United States v. Ledford, Carl L.

Court Case Details
  • Case Name: United States v. Ledford, Carl L.
  • Court: Court of Appeals for the Seventh Circuit
  • Filed: June 27, 2000
  • Precedential Status: Published
  • Docket #: 99-1648
  • Judges: Per Curiam
  • Nature: criminal
Court Case Opinion

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-1648, 99-1922

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARL L. LEDFORD and

SHANE A. THOMAS,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Indiana, Fort Wayne

Division.

No. 97 CR 31--William C. Lee, Chief Judge.

ARGUED OCTOBER 25, 1999--DECIDED JUNE 27,

2000

Before EASTERBROOK, MANION, and ROVNER,

Circuit Judges.

ROVNER, Circuit Judge. Carl Ledford and

Shane Thomas robbed a bank in Fort Wayne,

Indiana. Both men were armed, and in the

course of the robbery, Thomas injured

both a customer and a bank employee with

his handgun. Based upon a bystander’s 911

call, the authorities were able to stop

the men’s car as they attempted to make a

getaway. A brief inspection of the

automobile trunk revealed a firearm, a

bag full of cash, and other incriminating

evidence. A jury later convicted them of

committing bank robbery by force and

violence, or by intimidation, 18 U.S.C.

sec. 2113(a), and using a firearm during

and in relation to a crime of violence,

18 U.S.C. sec. 924(c). In calculating the

sentencing range for each defendant, the

district court found that they had

inflicted bodily injuries in the course

of the robbery, and that their offense

levels should be adjusted accordingly.

See U.S.S.G. sec. 2B3.1(b)(3)(A) (1998).

Ledford and Thomas now challenge both

their convictions and sentences, arguing

that the district court should have

suppressed the evidence discovered in the

warrantless inspection of the car trunk

and that in passing sentence the court

improperly held them responsible for

inflicting injuries on the bank patron

and employee. We affirm.

I.

In the early afternoon of November 17,

1997, Ledford and Thomas backed a car up

to the entrance of the Standard Federal

Bank in the Waynedale section of Fort

Wayne and walked into the bank. Both men

carried handguns. Both were dressed in

dark clothing and had covered their

faces, one with a white hockey mask and

the other with a black stocking cap and

blue head covering with eye holes cut

into it.

Upon entering the bank, they shouted at

everyone to get down on the floor. Thomas

struck one of the patrons, Donald McAfee,

in the chest with his forearm, fist, and

gun. McAfee suffered a contusion on his

chest, and he was later hospitalized for

examination when he complained of chest

pains. Thomas subsequently took savings

counselor Kamie Arnold with him to the

bank vault and, after ordering her to

open it, pressed his gun into the small

of her back and pushed her into the jamb

of the vault door. That shove resulted in

bruises to Arnold’s hand, arm, and her

upper body. Arnold was unable to access

the cash in the vault, however, prompting

Thomas to assault her twice more with the

gun: once he placed it against her head,

threatening to kill her, and a second

time he shoved the gun into her ribs,

demanding more money. Thomas finally let

Arnold be after bank teller Marjorie

Creager screamed at him that the vault

was inaccessible. In the end, Ledford and

Thomas managed only to steal the money

that was stored in the tellers’ drawers.

Ledford and Thomas left the bank with

$6,000 to $7,000 in cash, including some

bait bills ($10 bills whose serial

numbers were recorded by the bank). But

their ill-gotten prosperity proved to be

short-lived.

Car salesman Mark Sieger was sitting in

his car watching the bank when the

defendants emerged. His suspicions had

been aroused moments earlier when the

defendants cut him off at a traffic light

near the bank, almost hitting him. (As

the car passed him, he noticed that one

of the two occupants had braided hair.)

Sieger had pulled his car over when he

saw the men back their car up to the bank

entrance and enter the bank, leaving the

car doors open. He noticed one of the

defendants put something over his head as

they walked into the bank. By the time

Thomas and Ledford returned to their car,

Sieger had already dialed 911 on his cell

phone to report his suspicion that a

robbery was underway. He saw that one of

the men was carrying a bag, the other a

gun. As the defendants proceeded to flee

the scene in their car, Sieger followed

them in his own vehicle. Moments later he

saw the defendants pull into the parking

lot of an apartment complex, access the

trunk of a beige- or champagne-colored

Cadillac Seville, and then continue their

flight in the Cadillac. He reported this

to the 911 dispatcher, with whom he had

remained on the line, and resumed

pursuit. Sieger lost sight of the

Cadillac briefly during the chase, but

subsequently re-acquired it. (He

recognized the car by its damaged

driver’s-side door.)

