PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4217

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ERNEST LEE WILLIAMS, JR., a/k/a Big Cat,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Malcolm J. Howard, 

Senior District Judge. (5:14-cr-00173-H-1)

Argued: September 23, 2016 Decided: November 10, 2016 

Before TRAXLER, SHEDD, and FLOYD, Circuit Judges.

Vacated and remanded by published opinion. Judge Floyd wrote 

the opinion, in which Judge Traxler and Judge Shedd joined.

ARGUED: Jaclyn Lee DiLauro, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Raleigh, North Carolina, for Appellant. Donald 

Russell Pender, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, 

North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, 

Federal Public Defender, Stephen C. Gordon, Assistant Federal 

Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, 

North Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney, 

Assistant United States Attorneys, OFFICE OF THE UNITED STATES 

ATTORNEY, Raleigh, North Carolina, for Appellee.
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FLOYD, Circuit Judge:

Ernest Lee Williams, Jr., was charged with attempting to 

enter a bank with the intent to commit a felony affecting it, 

and a larceny, all in violation of 18 U.S.C. § 2113(a). 

Williams pleaded guilty to the charge, and was then sentenced 

under the robbery guideline, U.S.S.G § 2B3.1. Williams appeals 

his sentence, arguing that the robbery guideline is inapplicable 

in this case because his indictment contained no mention of the 

robbery element of force and violence, intimidation, or 

extortion. We agree with Williams, and we therefore vacate his 

sentence and remand this matter for resentencing. 

I.

On January 21, 2014, Williams approached a Southern Bank 

building (the “Bank") in Rocky Mount, North Carolina, while 

wearing gloves and covering his face in a hood. Williams 

entered the Bank’s exterior doors into an anteroom, but before 

he could enter past the interior doors, a teller who believed 

she recognized Williams from a previous robbery locked both the

interior and exterior doors. The teller then asked Williams 

through an intercom whether Williams had an account with the 

Bank, and Williams replied that he did, but that he had left his 

bank card in his car. The teller unlocked the exterior doors, 

and instructed Williams to use the drive-up window. Williams 

returned to his car, but then drove off.
3

The police were notified and given a description of 

Williams’s vehicle. The police stopped Williams shortly 

thereafter, and in a show-up, Williams was identified by a Bank 

employee as the person who had tried to enter earlier. After 

being read his rights, Williams admitted to the police that --

in need of money -- he cased the Bank, and then wore gloves and 

covered part of his face. He had neither a gun nor a note with 

him when he tried to enter the Bank. Williams insisted that he 

had simply planned to tell the bank tellers to put the Bank’s 

money in his bag.

On August 27, 2014, a federal grand jury in the Eastern 

District of North Carolina indicted Williams for violating 18 

U.S.C. § 2113(a). In relevant part, the grand jury charged 

Williams with “attempt[ing] to enter a bank . . . with the 

intent to commit in such bank a felony affecting such bank, in 

violation of a statute of the United States, and a larceny, all 

in violation of Title 18, United States Code, Section 2113(a).” 

J.A. 7. On January 6, 2015, Williams pleaded guilty to the

charge.

Violations of § 2113(a) are potentially covered by four 

Sentencing Guideline sections -- of relevance here are U.S.S.G. 
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§ 2B3.1 (Robbery) and § 2B2.1 (Burglary).1 Following the plea, 

the probation officer calculated Williams’s imprisonment range 

under the Guidelines by using the robbery guideline, U.S.S.G. 

§ 2B3.1. Specifically, the probation officer calculated 

Williams’s imprisonment range at 37 to 46 months. This range 

derived from a total offense level of 19 and a criminal history 

category of III. Section 2B3.1 provided a base offense level of 

20, which was increased by two levels because Williams’s crime 

targeted a financial institution. See U.S.S.G § 2B3.1(b)(1). 

The resulting offense level of 22 was then reduced by three 

levels for acceptance of responsibility, resulting in a final 

offense level of 19. 

Williams objected to the application of U.S.S.G. § 2B3.1 to 

his offense. Williams contended that the indictment to which he 

pleaded guilty described an attempted burglary, not an attempted 

robbery, because it did not reference force or violence. Thus, 

as between the two relevant guidelines that could apply to a 

violation of § 2113(a) –- the robbery guideline and the burglary 

guideline -- Williams insisted that he should be sentenced under 

the latter. Williams reasoned that if the burglary guideline

 1 A violation of § 2113(a) may also implicate U.S.S.G. 

§ 2B3.2 (Extortion by Force or Threat of Injury or Serious 

Damage) or U.S.S.G § 2B1.1 (Larceny, Embezzlement, and Other 

Forms of Theft). See U.S.S.G. App’x A. Both parties, however, 

agree that neither guideline applies in this case.
5

was used, his total offense level would be 10, which in this 

case would yield an imprisonment range of only 10 to 16 months. 

