USA v. Shaterrika West-Malone, et al

Filing

UNPUBLISHED OPINION FILED. [15-20730 Affirmed ] Judge: WED , Judge: EHJ , Judge: LHS Mandate pull date is 07/03/2017 for Appellants Crystal Gail McCain-Sims and Shaterrika Monique West-Malone [15-20730]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-20730

United States Court of Appeals
Fifth Circuit

FILED
June 12, 2017

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff - Appellee
v.
CRYSTAL GAIL MCCAIN-SIMS; SHATERRIKA MONIQUE WESTMALONE,
Defendants - Appellants

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-222-2
Before DAVIS, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Defendants Crystal Gail McCain-Sims and Shaterrika Monique WestMalone pleaded guilty to aiding and abetting bank robbery in violation of 18
U.S.C. §§ 2113(a) and 2, and were sentenced to 108 and 142 months of
imprisonment, respectively. They appeal arguing that the district court erred
by not applying a two-level downward adjustment to their offense levels under

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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U.S.S.G. § 3B1.2(b) for playing a minor role in the commission of the bank
robbery. West-Malone also appeals the district court’s application of a fourlevel enhancement to her offense level under U.S.S.G § 2B3.1(b)(4)(A) because
a person was abducted during the bank robbery. Finding no error, we affirm.
I.
On March 19, 2015, four people robbed the Shell Federal Credit Union
in Humble, Texas. Derrick Devon Malone, Christopher Parker, along with
Defendants McCain-Sims and West-Malone, confessed to committing the bank
robbery. McCain-Sims was the getaway driver. West-Malone, Malone’s wife,
was the lookout. West-Malone entered the bank, confirmed there was no
security guard on duty, sent a text message to Parker confirming that fact, and
returned to the getaway car to wait with McCain-Sims. Parker and Malone
entered the bank.
On the way into the bank, Malone, who had a gun drawn, grabbed a bank
customer who was leaving and threw her back inside the bank and onto the
floor. Parker and Malone then proceeded to threaten and demand money from
bank tellers and customers. When bank tellers refused to open cash drawers,
Parker and Malone jumped over the counter and opened the drawers
themselves, emptying money into a grocery bag. In an interview summarized
in Defendants’ Presentence Report (“PSR”), a bank teller reported that when
Parker and Malone pressed her on whether there was more money, she took
them over to her teller drawer at the drive-through. Parker and Malone
emptied the money in that drawer into another grocery bag.
Parker and Malone collected $6,334 in cash from the bank and $144 in
cash from bank customers. The two men then fled the scene in McCain-Sims’s
car with the two Defendants. With the help of tracking devices hidden inside
the stolen cash and security camera footage of the getaway vehicle, the four
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defendants were tracked down and arrested that day.

They each gave

Mirandized videotaped confessions.
Defendants McCain-Sims and West-Malone were charged with aiding
and abetting bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2. Both
pleaded guilty, without a plea agreement. McCain-Sims was sentenced to 108
months of imprisonment and West-Malone was sentenced to 142 months of
imprisonment. Both sentences were within the applicable Guidelines range.
Defendants appeal, each arguing that the district court erred in applying the
Sentencing Guidelines.
II.
Defendants McCain-Sims and West-Malone argue that the district court
should have imposed a two-level downward adjustment of their offense levels
because they were “minor participant[s]” in the commission of the bank
robbery. 1 West-Malone also appeals the district court’s application of a fourlevel enhancement to her offense level for abduction. 2 We review the district
court’s application of the guidelines in turn and find no error.
A. Mitigating Role Reduction under U.S.S.G. § 3B1.2
We review the district court’s application of the Sentencing Guidelines
de novo and its factual findings for clear error. 3 “Whether [a defendant] was a
minor or minimal participant is a factual determination that we review for
clear error.” 4 “A factual finding is not clearly erroneous if it is plausible in light
of the record read as a whole.” 5

See U.S.S.G. § 3B1.2(b).
See U.S.S.G. § 2B3.1(b)(4)(A).
3 United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
4 United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) (alteration in
original) (internal quotation marks omitted) (quoting United States v. Villanueva, 408 F.3d
193, 203 (5th Cir. 2005)).
5 Id. (internal quotation marks omitted) (quoting Villanueva, 408 F.3d at 203).
1
2