Meanwhile, the police had been apprised

over the radio of what Sieger had

observed. Detective Mack Page of the Fort

Wayne Police Department spotted the

Cadillac and pulled his vehicle behind

it. Page activated his emergency lights

and siren. Sieger subsequently reported

to the 911 dispatcher that a police car

had pulled in between his own car and the

Cadillac he was following. This

information was in turn broadcast by the

police dispatcher, and Page heard the

report. At this point, the Cadillac was

stopped for a red traffic right. After

Fort Wayne police officer Darryl Caudill

and Indiana State Trooper Daniel Taylor

pulled up and joined Page, the three

officers stepped out of their cars,

pointed their guns at the Cadillac, and

ordered the occupants out of the vehicle.

This took place eight minutes after the

robbery occurred.

One at a time, Ledford and Thomas

stepped out of the Seville with their

arms raised. Page took custody of a gun

that was tucked into Thomas’ belt. The

police placed the defendants under

arrest, handcuffed them, and placed them

in police cars. Sieger subsequently

identified Ledford and Thomas as the two

men he had seen leaving the bank. He made

that identification based on their

clothes and Thomas’ braided hair.

With Thomas and Ledford in custody, the

officers shifted their attention to the

Cadillac. Purportedly for their own

safety and to confirm that there was

neither an additional suspect nor a

hostage in the trunk of the car, the

officers decided to inspect it. Fort

Wayne police detective Wayne Kelly opened

the trunk while Page, Taylor, and Caudill

(and possibly other officers) stood by

with their guns aimed at it. No person

was discovered inside, and the trunk was

closed after a moment. While the trunk

was open, however, the officers

collectively noticed that it contained a

gun, a bag containing loose U.S.

currency, a hockey mask, and a black knit

cap. Kelly subsequently opened the trunk

for a second time to show another officer

where the second gun was and then re-

closed it after being admonished by his

superiors.

The officers later obtained a search

warrant for the car. In the passenger

compartment of the Cadillac, the police

discovered a black stocking cap with a

pair of gloves and a blue head covering

balled up inside of the cap, a black

hooded sweatshirt, and a pair of white

gloves. Within the trunk, they found a

handgun, a knit cap with eye slits, a

hockey mask, and a plastic bag containing

$6,537 in cash, including $40 in bait

money. A grand jury eventually indicted

Ledford and Thomas on the robbery and

firearm charges.

Ledford and Thomas moved unsuccessfully

to suppress the evidence seized from the

trunk of the Cadillac. They argued that

the police officers lacked the probable

cause necessary to make their initial

warrantless inspection of the trunk. But

after an evidentiary hearing, Judge Lee

concluded that the facts known to the

officers by the time the trunk was opened

supplied probable cause to believe that

the trunk contained contraband and/or

evidence of the bank robbery.

Alternatively, the judge believed that

the possibility that there might be a

firearm and/or another suspect or hostage

within the trunk justified the

warrantless search. The contents of the

trunk were therefore admitted at trial,

and as we have noted, a jury found both

Ledford and Thomas guilty.

Judge Lee sentenced Ledford and Thomas

to prison terms of 147 months, and 181

months, respectively. The pre-sentence

reports indicated that the defendants had

injured the bank employee and customer,

rendering a two-level increase in the

sentencing level appropriate pursuant to

section 2B3.1(b)(3)(A) of the Sentencing

Guidelines. The defendants objected to

the enhancement, but after briefing and

the presentation of testimony the court

overruled the objections in a written

opinion. Judge Lee sentenced each

defendant at the high end of the

sentencing range in view of the ruthless

manner in which the men had treated the

patrons and employees of the bank.

II.

A. Motion to Suppress

Ledford and Thomas contend that the

preliminary, warrantless inspection of

the trunk of their automobile violated

their rights under the Fourth Amendment.

