The Honor able Ha rold A. Ac kerma

n, Senior United States District J udg e for the District * of Ne w J erse y , sitti ng by

desig nation. 1 NO T REC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION File Na me: 07a0735n.06 Filed: Oc tober 15, 2007 No. 06-5214 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT
UNI TED STATES OF AMERI CA, P laintif f-App ellee,
v. WI L L I AM STAMPS , J R., De fend ant s- App e lla nt s.

______________________________ _________ )

) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UN I TE D ST AT ES D I STR I CT CO UR T F OR

TH E WE STE RN DI STRI CT OF TEN

NESSEE

OP IN ION Before: BATCHELDER, DAUG HTREY, Circuit Judges; ACK ERMAN, D istrictJudge. * HAROLD A. ACK

ERMAN, D istrictJudge. This appea l derives f rom a plea
a g re e me nt a

nd su bs e qu e nt s e nte nc ingof

De fe nd ant Wi lli am Sta

mps , Jr. Stamps ple d guil ty to one count of

bank robbe ry

in violation of 18 U.S.C. § 2113(a) and wa s sentence d to 170 months of inca rce ration. F or the followingrea sons, the District Court properly established a suf

ficient fac tual basis for Stamps’s guilty plea, a dequate ly

explained its sentencing rationale , and imposed
a se nte nc e that w a s r e a so na ble . T he re fo re , w e wi ll AF F IRM the District Court’s sentenc e.Se c tio n 2 11 3( a ) p ro vid e s: 1 Whoever, by forceand violence , or by intimidation , ta

ke s, or a tte mpt s to t ake , f ro m th e pe rs on

or pr e se nc e of ano the r, or

ob ta ins or

a tte mpt s to obtain by

extort i o n an y

proper ty or money

or any other thingof value be longingto, or in the care, c ustody , control, mana g ement, or possession of, any

bank . . . [s] hall be fine d under this title or imprisoned not more than twe nty y ear s, or both. 18 U.S.C. § 2113(a) (e mphasis added)
. 2 I. On Se pte mbe r 3 0, 20 05 , D e fe nd ant Wi lli am Sta mps , Jr. , r ob be d a

n A m So uth

B ank in Memphis, Tennesse e, af

ter he approa ched a

bank teller

and hande d over a

note that stated “ Give me stack of

hundreds no dye.” A fter the teller ha nded over $1,050 in cash, Stamps demande d more money

and patted or

pulled at his waistband. The teller re sponded that she did not have any more money , and Stamps fled fr om the bank with the ca sh orig inally passed to him. Stamps d i d n o th av e a

g und ur i n g th e c o m m i s s i o no f

th e r o b b e r

y. On Octobe r 5, 2005, the police rec eived a tip that St amps was the pe rpetrator, and picke d him up fo r q ue sti on ing . A ft e r h e wa s a dv ise d o f h is r ig hts , St amps g ave a state me nt a dmi tti ngto the bank r obbery . Stamps was later ide ntified in a photo line-up by the teller a

nd two other ba

nk
e mpl oy e e s. On Novembe r 1, 2005, Stamps appea red be fore District J udg e Jon P . McCalla and ple d g uilty to a one- count Information pursua nt to a written plea

ag ree ment. The Information stated that “On or

about September

30, 2005 . . . Wil liam Stamps, by forc e, violence and intimidation d i d t ak e f r o mth e p e r s o nan d

p r e s e n c e o f

an o th e r m o n e y b e l o n g i n g t o an d

i nth e c ar e , c u s t o dy, control, mana g ement and posse ssion of Am South Bank . . . a ba nk whose de posits were the n insured by

the [FDI C] ; in violation of [ 18 U.S.C. § 2113(a)].” (J.A. at 6.) 13

The Probation Of

fice prepa red a pre- sentenc e re port (“PSR”) usingthe 2004 edition of the SentencingGuidelines. The PSR indicates that when Stamps robbe d the Am South Bank, he was on super

vised rele ase stemmingfrom a 1999 c onviction for the r obbery of three Mississ ippi banks for which he r ece ived 92 months imprisonm ent on all counts. Prior to that, Stamps was convicted in 1995 of

first deg ree burg lary

of an inha

bited dwelling and wa s sentence d to four y ear s of custody . The PSR li sted at leng th Stamps’s approxi mately 26 other a

rre sts between 1991 and Oc tober 2001, re sulting in 17 criminal history points, which qualified him for Criminal History Categ ory VI . Probation indicated that Stamps qualified for an off ense le vel enha

nceme nt under U .S.S.G. § 4B1.1 as a “ car eer offe nder.” After

the offe nse leve l was adjusted downw ard fo r h is a c c e pta

nc e of re sp on sib ili ty , th e PSR c a lc ula te d St amps ’s re su lti ngtot a l of fe ns e le ve l to be 29 , c or re sp on din gwi th a