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McCain-Sims objected to the lack of adjustment in her written objections
to her PSR and during her sentencing hearing, so we review the district court’s
factual determination that McCain-Sims was not a minor participant for clear
error. 6
The minor participant adjustment is appropriate “for a defendant who
plays a part in committing the offenses that makes him substantially less
culpable than the average participant in the criminal activity.” 7 This factbased determination is based on the totality of the circumstances surrounding
the commission of the crime. 8 The Commentary to this Guideline was amended
in 2015 to clarify the factors a court should consider when determining whether
the defendant played a minimal or minor role in the criminal activity. 9
McCain-Sims argues that the district court failed to consider her role in
the bank robbery compared to that of the other defendants in light of these
factors. In support, McCain-Sims points to the following facts: she served as
the getaway driver, but nothing more; she did not plan the robbery or have any
role in obtaining the firearm used; she did not direct Parker or Malone in
commission of the robbery; she remained in the car the entire time; and she
had limited knowledge of the plan. These facts, McCain-Sims argues, make

See Gomez-Valle, 828 F.3d at 327.
U.S.S.G. § 3B1.2 cmt. n.3(A).
8 U.S.S.G. § 3B1.2 cmt. n.3(C).
9 The factors listed in U.S.S.G. § 3B1.2 cmt. n.3(C)(i)-(iv) provide:
(i) [T]he degree to which the defendant understood the scope and structure of
the criminal activity;
(ii) the degree to which the defendant participated in planning or organizing
the criminal activity;
(iii) the degree to which the defendant exercised decision-making authority or
influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant’s participation in the commission
of the criminal activity, including the acts the defendant performed and the
responsibility and discretion the defendant had in performing those acts; [and]
(v) the degree to which the defendant stood to benefit from the criminal
activity.
6
7

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her comparatively less culpable in the commission of the bank robbery, thereby
warranting the decrease in her offense level.
The government argues that the district court correctly considered the
factors listed in the Commentary to the Guidelines in overruling McCainSims’s objection. McCain-Sims drove the other three defendants to the bank,
knowing Parker and Malone intended to rob the bank, and then drove them
away from the scene of the crime. She was also to share equally in Parker’s
proceeds from the robbery.
The district court found that McCain-Sims did not play a minor role in
the criminal activity and denied the downward adjustment to her offense level.
In light of the totality of the circumstances surrounding this bank robbery,
McCain-Sims played an integral role in the commission of the crime. The PSR
explained that McCain-Sims was approached by Parker and was told that she
would get one-half of Parker’s portion of the money stolen from the bank if she
acted as the driver. She drove Parker and Malone to the bank and exercised
discretion in her role, refusing to enter the bank. Based on her decision, WestMalone was recruited to “scope out the bank.” McCain-Sims picked up WestMalone and then drove back to the bank. She then acted as the getaway driver
after the robbery.
We agree that on this record the district court’s denial of the downward
adjustment was warranted. In reaching this conclusion, we have considered
our recent opinion in United States v. Sanchez-Villarreal. 10 There, the panel
overturned the district court’s refusal to apply a mitigating-role adjustment for
the defendant who acted as a drug mule and pleaded guilty to possession with
intent to distribute cocaine. 11 The district court characterized the defendant’s

10
11

No. 15-41303, slip op. (5th Cir. May 23, 2017).
Id. at 2-3.

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role as “critical” to the overall operation of moving the drugs as the basis for
denying the downward adjustment. 12 The Court held that the district court
erred in its interpretation and application of § 3B1.2 “by giving conclusive
weight to its finding that Sanchez-Villarreal’s role was ‘critical.’” 13 Because a
sentencing court cannot deny the downward adjustment on this ground alone
under the Commentary to the Guidelines, 14 the Court vacated and remanded
for resentencing. 15
Sanchez-Villarreal is distinguishable from the instant case. Counsel for
McCain-Sims twice urged the district court during the sentencing hearing to
measure his client’s culpability against the culpability of the other participants
in the crime. Although the district court used the word “indispensable” in
describing McCain-Sims’s role in the robbery, the record goes much further.
Importantly, McCain-Sims’s PSR addendum recommended denying the
adjustment and specifically listed the factors the court must consider, quoting
from the Guideline Commentary. At the beginning of the sentencing hearing,
the district court stated that it reviewed the PSR, the defendant’s written
objections to the PSR, and the addendum. Later in the sentencing hearing,
counsel renewed his objection to the court’s failure to consider the factors in
the Guideline Commentary and after an exchange with counsel, the court
overruled the objection. Based on this record, we cannot say the district court
failed to properly consider the Guideline factors before denying the
adjustment.

