Submitted: April 14, 2016
from United States District Court for the Northern District
of Iowa - Cedar Rapids
COLLOTON and SHEPHERD, Circuit Judges, and MOODY,  District
COLLOTON, Circuit Judge.
Waddell pleaded guilty to one count of robbery and aiding and
abetting robbery and one count of conspiracy to commit
robbery, in violation of the Hobbs Act. See 18
U.S.C. § 1951. The district court sentenced Waddell
to 57 months' imprisonment. Waddell appeals and argues
that the district court committed procedural error when
determining his sentence. We affirm.
conviction arose from a robbery that occurred in June 2014.
Two of Waddell's associates, Leonard Landt and Snofawn
Torres-Webber, hatched a plan to rob a man in Cedar Rapids,
Iowa. Landt and Torres-Webber knew that the intended victim
was a drug dealer, and they told him about a prospective
buyer of methamphetamine. The victim, unaware that he was the
mark, drove Landt and Torres-Webber to Waddell's
apartment, expecting to meet the buyer.
the group arrived at Waddell's apartment, Landt and
Torres-Webber entered the apartment and informed Waddell of
their intentions. At some point, the trio began to record
their conversations on a cellular telephone. In a matter of
minutes, they agreed on a course of action. They discussed
how much force to use during the robbery and decided to use
physical force but no weapons. Landt referred to Waddell as a
"sergeant at arms" and spoke of Waddell's
ability to intimidate and harm others.
three robbers then proceeded to the victim's car. They
entered the vehicle, with Torres-Webber sitting in the front
passenger seat, Landt sitting behind the victim, and Waddell
sitting beside Landt and behind Torres-Webber. As the camera
continued to record, Landt placed the victim in a chokehold
and threatened to harm him. Torres-Webber and Waddell looked
for drugs and money and asked the victim where to find those
items. After they located the victim's backpack, Waddell
took it back to the apartment. Landt and Torres-Webber
followed shortly thereafter. Landt and Torres-Webber kept the
drugs and money that the group seized from the victim;
Waddell did not share in the proceeds.
complains that the district court, in calculating a
sentencing range under the advisory guidelines, should have
adjusted his offense level downward based on a mitigating
role in the offense. A downward adjustment applies where a
defendant is a minor participant, a minimal participant, or
something in between. USSG § 3B1.2 & comment.
(nn.4-5) (2014). Under the guideline in effect at the time of
sentencing, see USSG § 1B1.11(a), the
sentencing court was directed to make a downward adjustment
if the defendant played "a part in committing the
offense that makes him substantially less culpable than the
average participant." USSG § 3B1.2, comment. (n.3).
We review the district court's ruling for clear error.
United States v. Bradley, 643 F.3d 1121, 1128 (8th
district court rejected Waddell's bid for a mitigating
role adjustment. The court described the video of the robbery
as "chilling" and "very alarming." The
court found that "Waddell was a participant in the
planning, where there was a discussion of use of guns, use of
a knife, or whether just fists would be used or physical
force." Waddell, the court observed, "was referred
to as the enforcer and clearly knew what was going to
happen." The court found that Waddell was "very
much a participant in creating intimidation to facilitate the
robbery, " noting that he is around six feet tall and
230 pounds, and that he was "there to provide the
physical intimidation to search the person of [the victim]
for drugs and money that they intended to steal." For
these reasons, the court found that Waddell did not meet his
burden to show that he was substantially less culpable than
either Landt or Torres-Webber, and that a mitigating role
adjustment was not appropriate.
discern no clear error in these findings. Waddell was the
purported "buyer" of methamphetamine who completed
the ruse that was employed to lure the victim into a false
sense of security. His presence as an enforcer served to
intimidate the victim, and he personally seized the proceeds
of the robbery and carried them to his apartment. Although
Waddell did not concoct the criminal scheme, there was
evidence that he understood the scope and structure of the
criminal activity, participated in planning the criminal
activity, and committed acts that were important to the
robbery. Waddell points out that he did not exercise
decision-making authority, share in the robbery's
proceeds, or join Landt in physically assaulting the victim
in the car. But whether to apply the mitigating role
adjustment is "heavily dependent upon the facts of the
particular case, " USSG § 3B1.2, comment. (n.3(C)),
and the evidence here does not compel the conclusion that
Waddell was "substantially less culpable" than the
average participant. Several relevant factors supported the
district court's conclusion, and the decision to deny the
downward adjustment was not clearly erroneous.
second argument is that the district court impermissibly
relied on facts in the presentence report to which he lodged
an objection. When a defendant objects to facts in a
presentence report, a district court may not rely on those
facts to sentence the defendant unless the government first
proves the facts by a preponderance of the evidence.
United States v. Bowers, 743 F.3d 1182, 1184 (8th
Cir. 2014). To register a proper objection, however, the
defendant must make a clear and specific objection.
United States v. Davis, 583 F.3d 1081, 1095 (8th
Cir. 2009). When there is no proper objection, a district
court may accept facts in the report as true and rely on them
at sentencing. Id.
sentencing memorandum, Waddell addressed two statements in
the presentence report regarding his prior criminal
convictions as follows:
In regards to paragraph 29, the presentence report states
that the defendant allegedly displayed a steak knife in a
threatening manner to a prior girlfriend. The defendant
disputes this statement.
In regards to paragraph 31, the presentence report states
that the defendant held a large kitchen knife to the neck of
his father during an argument. The ...