After an evidentiary hearing, Judge Lee

concluded that the search was supported

on either of two grounds: (1) the

officers conducting the search had

probable cause to believe that the trunk

of the automobile contained evidence of

the bank robbery; and (2) the possibility

that there might be a firearm in the

trunk of the car amounted to an exigent

circumstance permitting the search, as

did the possibility that an accomplice or

hostage might be secreted in the trunk.

R. 49 at 6-9. As we noted above,

Detective Kelly actually opened the trunk

of the car not once, but twice, before a

search warrant was obtained. Judge Lee

believed that probable cause supported

the second as well as the first search of

the trunk, id. at 10, but that in any

event the second search yielded nothing

that the first had not already revealed,

rendering the fruits of the latter search

admissible under the independent source

rule, id. at 10-11 (citing Nix v.

Williams, 467 U.S. 431, 104 S. Ct. 2501

(1984), and United States v. Gravens, 129

F.3d 974, 981 (7th Cir. 1997), cert.

denied, 523 U.S. 1035, 118 S. Ct. 1333

(1998)). The defendants do not contest

the judge’s reasoning as to this second

search. Therefore, we need only consider

whether the police were justified in

opening the trunk of the defendants’ car

in the first instance. Our review is, of

course, de novo. Ornelas v. United

States, 517 U.S. 690, 116 S. Ct. 1657

(1996).

As all parties agree, a police officer

may search an automobile without a

warrant, so long as the search is

supported by probable cause. See, e.g.,

Maryland v. Dyson, 527 U.S. 465, 466-67,

119 S. Ct. 2013, 2014 (1999) (per

curiam); Wyoming v. Houghton, 526 U.S.

295, 300-01, 119 S. Ct. 1297, 1300-01

(1999). "Probable cause to search exists

if, given the totality of the

circumstances, there is ’a fair

probability that contraband or evidence

of a crime will be found in a particular

place.’" United States v. Young, 38 F.3d

338, 340 (7th Cir. 1994), quoting

Illinois v. Gates, 462 U.S. 213, 238, 103

S. Ct. 2317, 2332 (1983); United States

v. Patterson, 65 F.3d 68, 71 (7th Cir.

1995), cert. denied, 516 U.S. 1061, 116

S. Ct. 740 (1996); see also Brinegar v.

United States, 338 U.S. 160, 175-76, 69

S. Ct. 1302, 1310-11 (1949). An

automobile search justified by probable

cause may extend to any part of the

vehicle in which evidence or contraband

might be concealed, including, of course,

the trunk of the car. See Houghton, 526

U.S. at 300-01, 119 S. Ct. at 1300-01;

United States v. Ross, 456 U.S. 798, 820-

21, 102 S. Ct. 2157, 2170-71 (1982).

Here, Judge Lee concluded that probable

cause supported the decision to open and

inspect the trunk of the defendant’s

automobile. In so concluding, the judge

focused on what was known not to

Detective Kelly, who did not testify at

the suppression hearing, but to Detective

Page, who was present at the scene and

had his gun pointed at the trunk when

Kelly opened it.

Detective Page knew the following from

information disseminated by Police

Dispatch: the Standard Federal Bank had

been robbed at gunpoint; the robbers were

two black males; the robbers had changed

cars to a champagne-colored Cadillac; the

robbers had opened the trunk of the

Cadillac; a citizen was following the

robbers from the robbery scene and

relaying information by cell phone; the

Cadillac was traveling in the same

direction and same road as the Cadillac

Detective Page had spotted; the Cadillac

he was following contained two black

males; and at the time Detective Page

activated his lights and siren, the

citizen on the cell phone reported that a

police car was now in between the

Cadillac and the citizen. After stopping

the Cadillac, Detective Page found that

one of the suspects was in possession of

a handgun.

R. 49 at 7-8. This information, Judge Lee

reasoned, supplied the officers jointly

with "plenty of probable cause" to

believe that the trunk of the Cadillac

contained the stolen money and other

evidence of the robbery. Id. at 8.