The probation officer, meanwhile, contended that the 

robbery guideline applied in this case, because it -- unlike the 

burglary guideline -- contained an enhancement accounting for

the fact that Williams targeted a financial institution. 

On April 8, 2015, Williams’s sentencing hearing took place. 

After hearing both sides’ arguments, the district court was 

convinced that the robbery guideline was appropriate in this 

case because it addressed the targeting of financial 

institutions. The district court found Williams’s imprisonment 

range under the robbery guideline to be 37 to 46 months, and 

sentenced him to a term of 38 months. This appeal followed.

II.

On appeal, Williams contends that his sentence should have 

been calculated using the burglary guideline, rather than the 

robbery guideline. We review challenges to the district court’s 

guideline selection de novo. United States v. Davis, 202 F.3d 

212, 218 (4th Cir. 2000). We agree with Williams that the 

district court’s selection of the robbery guideline was 

erroneous, because only the burglary guideline applies here.

A.

The Sentencing Guidelines direct a sentencing court to 

“[d]etermine the offense guideline section . . . applicable to 
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the offense of conviction.” U.S.S.G. § 1B1.2(a). At times, 

however, “the offense of conviction ‘appears to fall under the 

express terms of more than one guideline[.]’” United States v. 

Boulware, 604 F.3d 832, 836 (4th Cir. 2010) (brackets omitted) 

(quoting United States v. Lambert, 994 F.2d 1088, 1092 (4th Cir. 

1993)). In such cases, “the sentencing court must choose the 

guideline that is ‘most applicable’ by comparing the guideline 

texts with the charged misconduct, rather than the statute 

(which may outlaw a variety of conduct implicating several 

guidelines) or the actual conduct (which may include factors not 

elements of the indicted offense).” Id. (emphasis added)

(internal quotation marks and brackets omitted) (quoting 

Lambert, 994 F.2d at 1092).

The charge that Williams pleaded guilty to plainly 

describes an attempted burglary, not an attempted robbery. 

Williams was charged with a violation of § 2113(a), which

provides:

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 . . .; 

or

Whoever enters or attempts to enter any bank . . ., or 

any building used in whole or in part as a bank . . ., 

with intent to commit in such bank . . ., or part 

thereof, so used, any felony affecting such bank . . . 
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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.

18 U.S.C. § 2113(a). “As its text makes clear, subsection 

2113(a) can be violated in two distinct ways: (1) bank robbery, 

which involves taking or attempting to take from a bank by force

[and violence], intimidation, or extortion; and (2) bank 

burglary, which simply involves entry or attempted entry into a 

bank with the intent to commit a crime therein.” United States 

v. Almeida, 710 F.3d 437, 440 (1st Cir. 2013) (emphasis added). 

Williams was indicted for attempting to enter a bank with 

an intent to commit a felony and larceny therein -- i.e., a bank 

burglary. Moreover, his indictment failed to reference “the 

element of ‘force and violence, or [extortion or] intimidation’ 

which is required for conviction of bank robbery” under 

§ 2113(a). United States v. Ketchum, 550 F.3d 363, 365 n.1 (4th 

Cir. 2008) (quoting United States v. Carter, 540 F.2d 753, 754 

(4th Cir. 1976)). Therefore, when one compares the applicable 

burglary and robbery guidelines with the language of Williams’s 

indictment, it is clear that Williams should have been sentenced

under the burglary guideline.2 

 2 Cf. Almeida, 710 F.3d at 439–43 (vacating a § 2113(a)-

defendant’s sentence under the robbery guideline, because the 

district court did not exclusively consider the indictment 

(Continued)
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B.

In selecting the robbery guideline over the burglary 

guideline, the district court stressed that only the robbery 

guideline contained an enhancement for the targeting of 

financial institutions (the “Bank Enhancement”) like the one 

Williams targeted. The government defends this selection by 

citing two unpublished Fourth Circuit cases that justified the 

use of the robbery guideline for a § 2113(a) violation on the 

basis of the Bank Enhancement: United States v. Sutton, 401 F. 

App’x 845 (4th Cir. 2010) (per curiam), and United States v. 