Gu ide lin e s im

pr iso nme nt r ang e of

15 1 to 18 8 mo nth s. At the Fe bruar

y 1, 2006, sentenc ing he aring , Stamps did not object to the PSR’s factual
a c c ur a c y or the Gu ide lin e s se nte nc ingc a lc ulatio n, but r a the r p ro ff e re d w hat he c ha

ra c te ri zed a s a “policy argument.” (J.A. at 54-55.) Stamps’s attorne y reiter ated at the sentenc ing he aringthat Stamps wa s “ no t arguin g that he is n ot a c are e r o ff

e nd e r u nd e r t he Gu ide lin e s, but . . . th a t he is not a ty pical off ender that the SentencingCommi ssion contemplated oblig ing that particular status.” (J.A. at 58.) Acc ordingto Stamps, t his is because he is not “someone who has eng ag ed in violent behavior or be havior whe re the re is thre atene d harm to other individuals.” ( Id. ) Stamps personally

addre ssed the Court and state d that he wa s not a violent person; he a sserted that this is evidenced by

the fa ct that when g iven “the oppor tunity to be violent” during commission of his crimes, “I simply run aw ay .” (J.A. at 63-64.) Thus, Stamps reque sted that the Di str ic t Co ur

t no t se nte nc e him

a s if he we re a

c are e r o ff

e nd e r, and

rathe r s e nte nc e him

wi thi nB e c a us e Stamps ha s a

lon g his tor

y of su bs tanc e a bu se , th e Di str ic t Co ur

t a lso 2 re c omm e nd e d th at he be a llo we d to pa rt ic ipate in a

50 0- ho ur dr ugtr e a tme nt p ro g ra

m. This Court has appellate jurisdiction over this appea l pursuant to 28 U.S.C. § 1291. 3 4 the Gu ide lin e s r ang e wi tho ut t he c are e r o ff

e nd e r a dju stm e nt, 63 to 7 8 mo nth s. The District Court re

jected Stamps’s a

rgument and sente nced him to 170 months imp ri so nme nt, thr e e y e ars su pe rv ise d r e le a se , a

nd $1 ,0 50 in r e sti tut ion
. Stamps fi le d a tim e ly 2
a pp e a l. 3

II. A. The Di st r ic t C our t a de quat e ly i nfor m e d t he De fend antof t he c har ge and t he De f en d a n t u n d er s to o d th e n a tu re o f th e c h a rg e a g a i n s t h i m. Stamps a sse rt s f

or the fi rs t ti me on

a pp e a l th a t he did

no t e nte r h is guil ty

ple a kn ow ing ly and intellige ntly , beca

use the District Court fa iled to comply adequately

with Fede ral Rules of Criminal Procedure 11(b)( 1) and ( 2). Stamps argues that he did not under stand the cha rg e of bank robbe ry , and, more specific ally , the essential e lement of “ forc e, violence , or intimidation.” Stamps a lso argue s th at th e Di str ic t Co ur t f a ile d to e sta

bli sha fa c tua l ba sis fo r h is guil ty ple a in compliance with Rule 11(b)(3)
. To be va lid, a plea a g ree ment must be entere d into knowingly , voluntarily , and intelligently
. Brady v. U

nited States , 397 U.S. 742, 748 (1970). “Rule 11 r equire s that a district court ve rify

that the def

endant’ s plea is voluntary and that the de fenda

nt understands his or he r
a pp lic a ble c on sti tut ion a l r ig hts , th e natur e of the c ri me c ha

rg e d, the c on se qu e nc e s o f t he g uil ty plea, a nd the fa ctual basis for