The flaw in the district judge’s

rationale, as the defendants see it, lies

in its focus on what Page knew, as

opposed to Kelly. It was Kelly who opened

the trunk of the car, Ledford and Thomas

emphasize. What Page knew was therefore

irrelevant, because he did not conduct

the search. And because Kelly did not

testify at the suppression hearing, the

record tells us nothing about what he

knew. The government responds that it is

not Kelly’s knowledge alone, but "the

collective knowledge of the law

enforcement officers" that the court must

look to in determining whether probable

cause existed to conduct the search.

Government Br. 17; see, e.g., Tangwell v.

Stuckey, 135 F.3d 510, 517 (7th Cir.

1998); United States v. Nafzger, 974 F.2d

906, 910-16 (7th Cir. 1992); United

States v. Edwards, 885 F.3d 377, 382 (7th

Cir. 1989); United States v. Rodriguez,

831 F.2d 162, 165-66 (7th Cir. 1987),

cert. denied, 485 U.S. 965, 108 S. Ct.

1234 (1988). But according to Leford and

Thomas, the collective knowledge of Page

and Kelly’s other colleagues will not

validate the search absent some evidence

that this knowledge was communicated to

Kelly. See Edwards, 885 F.2d at 382.

We reject the defendants’ argument, for

two reasons. First, Ledford and Thomas

have never asserted, until now, that the

validity of the search turns on Kelly’s

knowledge alone. Although it was quite

clear from the hearing below that the

government was relying on the knowledge

of Kelly’s fellow officers to establish

probable cause (see Tr. Feb. 27, 1998;

see also R. 48 at 5-6), the defendants

never suggested that what those officers

knew must be disregarded (see R. 45).

Consequently, the district court was

never asked to consider the extent to

which Kelly was acting based on the

collective knowledge of his colleagues.

Second, the record makes clear that Kelly

and the other officers jointly conducted

the search of the automobile trunk. That

it happened to be Kelly who actually

opened the trunk does not necessarily

signify that he alone conducted the

search, rendering his knowledge the sole

relevant subject of inquiry. On the

contrary, the record reveals that as

Kelly opened the trunk, Page and at least

two other officers stood nearby with

their guns pointed at the trunk, lest an

accomplice be discovered inside.

Moreover, Page and two other officers

described what they observed inside the

trunk once Kelly had opened it. These

facts suggest that the officers were

acting jointly in the search of the

trunk, and indeed the defendants point to

nothing that suggests otherwise. Because

the search was a joint endeavor, the

court may properly consider what Page and

the other officers knew. See Edwards, 885

F.2d at 383 (imputing knowledge of one

arresting officer to another, "because

they made the arrest together"). Were it

otherwise, the validity of such jointly-

conducted searches might turn on the

fortuity of which officer happened to

open a trunk or door, notwithstanding the

fact that he and his colleagues were

acting in concert. As there is no dispute

that the facts known to Page and the

others supplied probable cause to search

the trunk, Judge Lee was correct to

conclude that probable cause supported

the search.

Having affirmed the probable cause

determination, we need not consider

whether exigent circumstances permitted

the search or, alternatively, whether the

evidence discovered within the trunk

would inevitably have been discovered by

way of an inventory search, as the

government also asserts.

B. Sentencing Enhancement for Injury

Inflicted by Gun

In calculating the sentencing range for

each defendant, the probation officer

proposed, and the district court applied,

a two-level enhancement pursuant to

Guidelines section 2B3.1(b)(3)(A) because

the defendants had inflicted bodily

injury upon one or more persons./1

Ledford and Thomas objected to the

enhancement, but after taking testimony

on the subject, the court concluded that

both the bank customer, McAfee, and the

savings counselor, Arnold, had suffered

"bodily injuries" sufficiently serious to

warrant the enhancement. In a written

opinion, the court reasoned:

Ledford makes reference to the definition

of bodily injury set forth in U.S.S.G.

sec. 1B1.1, commentary B, identifying

bodily injury as "any significant injury;

e.g., an injury that is painful and

obvious, or is of [a] type for which

medical attention ordinarily would be

sought." Memorandum at 1-2. However,

Ledford proceeds to admit that McAfee

received medical treatment. Id. at 2. For

its part, the Government notes that

McAfee, after being struck in the chest

with a firearm, suffered chest pain and

had to be transported to a hospital where

he underwent several hours of tests.

