Appeal from the United States District Court for the Southern District of Texas. D.C. DOCKET NUMBER CR-H-92-30-1 c/w CR-92-081-1-H. JUDGE Norman W. Black
Before Garwood, Jones and Emilio M. Garza Circuit Judges.
In this appeal from the sentence imposed following his plea of guilty to three charges of bank robbery, defendant-appellant Marion J. Adams (Adams) challenges only the district court's denial of his request for a downward departure in consideration of his disclosure of prior offenses, pursuant to U.S.S.G. § 5K2.16, policy statement (p.s.). We affirm.
In June and July of 1991, Adams went on a three-week spree in which he robbed three banks, one in Mobile, Alabama, and two in Houston, Texas, in an effort to obtain money to support his drug habit. The modus operandi in each robbery was similar: in each, Adams approached a teller for help with a simple transaction; when the teller opened the cash drawer, he jumped up on the counter, grabbed money from the drawer, and fled from the bank.*fn1
Adams was implicated in the Alabama robbery when the description of the robber provided by persons in the bank at the time of the robbery proved to be similar to that of the defendant, then known as Jay Adams, who at that time was under investigation by the Mobile Police Department for burglary and illegal possession of credit cards taken in a burglary. Pictures of "Jay Adams" were included in a photographic lineup presented to witnesses of the bank robbery; three witnesses positively identified defendant as the bank robber.
On July 24, 1991, officers of the Houston Police Department stopped Adams for a traffic violation. When a routine computer check revealed that he was wanted in Alabama for escape from an Alabama state prison, the officers took him into custody. Adams later confessed to the three bank robberies.
On December 19, 1991, Adams was indicted in the United States District Court for the Southern District of Alabama on one count of bank robbery, in violation of 18 U.S.C. § 2113(a).
On February 5, 1992, in the United States District Court for the Southern District of Texas, Adams was charged by information with two counts of bank robbery, in violation of 18 U.S.C. § 2113(a), stemming from the robbery of the two Houston banks. Adams waived indictment in the Texas proceedings and agreed to a transfer of the Alabama case to the Southern District of Texas, where it was later consolidated with the other two bank robbery charges pending against him.
At his rearraignment, Adams pleaded guilty to all three counts of bank robbery in exchange for the government's promise to stipulate to Adams's acceptance of responsibility and for its agreement not to file additional charges related to the three bank robberies.
A presentence report (PSR) prepared by Adams's probation officer calculated his offense level at 23, with a criminal history category of VI, resulting in an imprisonment range of 92 to 115 months.*fn2 In a sentencing recommendation to the district court, the probation officer recommended that the court depart upward to sentence Adams to 125 months' imprisonment, a departure justified by the defendant's extensive criminal history, which included convictions for burglary not utilized in the computation of his criminal history category.
In his objections to the PSR, Adams argued, inter alia, that he was eligible for a downward departure pursuant to U.S.S.G. § 5K2.16, p.s., for his actions in ...