concludingthat the def

endant c ommitt ed the c rime cha rg ed.” United States v. W

ebb , 403 F.3d 373, 378- 79 (6th Cir. 2005); Fe d. R. Crim. P . 11(b)( 1)-( 3). “[A]The plain e rror rule re quires Stamps to show that there is “1) err or, 2) that is plain, and 4 3) that a ff e c ts s ub sta

nti a l r ig hts . I f a ll thr e e c on dit ion s a re me t, a n a pp e llate c ourt

may e xer c ise its dis c re tio n to no tic e a

fo rf e ite d e rr or , b ut o nly

if 4) the e rr or

se ri ou sly a ff e c ts the fa ir

ne ss, integ rity , or public re putation of the judicial proc eeding s.” United States v. Murdoc k, 398 F.3d 4 9 1 , 4 9 6 (6 thC i r. 2 0 0 5 ) ( qu o t i n g Johnson v. U nited States , 520 U.S. 461, 467 (1997)) ( internal quotation marks omitted). 5 plea doe s not qualify

as intellige nt unless a cr iminal defenda nt first rec eives re al notice of the true nature of the char g e ag ainst him.” W ebb , 403 F.3d at3 7 9 (c i t i n g Bousley v . United States , 523 U.S. 614, 618 (1998)). B eca use Stamps did not object contempora neously to the District Court’s alleg ed er

rors, this Court review s his claim for plain er ror. United States v. Vonn , 535 U.S. 55, 59 (2002). 4 At the outse t of

the ple a he ari ng , th e Di str ic t Co ur t qu e sti on e d St amps a

bo ut h is education and health, lea

rningthat Stamps completed a year and a ha lf of colleg e and that he was not taking me dication or unde r the c are of a phy sician. Stamps indicated that he w as re prese nted by counsel, that he had pre viously been g iven a c opy

of the one -count Information, and that he had re viewed it with his attorney and under stood it. Thus, t he District Court deter mined that Stamps was “fully

competent a

nd capa ble of e nteringan informe d plea.” (J.A. at 45.) A r ev i ew o f t h e p l eah ea ri n g i n d i ca t es th atS t am p s wa s ad equ at el y i n fo rm edo f t h e c h ar ge
a g a ins t hi m, a

nd that he un de rs too d th e natur e of the c ha rg e . A t th e ple a

he ari ng , Jud g e Mc Ca lla repe atedly

rea d the eleme nts of the bank r obbery char g e and the individual paragraphs of the plea ag ree ment. Stamps stated that he knew the char g e to which he was plea ding guilty , and that he
was a war e of the corr espondingmaxi mum twenty -year penalty and $250,000 fine . The District Court reiterated ea ch ele ment of the c harg e and a sked Stamps if he under stood what theFor example, the District Court noted: “The g overnme nt would have to prove eac h and 5 ever y part, that would include that the bank wa s insured by the [FDI C,] . . . that y ou took the money by forc e, violence , and intimidation and not by some other method[,] . . . t hat the money [y ou too k] w a s a c tua lly

in t he c are , c us tod

y , c on tr ol, mana g e me nt, po sse ssi on of Am South Ba nk. All those things individually have to be shown, that is elements have to be shown for y ou to be found guilty . So y ou understand what the g overnme nt has to prove a g ainst y ou? ” (J.A. at 41-42.) Stamps replied in the a ffirmative. 6 Gover nment would have to pr ove as to e ach e lement. Eac h time, Stamps responded in the 5
a ff ir mativ e . Jud g e Mc Ca lla

re pe ate d th e Ind ic tme nt, no tin g sp e c if ic a lly that on e of

the e le me nts of the c harg e wa s that he took money from the ba

nk “by forc e, violence and intimidation.” ( Id. at 41 .) Whe n a sk e d w he the r h e wa s awa re that if he did no t pl e a d guil ty , th e Go ve rnme nt w ou ld have to pr ove all of the elements of the crime f or which he was c harg ed, Stamps responde d in the aff irmative. The District Court questioned Stamps about the fa ctual basis for the cha rg e. Stamps responde d that he “g ave a note to one of the tellers askingfor money , . . . they g ave me what they had, like it was a

thousand dollars, I

think, and she said that’s a ll she had, so I left.” ( J .A. at 42.) Whil e Sta mps wa s d e sc ri bin g the e ve nts of the ro bb e ry , Jud g e Mc Ca lla e ng a g e d th e De fe nd ant i n th e f o l l o w i n g c o l l o quy:

Court: Did y ou indicate in s o m e wa y t h at y ou could forc e

[ th e t e l l e r ] t o g i v e yo um o n e y? Stamps: No sir. Court: But you did give h er a note and she didn’t know

whether y ou h ad t h e abil ity

to – whether

y ou had a g un or no t? Stamps: Well, Ididn’t have a g un. Court: Iunderstand. ( Id. at 42-43.) T hus, Stamps did not admit that he used violenc e or f orce to car

ry out the bank robber y . This, however , did not preclude the District Court from findingthat Stamps took t he7

money from the teller

by intimi dation. The Gove rnment then de scribed what it was pre pare d to prove, includingthe fa ct that
a ft e r t he te lle r h and e d St amps the mon e y , h e “ de mand e d mo re mon e y a nd patte d o r p ull e d at hi s waistband.” (J.A. at 43.) After this recitation, the District Court aske d if Stamps had any ob je c tio ns or

c or re c tio ns , to wh ic h St amps re sp on de d “ Ime an y e s, Yo ur Ho no r. . . . I

am ju st saying that Ididn’t have a g un or any

thing.” ( Id. a t 44 .) Th e Di str ic t Co ur t r e sp on de d to thi s statement by

noting that the G overnme nt did not indi cate that he had a g un, but that the Gover nment intended to demonstrate the eleme nt of intimi dation by the sug g estion that he had the ability to enforc e his threat. See infra p. 10. Stamps acknowledg ed this expl anation, ra ised
n o f urth e r o b j e c t i o n s , an d

i m m e d i at e l y th e r e a f

t e r s t a t e d th a th e w i s h e d

t o p l e a d g u i l ty. On appe al, Stamps asserts that he “ repe atedly voiced his objec tion to an essential eleme nt of the c rime.” ( Stamps Br. at 4.) The r ecor d sug g ests otherwise. A t the plea he aring , the District Court c are fu lly e xpla ine d to Stamps the natur e of the ba nk ro bb e ry c ha rg e purs ua

nt t o 1 8 U .S. C. § 2113(a) , and its individual elements. Throug h its questioning, the District Court deter mined that Sta mps ha d th e c a

pa c ity to u nd e rs tand , a

nd in f a c t did understand, the nature and ele ments of the c ha rg e . Jud g e Mc Ca lla

a pp ro pr iate ly

re sp on de d to Sta

mps ’s re pe a te d s tate me nts that he did not have a

g un duringthe robbe ry

by explaining the re lationship between the acts to which Stamps admitt ed, and the elements of the char g e. Specif ically , the District Court stated that the Gover nment need only

show that Stamps took the bank’s money by intimi dation or by

the sug g estion that he had the ability to enforc e the thre at. Althoug h, in respondingto the District Court’s question, Stamps asserted that he did not indicate that he c ould force the teller to g ive him the mon e y , St amps did

no t ob je c t to , o r i nd ic a te that he did no t un de rs tand , th e mos tIn fac t, Stamps asserts that he stated at the plea he aringthat he “took the mone y but . . . 6 didn’t take it by

forc e, violence or intimidati on .” (Stamps B r. at 21 (e mphasis added) .) Howeve r, Stamps also conce des that this statement ca nnot be locate d any

wher e in the re cord. ( Id. ) B e c a us e Stamps ha s n ot p ro pe rl y mov e d f or a c or re c tio n o r m od if

ic a tio n o f t

he re c or d in confor mance with Fede ral Rule of A ppellate Proc edure 10(e) , this Court need not addre ss nor countena nce this self- servingasser tion. In his sentencingmemorandum, Stamps responde d to the Gover nment’s alleg ation that 7 duringthe robbe ry

he had de manded more money and pulled at his wa istband. Stamps sugg ested that “[i] t is undisput ed that the wa y one pulls up his pants is to pul led [sic] them up at the waistband.” (J.A. at 23.) I mportantly , howeve r, Stamps does not aff irmatively

state that this was the re a so n w hy

he pu lle d at hi s w a ist

ba nd . O nly on a pp e a l do e s Sta

mps a sse rt

that he wa s me re ly “pulling up his pa

nts,” and that “ this action was not in any way intended to imply

possession of a wea pon or intimidat[ ion] .” (J.A. at 8.) De fenda nt’s counsel re peate d this purported explanation a t or a l argume nt. 8 signific ant eleme nt of the cha rg e: that he took the money by intimi dation. I mportantly , Stamps

