US v. Jordan

• Decision Date: 05 July 2001
• Docket Number: PLAINTIFF-APPELLEE,No. 97-10255,DEFENDANT-APPELLANT,97-10255
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. RONALD JORDAN,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 922

256 F.3d 922 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. RONALD JORDAN, DEFENDANT-APPELLANT.

No. 97-10255

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 3, 2000

Filed July 5, 2001

Patience Milrod, Fresno, California, for the defendant-appellant.

Dawrence W. Rice, Jr., Office of the U.S. Attorney, Sacramento, California, William L. Shipley, Assistant United States Attorney, Fresno, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; Robert E. Coyle, District Judge, Presiding. D.C. No. CR-96-05114-REC.

Before: Betty B. Fletcher, Diarmuid F. O'Scannlain, and Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould; Concurrence by Judge O'Scannlain

Gould, Circuit Judge

Appellant Ronald Jordan ("Jordan") pled guilty to one count of bank robbery in violation of 18 U.S.C. sec. 2114(a). The district court increased Jordan's offense level by five for possession of a firearm during the robbery and by an additional four for abducting a witness during his escape. On appeal, Jordan contends that the disproportionate impact of these sentencing enhancements required the district court, in determining facts relating to such enhancements, to apply a standard of proof of "clear and convincing evidence," rather than a "preponderance of evidence" standard. We agree, and vacate the sentence and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

A. Bank Robbery

On April 14, 1996, at approximately 8:10 a.m., Patricia Settle ("Settle"), the Vice President of the Home Savings of America branch in Bakersfield, California, arrived at work. While Settle was conducting a "walk around" of the bank, a royal blue van approached behind her. A man, later identified as Jordan, dressed in a security uniform got out of the van and told Settle, "Look down. Don't look up!" Settle did not observe a firearm, but noticed that Jordan carried a walkie talkie radio.

Jordan and Settle entered the bank. Jordan then learned from Settle that she needed another employee to open the vault and safe. Jordan used his walkie talkie to ask an accomplice to come inside the bank. Once other employees arrived, Jordan ordered them to sit at desks in the middle of the bank. Jordan instructed Settle and an unidentified employee to empty the contents of the safe and the ATM machine into two plastic bags. Next, Jordan told his accomplice to put everyone inside the vault. The employees were escorted to the vault, placed inside, and the door was closed but not locked. After a few seconds, Settle used the telephone inside the vault to call the police. The bank suffered a loss of approximately $50,969.

Most individuals present at the robbery gave statements to police. Settle and Harris, a bank employee, said that they did not observe a firearm in Jordan's possession. Employees Tokash, Gough, and Wiggens did not mention observing a gun. Employee Carpenter said that Jordan had his right hand concealed in his jacket and that she "believed a weapon may have been concealed." However, Carpenter also said that she "avoided looking at the suspects" and did not believe she could identify either one if seen again. Graham, a high school student in training, said that she "could not remember specifically," but thought that Jordan had a gun or a knife strapped to his right hip. Sarkiassian, a customer, said that she saw the butt of a gun protruding from Jordan's right hand.

B. Alleged Abduction

Around 10:40 a.m. that morning, Jordan and an unidentified woman contacted Carolyn Howard ("Howard") as she was leaving her apartment. According to Howard's version of events stated in police reports, Jordan forced himself into her apartment. Once inside, Jordan spoke on his cell phone, allegedly stating, "It just went down this morning, they jacked the Lexus, we're trying to get away, we're surrounded by police." Howard told the police that Jordan was armed with a handgun. About twenty minutes later, Jordan told Howard to drive him and the unidentified woman to the California Inn Motel.

There, Jordan, the woman, and Howard entered a motel room where, according to Howard, she observed a large quantity of money, several guns, and two additional men and two additional women.

