2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-9-2013

USA v. Danny Bannout

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-4209

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-4209

___________

UNITED STATES OF AMERICA

v.

DANNY BANNOUT

a/k/a 

D

Danny Bannout,

 Appellant

_______________________

On Appeal from the United States District Court

for the District of New Jersey

D.C. Criminal No. 2-10-cr-00366-002

(Honorable William H. Walls)

______________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 7, 2013

Before: SCIRICA, AMBRO and FUENTES, Circuit Judges.

(Filed: January 9, 2013)

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

Defendant Danny Bannout pled guilty to two conspiracy charges and was 

sentenced to 190 months’ imprisonment. On appeal, he challenges the District Court’s 
2

calculation of the amount of loss and its finding that he was an organizer or leader of the 

conspiracy. He also contends there is an unwarranted disparity between his sentence and 

those of his co-defendants. We will affirm.

I.

Bannout and Kelvin Jones orchestrated an armed robbery of a perfume warehouse 

in Carlstadt, New Jersey on February 9, 2010.1 Jones, an NYPD officer, recruited fellow 

officers to stage a phony police raid of the warehouse. They brandished their badges and 

firearms, and restrained and robbed the employees. Meanwhile, Bannout led a crew of 

individuals who loaded rental trucks with merchandise from the warehouse and 

transported the merchandise to storage units rented by Bannout. He was arrested several 

months later and pled guilty to conspiracy to obstruct interstate commerce by armed 

robbery, 18 U.S.C. § 1951(a).2

The District Court found that Bannout was an organizer or leader of the warehouse 

robbery and increased his offense level by four under the U.S. Sentencing Guidelines 

Manual (U.S.S.G.) § 3B1.1. The court increased the offense level by three based on the 

amount of loss, under U.S.S.G. § 2B3.1(b). Bannout’s adjusted offense level was 34, and 

when combined with his criminal history category of II resulted in a Guidelines range of 

168-210 months. The court sentenced him to 190 months’ imprisonment, and made the 

 1 A jury convicted Jones of several counts stemming from the robbery, and a different 

panel of this court affirmed.

2 Bannout also pled guilty to conspiracy to transport stolen goods in interstate commerce, 

18 U.S.C. § 2314, a charge stemming from an unrelated theft from a storage facility. This 

charge had no effect on his Guidelines calculation. 
3

sentence run concurrent to an 87-month sentence imposed by the Southern District of 

New York for an unrelated narcotics offense. On appeal, Bannout challenges the court’s 

calculation of the loss and its finding that he was a leader or organizer of the robbery, and 

contends there is an unwarranted disparity between his sentence and those of his fellow 

conspirators.3

II.

A.

Bannout argues the District Court erred in calculating the loss, asserting there was 

a lack of evidence substantiating the court’s calculation and the three-level increase to his 

offense level under U.S.S.G. § 2B3.1. However, Bannout withdrew this objection at 

sentencing. Accordingly, he has waived this argument. See United States v. Streich, 560 

F.3d 926, 929 n.1 (9th Cir. 2009) (citing United States v. Olano, 507 U.S. 725, 733 

(1993)).

Alternatively, Bannout argues the court should have exercised its discretion to 

depart downwards under U.S.S.G. § 2B1.1 cmt. n.19, on the ground that the loss 

calculation overstated the seriousness of the offense. The court considered this argument 

at sentencing and declined to exercise its discretion. “[W]e lack jurisdiction to review” 

the discretionary denial of a downward departure “unless the District Court was unaware 

of its discretion to grant the motion.” United States v. King, 604 F.3d 125, 141 n.9 (3d 

Cir. 2010) (citing United States v. Cooper, 437 F.3d 324, 332-33 (3d Cir. 2006)). 

 3 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
4

Accordingly, Bannout has not raised a cognizable issue on appeal with respect to the 

court’s loss calculation.4

B.

