's verbal and written demand to the teller for money from the drawer reasonably caused fear and was intended to intimidate. Therefore, the appropriate sentencing guideline for robbery rather than larceny was correctly applied. The district court's sentence of 42 months in prison was affirmed.
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41 views2 pages

United States v. Bernard Eugene Hickson, 16 F.3d 412, 4th Cir. (1994)

Bernard Hickson pled guilty to bank robbery. He argued that his conduct constituted larceny rather than robbery because he did not use force or intimidation. However, the court found that Hickson's verbal and written demand to the teller for money from the drawer reasonably caused fear and was intended to intimidate. Therefore, the appropriate sentencing guideline for robbery rather than larceny was correctly applied. The district court's sentence of 42 months in prison was affirmed.
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16 F.

3d 412
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished
dispositions is disfavored except for establishing res judicata, estoppel, or the law
of the case and requires service of copies of cited unpublished dispositions of the
Fourth Circuit.

UNITED STATES of America, Plaintiff-Appellee,


v.
Bernard Eugene HICKSON, Defendant-Appellant.
No. 93-5639.

United States Court of Appeals, Fourth Circuit.


Submitted Jan. 20, 1994.
Decided Feb. 8, 1994.

Appeal from the United States District Court for the Eastern District of
North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (CR-9329)
Randolph B. Monchick, Asst. Public Defender, Raleigh, NC, for
appellant.
Rudolf A. Renfer, Jr., U.S. Atty., John Howarth Bennett, Asst. U.S. Atty.,
Raleigh, NC, for appellee.
E.D.N.C.
AFFIRMED.
Before WIDENER, WILKINS, and HAMILTON, Circuit Judges.
OPINION
PER CURIAM:

Bernard Eugene Hickson pled guilty to bank robbery, 21 U.S.C.A. Sec. 2113(a)
(West Supp.1993). He appeals his sentence of forty-two months, alleging that
the wrong guideline section was used to calculate his sentence. We affirm.

Hickson entered a bank and told the teller, "I'd like to make a withdrawal, I
want the money in your drawer." At the same time, he gave her a note which
said, "The funds in your drawer, 100's, 50's, and 20's." After his guilty plea,
Hickson's attorney objected to the probation officer's use of guideline section
2B3.1* (Robbery), instead of section 2B1.1 (Larceny), both of which may apply
to convictions under Sec. 2113(a). The attorney reported that, when the teller
was interviewed, she said she had been scared. Nonetheless, he argued that
Hickson's conduct was larceny rather than robbery because Hickson had not
used force, violence, or intimidation. He relied on this Court's decision in
United States v. Wagstaff, 865 F.2d 626, 629 (4th Cir.), cert. denied, 491 U.S.
907 (1989), which found no intimidation where the defendant walked into the
teller area and took money from an open cash drawer without speaking to
anyone. The district court found that section 2B3.1 was correctly used.

We review the district court's selection of the appropriate guideline de novo,


United States v. Lambert, 994 F.2d 1088, 1091 (4th Cir.1993), and find no
error. Intimidation occurs when the defendant's conduct is "reasonably
calculated to produce fear." Wagstaff, 865 F.2d at 627 (quoting United States v.
Amos, 566 F.2d 899, 901 (4th Cir.1977)). Unlike the defendant in Wagstaff,
who said nothing and did not use a note, Hickson made a verbal and written
demand for money to the teller. She was not simply a spectator to a theft, as the
tellers were in Wagstaff. She had to decide whether to comply with his demand
or refuse it. Hickson's conduct was reasonably calculated to produce enough
fear to cause the teller to turn over the money. See United States v. Hopkins,
703 F.2d 1102, 1103 (9th Cir.) (written and verbal demand for money
sufficient evidence of intimidation), cert. denied, 464 U.S. 963 (1983).

We therefore affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately presented in
the materials before the Court and argument would not aid the decisional
process.

AFFIRMED.

United States Sentencing Commission, Guidelines Manual (Nov.1992)

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