Id. at 3.
Id. at 10.
14 “The fact that a defendant performs an essential or indispensable role in the
criminal activity is not determinative. Such a defendant may receive an adjustment under
this guideline if he or she is substantially less culpable than the average participant in the
criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(C).
15 Sanchez-Villarreal, slip op. at 11.
12
13

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West-Malone did not raise her objection before the district court, so our
review to her objection is limited to plain error. 16 Again, whether a defendant
was a minor participant in criminal activity to warrant the mitigating role
reduction in offense level under § 3B1.2 is a question of fact. 17 We have held
that “[q]uestions of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error.” 18 Therefore, WestMalone’s objection to the district court’s finding that she was not a minor
participant in the bank robbery cannot constitute plain error.
B. Abduction Enhancement under U.S.S.G. § 2B3.1(b)(4)(A)
West-Malone preserved error by objecting to the district court’s
application of a four-level enhancement for abduction under U.S.S.G.
§ 2B3.1(b)(4)(A), so we review the district court’s application of the
enhancement de novo. 19 The Guidelines state that a four-level enhancement
is warranted “[i]f any person was abducted to facilitate commission of the
offense or to facilitate escape.” 20 “‘Abducted’ means that a victim was forced to
accompany an offender to a different location.” 21 Whether a person was moved
to a “‘different location’ should be interpreted flexibly on a case by case basis.” 22
The abduction enhancement can be applied even when the forced movement
occurred within a single building. 23

See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
Gomez-Valle, 828 F.3d at 327.
18 United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991) (citing United States v.
Mourning, 914 F.2d 699, 703 (5th Cir. 1990)).
19 Cisneros-Gutierrez, 517 F.3d at 764.
20 U.S.S.G. § 2B3.1(b)(4)(A).
21 U.S.S.G. § 1B1.1 cmt. n.1(A).
22 United States v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010) (citing United States v.
Hawkins, 87 F.3d 722, 726-28 (5th Cir. 1996)).
23 Id. at 474; see also Hawkins, 87 F.3d at 727-28 (“We interpret the term ‘a different
location’ . . . to be flexible and thus susceptible of multiple interpretations, which are to be
applied case by case to the particular facts under scrutiny, not mechanically based on the
presence or absence of doorways, lot lines, thresholds, and the like.”).
16
17

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West-Malone argues that while the abduction enhancement has been
applied where the forced movement was within a single building, the
enhancement is inapplicable when the defendant does not force the victim to
accompany him around the structure. West-Malone asserts Malone grabbed
the bank customer who was leaving and threw her to the floor, but did not use
force to thereafter move her around the bank.
West-Malone’s PSR stated that the bank customer “was in the process of
exiting the bank” when she was “pushed back into the bank and slammed to
the ground.” Malone grabbed the customer and threw her back into the bank
while holding a gun in his hand. Thus, Malone forced the victim to a different
location. 24 Additionally, when a bank teller told Parker and Malone that she
gave them all the money she had access to, Parker or Malone disputed her and
she took them at gunpoint to the drive-through area where they took the money
from that drawer. 25 These movements are sufficient to support application of
the enhancement, and West-Malone fails to show that the district court clearly
erred.
III.
In sum, we find no error in the district court’s application of these
Sentencing Guidelines. AFFIRMED.

See Johnson, 619 F.3d at 474.
See id. (finding that forced movement of a teller around the bank to facilitate escape
was sufficient to warrant the enhancement under U.S.S.G § 2B3.1(b)(4)(A)).
24
25

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