Howard claims that she was told to drive one of the three women past Howard's apartment. According to Howard, when they drove by they saw police surrounding a Lexus and a van. Howard and the woman then returned to the California Inn Motel and reentered the room. After this, the group of suspects allegedly put the guns into the trunk of Howard's car, and she then drove them to the Econo Lodge. Howard was given fifty dollars and told to get a room in her name. Howard registered and they entered the room. She then drove two women to the Quality Inn where one went inside a motel room, removed items, and placed them in the trunk of Howard's vehicle. Howard stayed at the Econo Lodge for about 45 minutes, allegedly making several attempts to leave. Around noon, Jordan requested and received Howard's telephone and pager numbers. Jordan then allowed her to leave. After Howard returned home, she went to the mall.

When Howard returned to her apartment around 6:30 p.m., she spoke to the maintenance man who informed her of a $100,000 reward for information about the bank robbery. Howard contends that she had no idea the individuals who allegedly abducted her were responsible for a bank robbery until the maintenance man told her what he had heard on the news. Howard then contacted authorities.

Howard was later administered a polygraph test in three parts. First, she answered questions on whether she knew the individuals who robbed the bank. Her score indicated clear deception. Second, she was asked whether her boyfriend knew the individuals who robbed the bank. Again, her score indicated clear deception. The third and final part related to whether Howard knew of the bank robbery in advance. Her score was inconclusive, but leaned towards deception.

C. Sentencing

Jordan was indicted for armed bank robbery and for carrying a firearm during a crime of violence, in violation of 18 U.S.C. sec. 2113(a), (d), and 924(c)(1). Pursuant to a written plea agreement, Jordan pled guilty to a violation of 18 U.S.C. sec. 2113(a), with remaining counts dismissed.

The plea agreement provided that the government would recommend a three-level sentencing reduction for acceptance of responsibility, dismiss the superseding indictment at sentencing, and recommend the low end of the applicable sentencing range. The agreement also noted that the parties disputed whether Jordan possessed a firearm during the bank robbery.

Jordan's case was referred to the probation office for a pre-sentence report ("PSR"). The probation officer calculated a total offense level of 32 and recommended a sentence of 236 months -- the middle of the applicable range.¹ Jordan submitted a sentencing memorandum and objections to the PSR.

The court held a sentencing hearing on April 14, 1996. Under then-extant circuit precedent, see, e.g., United States v. Restrepo, 946 F.2d 654, 659-60 (9th Cir. 1991) (en banc), the government told the court that the preponderance of evidence standard of proof applied at sentencing. Jordan objected to the PSR's factual findings contending that the evidence was insufficient to find that he was armed during the robbery or that he abducted Howard to facilitate escape. Jordan did not, however, challenge the applicable standard of proof.

The district court overruled Jordan's objections and followed the PSR:

The -- on the kidnapping, it's quite obvious, that this lady was not anxious to recognize that she didn't know Mr. Jordan and there is some concerns for her safety. And that's the area that the [polygraph ] report seems to indicate she was having problems. I'm satisfied that there was a kidnapping, which was not much different than what was happening at the bank.

I'm also satisfied that Mr. Jordan . . . was armed, both from the testimony at the time of the robbery and the circumstances afterwards.

The district court sentenced Jordan to 236 months imprisonment, 36 months supervised release, and a $100 special assessment fee.

After the court sentenced Jordan but before his appeal, we held that when a sentencing factor has an extremely disproportionate effect on the sentence relative to the offense of conviction, due process requires that the government prove the facts underlying the enhancement by clear and convincing evidence. United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999), cert. den., McKendrick v. United States, 528 U.S. 1163(2000).

On appeal, Jordan challenges his sentence and contends that the disproportionate impact of the sentencing enhancements required proof by clear and convincing evidence, and not merely a preponderance of the evidence. We have jurisdiction pursuant to 28 U.S.C. sec. 1291.

DISCUSSION

I.

We review de novo the district court's interpretation of the sentencing guidelines. United States v. Dixon , 201 F.3d 1223, 1233, (9th Cir. 2000). We review for clear error the factual findings underlying the sentencing decision. United States v. Barnes, 125 F.3d 1287, 1290 (9th Cir. 1997). Because Jordan failed to object to the district court's application of the pre-ponderance standard, we review for plain error. Fed. R. Crim. P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."); see also United States v. Olano, 507 U.S. 725, 730-32 (1993).²

Before an appellate court can correct an error not raised at trial, "there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity,...