Johnson, 68 F. App’x 402 (4th Cir. 2003) (per curiam). Because 

those cases do not justify imposing a robbery guideline-based 

sentence on a defendant that only pleaded guilty to an attempted 

burglary, the district court’s selection was erroneous. 

To begin, Johnson is distinguishable. Johnson held that 

where an indictment for violating § 2113(a) charges an attempt 

to obtain property from a bank via extortion, the robbery 

guideline is more appropriate than the extortion guideline 

because only the robbery guideline “permits an enhancement for 

attempting to obtain money from a bank.” 68 F. App’x at 405. 

 

language that “tracked that of § 2113(a)’s bank burglary prong,” 

but instead improperly considered trial testimony “which 

described conduct that amounted to bank robbery, i.e., taking 

from a bank by force, violence, or intimidation”).
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In Johnson, however, the indictment charged the elements of both 

robbery and extortion, id., and so the Bank Enhancement merely 

functioned as a sensible tie-breaker between the robbery and 

extortion guidelines. In contrast, only the burglary guideline 

applies in this case, because Williams’s indictment omits the 

robbery element of force and violence, intimidation, or 

extortion. As such, Johnson provides no sanction for the 

district court’s use of the inapplicable robbery guideline. 

Sutton is distinguishable for similar reasons. As in 

Johnson, a panel of this Court in Sutton relied on the Bank 

Enhancement in selecting the robbery guideline over an 

alternative guideline (there, the burglary guideline) to 

sentence a defendant convicted of violating § 2113(a). Sutton, 

401 F. App’x at 847–48. But as in Johnson, the panel in Sutton

was satisfied that the indictment at issue actually described 

“robberies.” Id. at 848. Because Williams’s indictment cannot 

be read to describe even an attempted robbery, the government’s

reliance on Sutton here is misplaced.3

 3 We acknowledge, however, that the panel in Sutton may have 

incorrectly characterized the indictment at issue as describing 

“robberies.” In the paraphrased version of the indictment 

offered in the Sutton opinion, there was no reference to the 

robbery element of force and violence, intimidation, or 

extortion. See 401 F. App’x at 847 (“[T]he indictment charged 

Fields and his codefendants with breaking into and stealing 

United States currency from automated teller machines containing 

‘money in the care, custody[,] and control of Lumbee Guaranty 

(Continued)
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C.

In this case, the precedent we find most instructive is 

this Court’s published decision in Boulware. There, the 

indictment charged the defendant with making a false statement 

to a bankruptcy court via nondisclosure of prior bankruptcies; 

however, the indictment did not charge that the nondisclosure 

was part of a plan to defraud creditors. Boulware, 604 F.3d at 

835-36. This Court reasoned that the perjury guideline should 

apply, rather than the fraud guideline, because the perjury 

guideline best fit the offense described in the indictment. Id.

at 836. It so held despite the objecting party’s observation 

that the fraud guideline contained a specific offense 

characteristic referencing bankruptcy proceedings, while the 

perjury guideline lacked any analogous provision. Id. This 

Court dismissed that observation as being “of little 

consequence,” reasoning that the fraud guideline was unfitting 

where “the gravamen of the charge was that [the defendant] 

 

Bank, a bank whose deposits were then insured by the Federal 

Deposit Insurance Corporation,’ in violation of 18 U.S.C. 

§ 2113(a).”). To the extent that the unpublished Sutton opinion 

implies that the element of force and violence, intimidation, or 

extortion is unnecessary to describe a robbery, we expressly 

reject that position, for it is contrary to well-settled law. 

See Ketchum, 550 F.3d at 365 n.1; Carter, 540 F.2d at 754; see 

also Almeida, 710 F.3d at 440—41.
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interfered with the bankruptcy court’s administration of 

justice, not that she defrauded any creditors.” Id. 

Likewise, the robbery guideline’s use of the Bank 

Enhancement is of little consequence here, because the gravamen 

of Williams’s charge was that he attempted to commit a burglary, 

not a robbery. Simply put, where an indictment omits an element 

of an offense, the guideline corresponding to that offense is 

inapplicable, even if the alternative guideline’s provisions do 

not account for certain details that the indictment charges. 

Nonetheless, we do not consider whether the absence of a 

potentially relevant provision (here, the Bank Enhancement) 

under the correct guideline justifies a variance at sentencing. 

We leave that issue for the district court to address on remand 

in the first instance. 

III.

For the foregoing reasons, we vacate Williams’s sentence,

and remand this case to the district court for resentencing 

under the burglary guideline.

VACATED AND REMANDED