Tuesday, November 26, 2019

“The Case of the Polite Bank Robber.”

The introduction to this per curiam opinion (clearly written by Judge Rosenbaum), United States v. Roberto Perez, is entertaining:
If this were an Encyclopedia Brown mystery, it might be called The Case of the Polite Bank Robber.1 Without any weapons, Defendant-Appellant Roberto Arturo Perez calmly walked into two different banks. He handed a teller at each bank a note with instructions using words like “please” and “thank you,” made no reference to any type of weapon, bargained pleasantly with one teller for $5,000, and allowed another teller to leave the teller’s post and report the robbery while it was ongoing.
Of course, there’s no such thing as a good bank robbery. But from the perspective of the Sentencing Guidelines, there are certainly less bad ones. All bank robberies charged under 18 U.S.C. § 2113(a) necessarily involve implicit or explicit threats of some type, since they must all occur by “force and violence” or “intimidation” to qualify as bank robberies under that statute.2 But the Guidelines more harshly punish defendants who use implicit or explicit threats of death to accomplish bank robberies than those who employ lesser threats in their crimes.
Here, we decide whether the district court clearly erred in concluding that Perez’s conduct and choice of language would have instilled in a reasonable person a fear of death, justifying application of the Guidelines’ threat-of-death enhancement. In other words, we must evaluate whether Perez’s bank robberies were of the less bad variety, by Guidelines standards. After careful consideration and with the benefit of oral argument, we hold that they were. We therefore vacate Perez’s sentence and remand for resentencing.

1. For the uninitiated, the Encyclopedia Brown children’s book series, written by Donald J. Sobel, follows the adventures of Leroy Brown (not the Leroy Brown of Jim Croce notoriety). Brown was a fictional, highly intelligent, boy sleuth who solved mysteries.

Congrats to Tracy Dreispul of the FPD's office and to UM Law Professor Ricardo Bascuas for the win.


Rumpole said...

Who's the US District Court Judge who doesn't believe politeness counts for downward variance? Didn't everyone's mother always say to them when they were kids that "politeness counts for a downward variance"?

Anonymous said...

The guy should get a downward departure for foresight. Maybe he studied up on the guidelines the night before the heist and figured if caught, his sentence would be reduced commensurate with his conduct. But it was not to be. The Marquis of Queensberry would be proud.

Anonymous said...

It is referred to as the Virgil Starkwell downward departure.

Anonymous said...

Judge seemed out of control. What a slapdown.

Anonymous said...

Who cares if theres a downward. A guy like this reoffends and gets a big upward next time

Anonymous said...

It's "Sobol."