Bannout next argues the court erred by finding he was an organizer or leader of 

the warehouse robbery and increasing his offense level by four under U.S.S.G. § 

3B1.1(a). Section 3B1.1 of the Sentencing Guidelines provides that a defendant’s offense 

level shall be increased four levels if “the defendant was an organizer or leader of a 

criminal activity that involved five or more participants or was otherwise extensive,”

whereas a three-level increase applies if the defendant was a manager or supervisor of the 

criminal activity. U.S.S.G. § 3B1.1. “‘[I]n distinguishing a leadership and organizational 

role from one of mere management or supervision . . . . [f]actors the court should 

consider include the exercise of decision making authority, the nature of participation in 

the commission of the offense, the recruitment of accomplices, the claimed right to a 

larger share of the fruits of the crime, the degree of participation in planning or 

 4 In any event, Bannout’s challenge to the loss calculation lacks merit. Bannout argues 

the court erroneously found the loss was greater than $250,000 by relying on 

unsubstantiated insurance claims and failing to credit merchandise that was recovered 

based on information he gave to the government. We review the court’s finding as to the 

amount of the loss for clear error and exercise plenary review over its interpretations of 

the guidelines. United States v. Jimenez, 513 F.3d 62, 85 (3d Cir. 2008).

To determine the amount of loss, the court relied on a letter from the victims 

explaining the loss, a detailed list of inventory stolen in the robbery, and checks from 

insurance companies compensating the victims for some of their losses. Contrary to 

Bannout’s argument, the loss calculation is not affected by the fact that some of the stolen 

merchandise was later recovered. See United States v. Rivera-Rivera, 555 F.3d 277, 293 

(1st Cir. 2009) (“It is of no moment that the [stolen] items were recovered and returned.”)

(citation omitted). We see no clear error. 
5

organizing the offense, the nature and scope of the illegal activity, and the degree of 

control and authority exercised over others.’” United States v. Ortiz, 878 F.2d 125, 127 

(3d Cir. 1989) (second and third alterations in original) (quoting U.S.S.G. § 3B1.1 cmt. 

n.4). Not all these factors need to be present for a finding that the defendant was an 

organizer or leader. Id. We review such a finding for clear error. Id.

Bannout argues that he was merely a manager or supervisor of the robbery, and 

that Jones was the leader or organizer of the conspiracy and robbery. He focuses on the 

facts that Jones recruited and led the team of NYPD officers who raided the warehouse 

and restrained the employees, and that Jones also decided to rent two extra trucks to carry 

more stolen merchandise. But “[t]here can, of course, be more than one person who 

qualifies as a leader or organizer of a criminal association or conspiracy.” U.S.S.G. § 

3B1.1 cmt. n.4. And the record shows that the robbery of the warehouse was Bannout’s 

idea. Bannout approached Jones and they planned the robbery together, modeling it after 

a similar robbery the two previously committed. Bannout recruited at least four 

individuals to participate in the robbery, organized the rental of the trucks used to 

transport the stolen goods, and rented the facilities used to store the goods. He led the 

team of individuals who loaded and transported the stolen goods. Bannout also received a 

higher share of the proceeds than most of the conspirators, with the possible exception of 

Jones. Accordingly, we see no clear error in the court’s finding that Bannout was a 

leader or organizer of the conspiracy.

C.

Finally, Bannout contends the court erred by failing to justify the disparity 
6

between his 190-month sentence and the sentences of his co-conspirators, some of which 

were in the range of 50-75 months. When imposing a sentence, a court must consider 

“the need to avoid unwarranted sentence disparities among defendants with similar 

records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). A 

defendant challenging his sentence based on § 3553(a)(6) must show that his 

“circumstances exactly paralleled” those of the defendants who received lower sentences. 

United States v. Iglesias, 535 F.3d 150, 161 n.7 (3d Cir. 2008) (citation omitted). We 

review for abuse of discretion. King, 604 F.3d at 145.

The District Court did not abuse its discretion. The court based Bannout’s withinguidelines sentence, in part, on his role as a leader in the robbery, the fact he was on bail 

when he committed the robbery, and his life of crime. He has not even argued, much less 

made a showing, that other defendants were similarly situated. Bannout points only to the 

fact that some of his co-conspirators participated in the raid of the warehouse, posing as 

police officers and brandishing firearms. But, as the court acknowledged, Bannout plotted 

the raid and thus shared responsibility for these acts. Several of Bannout’s coconspirators also cooperated with the government. Accordingly, we see no unwarranted 

disparity between similarly situated defendants.

5

III.

For the foregoing reasons, we will affirm the judgment and sentence of the District 

Court.

 5 To the extent Bannout argues the court completely failed to consider this sentencing 

factor, we disagree. See, e.g., A123.