PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 07-4978

RONALD EVERETT KETCHUM,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Robert J. Conrad, Jr., Chief District Judge.

(5:06-cr-00026-RJC)

Argued: October 31, 2008

Decided: December 24, 2008

Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Shedd wrote the opinion, in which Judge Michael and Judge Duncan joined.

COUNSEL

ARGUED: Randolph Marshall Lee, Charlotte, North Carolina, for Appellant. Adam Christopher Morris, OFFICE OF

THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert,

United States Attorney, Charlotte, North Carolina, for Appellee.
OPINION

SHEDD, Circuit Judge:

Ronald Ketchum pled guilty and was convicted of taking

money from a bank "by force and violence, or by intimidation" in violation of 18 U.S.C. § 2113(a), but he now appeals

his conviction, arguing that the district court erred in finding

a sufficient factual basis for his plea. We reject his contention

and affirm the conviction.

I

The following facts are not disputed. On February 14,

2006, Ketchum entered a Bank of America branch in Lenoir,

North Carolina, and handed a teller a note that read: "These

people are making me do this." After the teller read the note

and placed it aside, Ketchum stated: "They are forcing me and

have a gun. Please don’t call the cops. I must have at least

$500." The teller placed $1,686 into a bag and gave it to

Ketchum. Ketchum asked the teller to return the note to him,

and he then exited the bank with the note and money. The

teller followed Ketchum to the door and recorded the license

plate on his vehicle. Ketchum was apprehended a short time

later, and he voluntarily confessed to law enforcement officers that he had committed the crime.

As a result of the foregoing, a federal grand jury indicted

Ketchum on two counts arising under the federal bank robbery statute, 18 U.S.C. § 2113. The first count, brought pursuant to § 2113(a), charged Ketchum with taking the money

from the bank "by force, violence and intimidation;" the second count, brought pursuant to § 2113(b), charged him with

taking the money from the bank "with intent to steal and purloin."1

1The terms "bank robbery" and "bank larceny" do not appear in the text

of §§ 2113(a) or 2113(b), see Carter v. United States, 530 U.S. 255, 266-

2 UNITED STATES v. KETCHUM
Without having a plea agreement, Ketchum appeared

before a magistrate judge for a plea hearing. Ketchum

expressly consented to proceed with the plea hearing before

the magistrate judge. During this hearing, the magistrate judge

explained Ketchum’s rights to him and stated that a district

judge would hold a later hearing to determine whether a factual basis for the plea existed and to impose his sentence.

Although there was some discussion about whether Ketchum

could ultimately be sentenced for both charged crimes, the

magistrate judge and the parties agreed that the issue would

be resolved by the district judge. Ketchum then pled guilty to

both of the charged crimes. Finding that Ketchum’s plea was

knowingly and voluntarily made, the magistrate judge

accepted the plea.

Before sentencing, Ketchum filed several objections to the

presentence report ("PSR"). Pertinent to this appeal, Ketchum

objected to the probation officer’s recommendation that he

receive a two-level enhancement pursuant to U.S.S.G.

§ 2B3.1(b)(2)(F) for making a threat of death. Ketchum

argued that he did not make such a threat, but if he did, it was

directed at himself. Ketchum also objected to having judgment entered against him for bank robbery and bank larceny,

arguing that bank larceny is a lesser-included offense of bank

robbery.

67 (2000), but an offense under § 2113(a) is commonly referred to as

"bank robbery," and an offense under § 2113(b) is commonly referred to

as bank larceny, see, e.g., United States v. Carter, 540 F.2d 753, 754 (4th

Cir. 1976). Although these crimes are "very similar," they "are most strikingly differentiated by the element of ‘force and violence, or . . . intimidation’ which is required for conviction of bank robbery, but not for bank

larceny." Id. The penalty for bank larceny is less severe than for bank robbery, but bank larceny is not a lesser-included offense of bank robbery.

Carter v. United States, 530 U.S. at 259. We note that Carter v. United

States abrogated United States v. Walker, 75 F.3d 178 (4th Cir. 1996), in

which we had reaffirmed circuit precedent holding that bank larceny is a

lesser-included offense of bank robbery. See 530 U.S. at 260. 

UNITED STATES v. KETCHUM 3
Ketchum thereafter appeared before a district judge for sentencing. At the beginning of the sentencing hearing, the district judge inquired whether Ketchum still intended to plead

guilty, and Ketchum responded that he did. The district judge

then inquired whether a factual basis exists to support the

plea. The parties stipulated that the underlying facts are set

forth in the PSR. Based on that stipulation, the district judge

found that the plea is supported by an adequate factual basis.