Memorandum at 3. Arnold’s injuries

included bruises from being struck with a

gun in the head and rib area. Id. McAfee

and Arnold, then, suffered injuries that

were painful, obvious, and required

medical attention, meeting the criteria

in the definition Ledford himself offers.

Besides this, the Government provides

cases indicating that bumps and bruises

and injuries that don’t necessarily

require medical attention can constitute

bodily injury under U.S.S.G. sec.

2B3.1(b)(A) (United States v. Hamm, 13

F.3d 1126, 1127 (7th Cir. 1994)); so do

slaps in the face (United States v.

Greene, 964 F.2d 911, 912 (9th Cir.

1992)) and hitting someone’s head or hip

(United States v. Fitzwater, 896 F.2d

1009, 1012 (6th Cir. 1990). Memorandum at

3. The injuries which McAfee and Arnold

suffered, then, fall well within the

range of bodily injuries contemplated by

U.S.S.G. sec. 2B3.1(b)(3)(A).

R. 75 at 5.

The defendants make two challenges to

the bodily injury enhancement. Ledford

and Thomas both argue in the first

instance that the court made no findings

of fact, linked to the record evidence,

in support of the enhancement. See Fed. R.

Crim. P. 32(c)(1). Thomas additionally

argues that because the court employed a

six-level enhancement pursuant to

Guidelines section 2B3.1(b)(2)(B) for the

use of a firearm during the robbery in

calculating his sentencing range (see

n.1, supra), the two-level enhancement

for the bodily injuries that he inflicted

with the gun amounts to impermissible

double-counting. We find no merit in

either argument.

We believe that the district court’s

written opinion, the relevant portion of

which we have recounted above, reflects

findings adequate to sustain the bodily

injury enhancement. It may be true, as

the defendants suggest, that the district

court judge did not make formal, explicit

findings of fact and did not specifically

cite the evidence that he chose to

credit. That level of detail is not

invariably required, however. See United

States v. McKinney, 98 F.3d 974, 981-82

(7th Cir. 1996), cert. denied, 520 U.S.

1110, 117 S. Ct. 1119 (1997). There can

be no doubt in this case that the court

found the defendants responsible for

assaulting both McAfee and Arnold, and

further found that these assaults

resulted in injuries that were

sufficiently "significant" to justify

imposition of the two-level enhancement

under section 2B3.1(b)(3)(A). See R. 75

at 5; see also Ledford Sentencing Tr. 6,

Thomas Sentencing Tr. 10. Further,

although the court’s opinion makes

references to the assertions that the

parties made in their briefs, we reject

the defendants’ suggestion that the court

relied on the briefs alone in imposing

the enhancement. The court obviously

heard and weighed the evidence presented

to it; its citation to the parties’

briefs simply reflects a careful and

balanced consideration of the parties’

arguments. Finally, although the

defendants posit that the court may have

made findings that are inconsistent with

the record evidence, we are satisfied

that any discrepancies are immaterial. In

particular, although the record does not

indicate that Thomas actually struck

Arnold in the head with his gun,/2 and

although McAfee arguably was merely

examined and observed when hospitalized,

rather than "treated" (a point we do not

reach), the record nonetheless

establishes that McAfee was struck in the

chest, and that Arnold was shoved against

the vault door jamb, and that both were

injured as a result--Arnold suffered

bruising on her side and arm, and McAfee

suffered a contusion on his chest. Our

precedents, as the district court

recognized, make clear that such injuries

are cognizable as significant bodily

injuries for which the enhancement may be

imposed. See United States v. Hargrove,

201 F.3d 966, 969-70 (7th Cir. 2000);

United States v. Pandiello, 184 F.3d 682,

685-86 (7th Cir. 1999); Hamm, 13 F.3d at

1127-28.

Imposition of the bodily injury

enhancement, in addition to the

enhancement for "otherwise using" a

firearm, does not amount to impermissible

double-counting as Thomas argues. As our

opinion in United States v. Swoape, 31

F.3d 482, 483 (7th Cir. 1994),

recognizes, section 2B3.1(b)(2) focuses

on the use of the firearm (or another

dangerous weapon), without regard to

whether or not injury results. Accord

United States v. Perkins, 89 F.3d 303,

310 (6th Cir. 1996). By contrast, section

2B3.1(b)(3) is quite obviously concerned

with the consequences of a defendant’s

conduct. See Swoape, 31 F.3d at 483.