6 did no t ob je c t to the Go ve rnme nt’ s f a c tua l f ind ingthat he ha d p ull e d o n h is w a ist ba nd wh ile demandingmore money

from the teller
. Contrary to his argument on appea l, Stamps’s mere 7
a sse rt ion s at th e ple a

he ari ngthat he did

no t ha ve a g un duri ngthe ba

nk ro bb e ry do no t in dic a te that he fa iled to understand the nature of the char g e or its eleme nts. Accor dingly , we f ind that the District Court proper ly acc epted Stamps’s guilty plea be cause the re cord r efle cts that Stamps
rec eived r eal notice of the true nature of the c harg e ag ainst him, W ebb , 403 F.3d at 379, and that Stamps had a suffic ient understandingof the ba nk robber y char g e and the element of intimi dation. Thus, Stamps entered into the plea ag ree ment knowing ly , voluntarily , and i n t e l l i g e n t l y. We a lso fi nd

that th e Di str ic t Co ur

t pr op e rl y e sta bli sh e d a fa c tua l ba sis fo r a

ple a of g uil ty under 18 U .S.C. § 2113(a), and that Stamps used inti midation to carry out the robber

y . See McCarthy v . United States , 394 U.S. 459, 467 (1969) (holding that a “judg e must determine that the conduc t which the def endant a dmits constit utes the off ense c harg ed in the indictment or9

information or a

n offe nse included the rein to which the defe ndant has plea ded guilty . Requiring this ex amination of the re lation betwee n the law a nd the ac ts the defe ndant admits having
c omm itt e d is de signe d to pr ote c t a de fe nd ant who is i n th e po sit ion of ple a din g vo luntari ly

wi th an under standing of the nature of the char g e but without rea liz ing that his conduct does not actua lly fall within the cha

rg e.”) (citations and inter nal quotation marks omitted). This Court

“ ty pic a lly re vie w[s ] a d e fe nd ant’ s c ha lle ng e to t he fa c tua l ba sis fo r h is guil ty ple a un de r a n a bu se of discre tion standard. Howe ver, a defe ndant who fa ils to obj ect on Rule 11 g rounds bef ore the district court must demonstrate plain e rror .” Un ite d S tates v . B y rd , 2 20 F . App ’x 42 1, 42 4 ( 6th C i r. 2 0 0 7 ) ( ci t i n g Un ite d S tates v . B e nn e tt , 2 91 F .3 d 8 88 , 8 94 (6 th C ir . 2 00 2) ; United States v. Vonn , 535 U.S. 55, 59 (2002)). Th e te st f or int imi datio n is e sse nti a lly an o bje c tiv e on e : “ wh e the r a n o rd ina ry pe rs on in the teller’ s position could reasonably infer a threat of bodily

harm fr om the defe ndant’s ac ts.” Un ite d S tates v . G ilm or e , 282 F.3d 398, 402 ( 6th Cir. 2002). “In the context of section 2113(a ), intimi dation is defined a s ‘an a ct by a def endant r easona

bly calc ulated to put another in fea r, or conduct a nd words ca lculated to cr eate the impression that any resistanc e or de fianc e by the individual would be met by forc e.’” United States v. Thomas , No. 05-6246, 2007 WL1310162, at *8 (6th Cir. May