Having accepted Ketchum’s plea, the district judge considered Ketchum’s objections to the PSR. In presenting the

above-noted objections, Ketchum’s attorney stated (inter alia)

that he did not "take issue with the underlying facts of this

case," J.A. 43, but he noted that "there may be an insufficient

factual basis . . . to sustain a conviction for bank robbery,"

J.A. 45. For that reason, Ketchum’s attorney asked the district

court to dismiss the bank robbery count and sentence

Ketchum on the bank larceny count. The district judge ultimately concluded that Ketchum had in fact made a threat

using "language of intimidation," J.A. 50, but that he had not

made a threat of death. Accordingly, the district judge sustained Ketchum’s objection to the two-level enhancement and

overruled his other objections. The district court sentenced

Ketchum to a prison term of 60 months on the bank robbery

count and dismissed the bank larceny count.

II

As noted, Ketchum contends that an insufficient factual

basis exists to support his conviction for bank robbery. Specifically, Ketchum argues that there is no evidence that he

used "intimidation" to commit the bank crime.2 Without such

evidence, Ketchum cannot be guilty of § 2113(a) bank robbery because there is no contention that he used force or violence to commit the crime. See United States v. Davis, 915

F.2d 132, 133 (4th Cir. 1990) (noting that § 2113(a), "by its

2Ketchum does not challenge any other aspect of his conviction. 

4 UNITED STATES v. KETCHUM
terms, cannot be violated unless property is taken ‘by force

and violence’ or ‘by intimidation’").

A.

Federal Rule of Criminal Procedure 11(b)(3) requires the

district court to determine whether a factual basis exists

before entering judgment on a guilty plea. As we recently

explained:

The rule is intended to ensure that the court make

clear exactly what a defendant admits to, and

whether those admissions are factually sufficient to

constitute the alleged crime. The requirement to find

a factual basis is designed to protect a defendant who

is in the position of pleading voluntarily with an

understanding of the nature of the charge but without

realizing that his conduct does not actually fall

within the charge.

United States v. Mastrapa, 509 F.3d 652, 659-60 (4th Cir.

2007) (citations and internal punctuation omitted). It is "well

settled that a defendant may raise on direct appeal the failure

of a district court to develop on the record a factual basis for

a plea. . . ." United States v. Mitchell, 104 F.3d 649, 652 n.2

(4th Cir. 1997).

In making the Rule 11(b)(3) determination, the district

court "possesses wide discretion," and it "need only be subjectively satisfied that there is a sufficient factual basis for a conclusion that the defendant committed all of the elements of the

offense." Mitchell, 104 F.3d at 652. The district court is not

required to "replicate the trial that the parties sought to

avoid," id., or to "rely only on the Rule 11 plea colloquy,"

Mastrapa 509 F.3d at 660. Rather, the district court "may

conclude that a factual basis exists from anything that appears

on the record," id. (citation and internal punctuation omitted),

and "it may defer its inquiry until sentencing," United States

UNITED STATES v. KETCHUM 5
v. Martinez, 277 F.3d 517, 531 (4th Cir. 2002). A "stipulated

recitation of facts alone [is] sufficient to support a plea. . . ."

United States v. Wilson, 81 F.3d 1300, 1308 (4th Cir. 1996).

We review the district court’s finding of a factual basis for

abuse of discretion, and "we will not find an abuse of discretion so long as the district court could reasonably have determined that there was a sufficient factual basis based on the

record before it." Mastrapa, 509 F.3d at 660.3

B.

The "intimidation element of § 2113(a) is satisfied if an

ordinary person in the teller’s position reasonably could infer

a threat of bodily harm from the defendant’s acts, whether or

not the defendant actually intended the intimidation." United

States v. Woodrup, 86 F.3d 359, 364 (4th Cir. 1996) (internal

punctuation omitted). "Under this test, the subjective courageousness or timidity of the victim is irrelevant; the acts of

the defendant must constitute intimidation to an ordinary, reasonable person." United States v. Wagstaff, 865 F.2d 626,

627-28 (4th Cir. 1989) (citation omitted).

The "display of a weapon, a threat to use a weapon, or even

a verbal or nonverbal hint of a weapon is not a necessary

ingredient of intimidation under § 2113(a)." United States v.

Gilmore, 282 F.3d 398, 402 (6th Cir. 2002). Moreover,

"[i]ntimidation does not require proof of express threats of

3The magistrate judge’s participation in the plea proceeding accords

with our precedent. See United States v. Osborne, 345 F.3d 281 (4th Cir.

2003) (holding that magistrate judges are authorized to conduct plea proceedings and that de novo review by a district judge is not required unless

the defendant requests such review or objects to some aspect of the magistrate judge’s plea colloquy); United States v. Benton, 523 F.3d 424 (4th

Cir.), cert. denied, 129 S. Ct. 490 (2008) (holding that magistrate judges

are authorized to accept guilty pleas); United States v. DeFusco, 949 F.2d

114, 116 (4th Cir. 1991) ("In reviewing the adequacy of compliance with

Rule 11, this Court should accord deference to the trial court’s decision

as to how best to conduct the mandated colloquy with the defendant."). 

