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United States v. Ellison

United States Court of Appeals, First Circuit

August 2, 2017

UNITED STATES OF AMERICA, Appellee,
v.
DOUGLAS ELLISON, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Steven J. McAuliffe, U.S. District Judge]

          Torruella, Thompson, and Barron, Circuit Judges. Bjorn Lange, Assistant Federal Public Defender, was on brief for appellant.

          Seth R. Aframe, Assistant United States Attorney, with whom Emily Gray Rice, United States Attorney, was on brief for appellee.

          Before Torruella, Thompson, and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         Douglas Ellison pled guilty to violating 18 U.S.C. § 2113(a), the federal bank robbery statute. In this appeal, he challenges his 10-year prison sentence. We affirm.

         I.

         On August 20, 2014, Ellison was indicted in the United States District Court for the District of New Hampshire on one count of violating § 2113(a). That provision reads:

Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny --
Shall be fined under this title or imprisoned not more than twenty years, or both.

         The indictment charged that Ellison "did knowingly and intentionally, by force and violence, or by intimidation, take from the person and presence of another currency belonging to and in the care, custody, control, management, and possession of the Northeast Credit Union . . . [i]n violation of [§ 2113(a)]." (emphasis added). On November 25, 2015, Ellison pled guilty to that count.

         At the change-of-plea colloquy, the District Court explained the elements of the offense to which Ellison was pleading guilty. Those elements were that Ellison "intentionally took money from the Northeast Credit Union in Manchester from a bank employee, " that Ellison "used intimidation or force and violence . . . to obtain the money, " and that "the deposits of the credit union were insured by the National Credit Union Administration." (emphasis added).

         Prior to the sentencing hearing, the probation office prepared a presentence investigation report ("PSR"). The PSR calculated the sentencing range applicable to Ellison under the United States Sentencing Guidelines. According to the PSR, Ellison was, in consequence of his prior convictions, in criminal history category VI. The PSR also determined that, under the guidelines, Ellison's total offense level was 29. The PSR then calculated the applicable guidelines sentencing range for Ellison to be 151 to 188 months' imprisonment.

         Ellison filed an objection to the PSR. Ellison argued that the PSR wrongly based the determination that his total offense level was 29 on a finding that he was a career offender under U.S.S.G. § 4B1.1(a). The career offender guideline provides that:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior ...

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