Thomas could have "used" his firearm in a

way that injured no one. The fact that

his use resulted in significant injuries

to both McAfee and Arnold justifies the

additional enhancement pursuant to the

bodily injury guideline.

III.

We AFFIRM the defendants’ convictions and

sentences.

/1 Where, as here, the defendant has been convicted

of using or carrying a firearm during and in

relation to a crime of violence in violation of

section 924(c) as well as the underlying crime of

violence itself (in this case, bank robbery),

section 2K2.4, Application Note 2, of the

Guidelines calls upon the court to use two

alternate means of calculating the sentencing

range. The purpose of this exercise is to ensure

that the defendant does not receive a more

lenient sentence by virtue of his additional

conviction under section 924(c) than he would if

convicted of the underlying offense alone. See

U.S.S.G. sec. 2K2.4 comment. (n.2) (1998); United

States v. Patterson, 2000 WL 706020, at *9-*10

(7th Cir. June 1); United States v. Seawood, 172

F.3d 986, 990 (7th Cir. 1999).

In the absence of the section 924(c)

conviction, the court would normally enhance the

offense level for the underlying crime of

violence based on the defendant’s use of the

firearm. If the defendant has also been convicted

under section 924(c), however, these enhancements

will not apply, because the statute mandates a

60-month consecutive sentence for the firearm

conviction. See sec. 2K2.4(a) & comment. (n.2);

Patterson, 2000 WL 706020, at *9. Yet, in a few

cases, the enhancements would actually lengthen

the defendant’s sentence by more than the 60

months that the statute imposes. Id. This is what

presents the possibility of a lesser sentence by

virtue of the additional conviction under section

924(c). Id. at *10.

Thus, where the underlying crime is bank

robbery, as it is here, the court must first

ascertain what the offense level would be

pursuant to the robbery guideline, section 2B3.1,

exclusive of any of the firearms-related

enhancements specified in subsections (b)(2)(A)

through (F) of the guideline; the court then adds

to the resulting sentencing range the mandatory

sentence of 60 months specified by 18 U.S.C. sec.

924(c)(1)(A)(i). The court must next calculate

what the offense level and resulting sentencing

range would be under section 2B3.1 including any

of the firearms-related enhancements called for

in subsections (b)(2)(A) through (F); and in this

calculation the mandatory sentence of 60 months

required by section 924(c)(1)(A)(i) is

disregarded. See sec. 2K2.4, comment. (n.2);

United States v. Triplett, 104 F.3d 1074, 1081

(8th Cir.), cert. denied, 520 U.S. 1236, 117 S.

Ct. 1837 (1997), and cert. denied, 520 U.S. 1270,

117 S. Ct. 2445 (1997).

If, as was true in this case, the first method

of calculating the offense level results in a

lower sentencing range than the second, then the

court may depart upward in order to correct the

disparity. sec. 2K2.4, comment. (n.2); Patterson,

2000 WL 706020, at *10. Here, the district court

departed upward by one level in Ledford’s case

and by two levels in Thomas’ case to achieve that

end.

The bodily injury enhancement that we address

here was among the enhancements that the district

court applied when it calculated what the

sentencing range for each defendant would be in

the absence of the section 924(c) conviction. The

enhancement therefore contributed to the district

court’s decision to depart upward. See R.75 at 6-

10.

/2 The summary of the offense conduct set forth in

the pre-sentence reports for both Ledford and

Thomas does state that Thomas struck Arnold in

the head with the gun. Ledford PSR para. 10;

Thomas PSR para. 10. That summary however, is

based solely on the version of the offense that

the prosecutor supplied to the probation officer.

See Ledford PSR para. 5; Thomas PSR para. 5.

However, what Ms. Arnold testified at trial, and

what she told the probation officer, was that

Thomas shoved a gun against her head, not that he

necessarily pistol-whipped her. See Trial Tr.

Aug. 11, 1998 at 71; Ledford PSR para. 17; Thomas

PSR para. 17. Nonetheless, she did suffer

bruising and pain to her head as a result. See

Ledford PSR para.para. 10, 17; Thomas PSR

para.para. 10, 17.

Referenced Cases