United States v. Bernard Eugene Hickson, 16 F.3d 412, 4th Cir. (1994)
United States v. Bernard Eugene Hickson, 16 F.3d 412, 4th Cir. (1994)
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NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished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of the case and requires service of copies of cited unpublished dispositions of the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.
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 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.