4, 2007) (not pre cede ntial) (citingUnited States v. W aldon , 206 F.3d 597, 606 (6th Cir. 2000)). F or example, in Gi lm or e , this Court held that a defe ndant’s unequivoc al written and or al demands f or money to bank tellers we re suf

ficient to prove intimi dation under 18 U. S.C. § 2 11 3( a ). 28 2 F .3 d at 40 3- 04 ; see also id. at 402-03 (“ [T] he display of a w eapon, a threat to use a we apon, or e ven a ve rbal or nonve rbal hint of a w eapon is not a ne cessa ry ingre die nt o f i nti mid atio n und e r § 21 13 (a ).
. . . Inti mid a tio n d oe s n ot r e qu ir e pr oo f o f e xpre ssAs we note d at ora l argument, bank teller s ordinarily do not free ly

hand over

money for 8 no rea son; here, the bank teller must have fe lt some deg ree of intimidation or else she would not have c omplied with St amps’s dema nd. Although Stamps conc edes that he pled guilty to bank robbe ry

under 18 U .S.C. § 9 2113(a) , he ar g ues for

the first time on appe al that the District Court should have c onsidered a sentenc e base d on § 2113(b), ba nk larc eny --a

charg e that does not include an ele ment of violence, f

orce , or intimidation. S tamps’s argument in this reg ard is without merit. In Gi lm or e , this Court not ed that “[a] reviewof the c ases on § 2113( b) re veals that this statute is not util ized in c a se s w he re ind ivi du a ls p re se nt d e mand s to ba nk te lle rs . Ins te a d, the ba

nk larc e ny statut e is applicable in case s where persons stea l from a ba nk’s automated te ller mac hine (“ ATM”) ; and other thef ts from banks not involving a dang er of

bodily harm.” 282 F.3d at 404 (citations omitted). 10 threats of bodily

harm, thre ateningbody

motions, or the phy sical possibilit y of a c oncea led
wea pon.”). N otably , the cour t in Gilmore re c og nize d th a t “ [d]e mand s f or mon e y amou nt t o intimi dation beca

use they car ry with them an implicit threat: if the money is not produced, ha

rm to the teller or othe r bank e mploy ee ma y result. B ank teller s who rec eive de mand notes ar e not in a position to evaluate fully the ac tual risk they

fac e.” Id. at 402. Her e, Stamps descr ibed in his own words the de mand note that he pa ssed to the teller. H e failed to objec t to the Governme nt’s asser tion that after r ece iving the $1,050, he demande d more money from the teller

while pattingor pulling at his waistband. The District Court noted that althoug h Stamps may

not think that he actually used for ce, violenc e or intimidation during the commission of his crime, “[w]here one pe rson is confr onted with another person de manding money , there is [ an] impl icit, if not ex plicit, threat. . . . In this case, it would proba bly be both.” 8 (J.A. at 70.) J udg e McCalla stated that “[c]learly , the per son who g ave the money up perc eived that th e y we re [sic ] be ingro bb e d a nd pe rc e ive d th a t th e re wa s a n im pli c it - - I thi nk the y wo uld have sa id there w as an e x plicit threat.” (J.A. at 70.) Acc ording ly , we f ind that the District Court 9 proper ly established a suf

ficient fa ctual basis for

Stamps’s guilty

plea unde r 18 U.S.C. § 2113(a).11

B. The District C ourt’s sente nce was reasonable. Stamps also challeng es his sentenc e, cla iming that the District Court er red by including his care er of

fende r status in the ca lculation of his sentenc ing r ang e, and, mor e g ener ally , that the D i s tr i c tC o urtf

a i l e d t o c o n s i d e r

th e 1 8 U
. S
. C
. 3 5 5 3 ( a ) f

a c t o r s a d e qu a t e l y. Un de r t he Gu ide lin e s, a

de fe nd ant q

ua lif ie s a s a “ c are e r o ff

e nd e r” if (1 ) h e wa s at le a st eig hteen year s-old at the time he c ommitt ed the instant off ense of conviction; (2) the instant offe nse of c onviction is a felony that is a crime of

violence; a

nd (3) he has at lea st two prior felony convictions that wer e “c rimes of violenc e.” U .S.S.G. § 4B1.1(a) . The ter m “cr ime of violence” is defined by

the Guidelines a s “any

offe nse under

fede ral or state law, punishable by imprisonment for a ter

m exceedingone y ear , that -- ( 1) has a s an ele ment the use, attempted use,
o r t h re at en edu s e o f p h y s i ca l fo rc e a gai n s tth e p er s o no f a n o th er , o r ( 2 ) i s b urgl ary o f adwe l l i n g . . . .” U.S.S.G. § 4B1.2( a)( 2). This Court has re cog nized that when