6 UNITED STATES v. KETCHUM
bodily harm, threatening body motions, or the physical possibility of a concealed weapon." Id. at 403. Indeed, intimidation

generally may be established based on nothing more than a

defendant’s written or verbal demands to a teller, as the Sixth

Circuit has explained:

A review of the case law reveals that making a written or verbal demand for money to a teller is a common means of successfully robbing banks. Demands

for money amount to intimidation because they carry

with them an implicit threat: if the money is not produced, harm to the teller or other bank employee

may result. Bank tellers who receive demand notes

are not in a position to evaluate fully the actual risk

they face.

Id. at 402;4see also United States v. Hill, 187 F.3d 698, 701

(7th Cir. 1999) (holding that a "defendant’s actions can rise

to the level of intimidation if he confronted a bank employee

during the commission of the crime, even if the defendant was

unarmed or did not explicitly threaten a bank employee");

United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983)

(holding that although "the evidence showed that [the defendant] spoke calmly, made no threats, and was clearly

unarmed, . . . the threats implicit in [his] written and verbal

demands for money provide sufficient evidence of intimidation to support the jury’s verdict").5

4

In Gilmore, the Sixth Circuit held that "unequivocal written and verbal

demands for money to bank employees are a sufficient basis for a finding

of intimidation" under § 2113(a). Gilmore, 282 F.3d at 403. 

5

In Hopkins, the defendant presented a note to the teller that read: "Give

me all your hundreds, fifties and twenties. This is a robbery." 703 F.2d at

1103. After the teller replied that she had no hundreds or fifties, the defendant stated: "Okay, then give me what you’ve got." When the teller left

the bank window (ostensibly to get the money) and went to the vault, the

defendant "left the bank in a nonchalant manner." Id.

UNITED STATES v. KETCHUM 7
C.

Viewed in this light, we conclude that the evidence is sufficient to establish that Ketchum took the money from the bank

"by intimidation." After presenting the note to the teller that

read, "These people are making me do this," Ketchum then

stated, "They are forcing me and have a gun. Please don’t call

the cops. I must have at least $500." In response, the teller

gave Ketchum $1,686, and he left the bank. Ketchum thus not

only confronted the teller and made a verbal demand for

money, which alone may be sufficient to constitute intimidation, but he also referenced a gun. The fact that Ketchum did

not specify who possessed the gun or how the gun would be

used is immaterial because an ordinary person in the teller’s

position reasonably could infer that the gun would be used

against the teller (or perhaps someone else) if Ketchum’s

demand for money was not met. See generally United States

v. Epps, 438 F.2d 1192, 1193 (4th Cir. 1971) (finding that

note that read "Put all your money in this bag and nobody will

get hurt" sufficient to sustain conviction for bank robbery by

intimidation).6

6Ketchum argues that his comments regarding the gun can be construed

only to imply that he (rather than a teller) was at risk and, consequently,

he was merely appealing to the teller’s sympathy. Although not directly

on point, the Ninth Circuit addressed a somewhat similar argument in

United States v. Strandberg, 952 F.2d 1149 (9th Cir. 1991), which was an

appeal from a sentencing enhancement for an "express threat of death"

under U.S.S.G. § 2B3.1(b)(2)(F). During the bank robbery, the defendant

(who apparently was alone) told the teller not to pull the alarm "or my

friend will start shooting." 952 F.2d at 1150. On appeal, the defendant

argued that he did not expressly threaten death because "the threat did not

indicate that a person would be shot." Id. at 1151. However, the Ninth Circuit affirmed the enhancement, noting that § 2B3.1(b)(2)(F) "does not

require that the defendant state that he intends to kill the teller if his

demands are not met," and concluding that "a reasonable person hearing

the words ‘my friend will start shooting’ if the . . . alarm is pulled would

experience significantly greater fear than the level of intimidation that is

necessary to constitute an element of the offense of robbery." 952 F.2d at

1151. 

8 UNITED STATES v. KETCHUM
Ketchum’s reliance on our decision in Wagstaff is misplaced. In that case, we found insufficient evidence to sustain

a § 2113(a) bank robbery conviction where the defendant,

who never came within eight feet of a teller, walked through

an open gate and removed money from an open cash drawer.

We held that because the defendant "was neither wearing nor

carrying a weapon, produced no note and said nothing, and

made no threatening gestures," the evidence was insufficient

as a matter of law to support a conclusion that he committed

the crime by intimidation. Id. at 629. The Wagstaff facts are

wholly inapposite to this case, where Ketchum directly confronted a teller and mentioned a gun during his demand for

money.

III

Based on the foregoing, we hold that the district court did

not abuse its discretion in finding sufficient facts to support

Ketchum’s plea to § 2113(a) bank robbery. Accordingly, we

affirm the judgment.

AFFIRMED

UNITED STATES v. KETCHUM 9