deter mining whe ther a particula r off ense c onstitut es a . . . “ crime of violence” under the Guidelines, [i t] employ s a categ orica l approa ch limit ed to an examination of the fac t of conviction and the statutory de fi nit ion of the pr e dic a te of

fe ns e . Un de r thi s a

pp ro a c h, it i s n ot o nly impermissible, but point less, for the c ourt to look through to the defe ndant’s act u al cr i m i n al co n d u ct
. In d ee d , th e c at ego ri ca l ap p roach eliminates the pra ctical diff iculties and potential unfa irness of a fac tual approa ch to ea ch prior c onviction. United States v. Butler , 207 F.3d 839, 843 ( 6th Cir. 2000) (interna l citations and quotation marks omitted). At the sentenc ing he aring , Stamps im plored the D istrict Court to sentence him within a rang e of 63 to 78 months imprisonment, which repr esents the a dvisory Guidelines ra

ng e without consideration of his care er of fende r status. Howe ver, Stamps’s cur rent a nd prior convic tionsStamps made this same conc ession to the District Court in his sentencing 10 memorandum. (J.A. at 22, 58.) 12 c le arl y qu a lif y him fo r a se nte nc inga dju stm e nt a s a c are e r o ff

e nd e r. Stamps wa s 3 8 y e ars old when he robbed the Am South Bank a nd it is undi sputed that bank robbe ry under 18 U .S.C. § 2113(a) qualifies as a

crime of violence. N otably , Stamps concede s on appea l that his prior burg lary of a home and thre e convic tions for bank robbe ry “tec hnically

qualify him for Care er Of fe nd e r s tatus un de r t

he Gu ide lin e s. ” (S tamps B r. a t 16 ; see also U.S.S.G. § 4B1.2 cmt. n.1 10 (2004) ( “cr ime of violence ” includes r obbery and burg lary

of a dw elling) .) Thus, Stamps
conce des that he pr operly qualified for

the ca ree r off ender enhanc ement, and, f

or the re asons discussed above , the District Court did not err by including Stamps’s c are er of fende r status under § 4B1.1( a) in the c alculation of the Guidelines ra ng e. Thus, the a

pplicable a dvisory

sentenc ing
ra ng e wa s 1 51 -1 88 months
. Stamps also argues that the District Court fa iled to properly consider the 18 U.S.C. § 3553(a) fac tors, and as suc h, it render ed an unr easona bly harsh se ntence . Stamps’s primary contention in this reg ard is that duringthe commission of the instant offense , and all other s that comprise his admittedly

“extensive” c riminal history , (Stamps Reply Br . at 4), he was not violent. Rather, whe n “pre sented with the opportunity to be violent,” Stamps asserts that he “simply run[s] awa

y .” (J.A. at 64.) Although the crimes that support his ca ree r off ender status “tec hnically

qualify as cr imes of violence ,” Stamps asserts that “ it is apparent no r eal use of violence, or

even thr eat ther eof, w as utiliz ed.” ( Stamps Br. at 17-18.) Acc ording ly , Stamps
ar g u e s th a th i s c ar e e r

o f f e n d e r s t atu s “ o v e r

r e p r e s e n t [ s ] ” th e s e r i o u s n e s s o f h i s c r i m i n a l h i s t o r

y, and that his lack of

violent conduct should have g uided the District Court to rende r a lowe r13

sentenc e in ac corda

nce w ith its discretion under United States v. Book er , 543 U.S. 220 (2005). At the sentenc ing he aring , the Gover nment argued that a Guidelines sentenc e wa s
rea sonable, in par

t beca use Stamps committed the instant offense only three months after be ing
re le a se d f ro m pr iso n f

or his pr ior ba nk ro bb e ri e s. Ad dit ion a lly , th e Go ve rnme nt w arn e d th a t a
se nte nc e be tw e e n 6 3 a

nd 78 months wo uld

dim ini shthe se ri ou sn e ss o f t he ins tant o ff

e ns e beca use such a

sentenc e would be shor

ter than the sentenc e he r ece ived for his pre vious bank
ro bb e ry c onvic tio ns . This Court reviews c riminal sentence s for re asonable ness, Booke r , 543 U.S. at 264; W ebb , 403 F.3d at 383, and cr edits sentence s proper ly calc ulated under

the Guidelines with a rebuttable presumption of re asonable ness, United States v. W illiams , 436 F.3d 706, 708 ( 6th Cir. 2006). See also Rita v. United States , 551 U.S. ---, 2007 WL1772146, at *6 (June 21, 2007) (holding that “a c ourt of appe als may apply a pre sumption of reasona bleness to a district cour

t
se nte nc e that r e fl e c ts a

pr op e r a pp lic atio n o f t

he Se nte nc ing

Gu ide lin e s” ). Stamps ’s 17 0- month sentenc e wa s within the Guidelines rang e of 151 to 188 months, and thus is presumed
rea sonable. Contrary to Stamps’s assertion, J udg e McCalla ide ntified the § 3553(a ) fa ctors, and addre ssed them in detail. See U nited States v. Kirby , 418 F.3d 621, 626 ( 6th Cir. 2005) (noting that a dis tr ic t c ourt

“ ne e d n ot r e c ite the [ § 35 53 (a )] f a c tor s b ut m

us t art ic ulate its re a so nin g in decidingto impose a sentenc e in orde r to allow for rea sonable a

ppellate r eview” ) (c itation omitted). The District Court noted that bank r obbery is a serious cr ime and re cog nized the need for the c ourt to rende r a suf ficiently long se ntence to protect the public f rom the De fenda

nt’s criminal pre dilections. The District Court expressed its alar m that Stamps commi tted the instantThe PSR indi cate d that Stamps was rele ased f rom custody

on J une 13, 2005, less than 11 four months befor e he c ommitt ed the instant off ense. ( J .A. at 92.) See, e .g. , U
. S
. S
. G
. § 2 B 3
. 1 ( b ) ( 2 ) ( “ ( A ) If a f i r e ar mw a s d i s c h ar g e d , i n c r e a s e b y 7 12 levels; (B ) if a f

irea rm was other

wise used, incr ease by

6 levels; (C) if a

firea rm was br andished o r p o s s e s s e d , i n c r e a s e b y 5 l e v e l s ; ( D ) i f a d an g e r o u s w e a

p o nw a s o th e r

w i s e u s e d , i n c r e a s e b y 4 levels; (E) if

a dang erous we apon wa s brandished or possessed, incr ease by

3 levels.”)
. 14 of fe ns e so qu ic kly

a ft e r h e ha d b e e n r e le a se d f ro m pr iso n o n h is p ri or

ba nk ro bb e ry c onvic tio ns . 11 The District Court re

jected Stamps’s c ontention that he neve r ac tually used phy sical violence duringthe commission of his crimes, noting that someone who is conf ronted by another person de mand ingmon e y

e xpe ri e nc e s th e thr e a t of vio le nc e e xplic itl y

or imp lic itl y . With r e g ard

to Stamps’s contention that he wa s not armed dur ing the commission of the instant offense , the District Court noted that had he a ctually used, display ed, bra

ndished or discha

rg ed a w eapon, the Guidelines ca lculation would have be en much hig her. 12 Th e Di str ic t Co ur

t a c kn ow le dg e d St amps ’s dr ugpr ob le m, b ut n ote d th a t it did no t e xcu se his responsibility

for his ac tions. Finally , the District Court expressly indicated that it consider ed the a pp ro pr iate § 3 55 3( a ) f

a c tor s b e fo re iss uin g the wi thi n- Gu ide lin e s se nte nc e . Jud g e Mc Ca lla noted that he thoug ht 170 months was an appr opriate se ntence , as “[i] t give s some rec og nition that you ’r e no t th e wo rs t guy in t he g ro up , . . . but a lso g ive s so me re c og nit ion that you c ame ba c k in the sy ste m awf

ull y qu ic kly , a

nd Ithi nk that th e re are lot s o f i ssu e s th a t ne e d to be de a lt with, and may

be this will beg in the proce ss of doing that.” (J.A. at 77.) Ac cording ly , we f ind that the District Court adequa tely explained its reasoningfor the se ntence , and that the se ntence imposed was re asonable . Thus, we a ffirm Stamps’s sentenc e.15 III . F or the fo re g oin g re a so ns , th e Di str ic t Co ur t’ s ju dg me nt o f c onvic tio n a nd se nte nc e is h e r e b y AF F IRM ED
.