U.S. v. Carter
| Decision Date | 30 March 2009 |
| Docket Number | No. 05-50303.,No. 05-50321.,05-50303.,05-50321. |
| Citation | 560 F.3d 1107 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Andrew Lee CARTER, Jr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Andrew Lee Carter, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Wayne R. Young, Santa Monica, CA, for the defendant-appellant.
Elizabeth R. Yang and Dorothy C. Kim, Assistant United States Attorneys, Los Angeles, CA, for the plaintiff-appellee.
Appeals from the United States District Court for the Central District of California, William J. Rea and Dale S. Fischer, District Judges, Presiding.** D.C. Nos. CR 02-0904 WJR, CR 02-1215 WJR.
Before: A. WALLACE TASHIMA, CARLOS T. BEA, and SANDRA S. IKUTA, Circuit Judges.
Opinion by Judges TASHIMA and IKUTA;*** Dissent in Part by Judge TASHIMA.
Andrew Carter was indicted for two bank robberies—the first on August 1, 2002, in Commerce, California, and the second on August 12, 2002, in Pasadena, California. Carter was charged in both indictments with conspiracy to commit a bank robbery, in violation of 18 U.S.C. §§ 371 and 2113; armed bank robbery, in violation of 18 U.S.C. § 2113; and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). He was convicted by a jury on all counts and was sentenced to a 471-month term of imprisonment. Carter timely appealed.
We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We affirm both convictions, but we vacate the sentence and remand for resentencing. In determining Carter's sentence, the district court failed to make the requisite finding that a firearm was brandished. We therefore vacate the sentence and remand for the district court to make the requisite findings.
The day before the Commerce robbery, Derrick O'Neal contacted Carter and several others to ask if they wanted to rob a bank. O'Neal and Edward Warren had chosen the bank because it was close to the freeway and did not have security barriers inside. Carter agreed to rob the bank and agreed to meet the following morning. On the morning of the robbery, O'Neal, Warren, Eric Washington, Joseph Alexander, and Edward Hector met at the home of Warren's mother. O'Neal testified that Carter was a few hours late to the meeting because he was trying to get a gun and needed to drop his girlfriend off somewhere. They planned each person's role in the robbery and left for the bank. Carter's role was to "grab the money" from the teller because "he was quick."
Alexander, Carter, Washington, and Hector entered the bank. O'Neal and Warren remained outside as lookouts. Washington stayed in the lobby area, Alexander walked through the bank to watch the back doors, and Carter and Hector went to the teller counter. When Janet Guizar, a financial services consultant at the bank, saw the men enter, carrying empty bags and spreading out through the bank, she pressed an alarm. Brenda Lopez, the customer service manager, asked Carter and Hector if she could help them, and they said they wanted to open new accounts. Lopez seated them at a desk, and Guizar stated that she would be with them momentarily.
Guizar then went behind the teller counter, told the branch manager to call 911, and picked up a phone to call their corporate security office. Hector and Carter rushed over and told her to hang up the phone. Hector jumped over the teller counter, pointed his gun at two tellers, and told them to put money in his bag. The men left and split up the money, which totaled approximately $3,500.
O'Neal contacted Carter on August 11, 2002, and told him that he and Warren had found another bank to rob and that Carter should bring a gun. Carter responded that he would try to find a gun. On the morning of the robbery, O'Neal, Warren, Carter, Alexander, and Hector met at Warren's home. They were joined by Larry Washington, Jerry Hughes, Koran Allen, and Cedrick Askew, and they discussed each person's role in the robbery.
When they entered the bank, Hughes displayed his gun, jumped on the teller counter, and demanded the keys. A bank employee gave Hughes cash from several teller drawers. After leaving the bank, the men switched vehicles and stopped to split up the money, which totaled approximately $21,000.
On January 9, 2003, an indictment was filed against Washington and Carter, charging them with conspiracy to commit bank robbery, armed bank robbery, and brandishing a firearm during a crime of violence. O'Neal and Alexander entered into plea agreements and testified at both trials. O'Neal received a sentence of 105 months, and Alexander was sentenced to 125 months.
Carter moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, but the district court denied the motion. Carter was convicted on all three counts of the indictment.
Carter, O'Neal, Washington, Hughes, Allen, Askew, and Alexander were indicted on three counts — conspiracy to commit bank robbery, armed bank robbery, and brandishing a firearm during a crime of violence. A nine-day jury trial commenced on October 14, 2003. On October 15, 2003, Hughes and Askew entered guilty pleas, and Washington pled guilty the following day. Allen, Carter, and Hector proceeded to trial.
Before opening arguments were made, Carter's attorney, Scott Furstman, informed the court during a sidebar that there was a conflict between himself and Carter regarding trial strategy. Furstman explained the conflict as follows:
I have raised to the court that there may be a conflict as developed between Mr. Carter and myself with regard to the presentation of certain evidence and the strategy to be relied upon. Mr. Carter has always been prepared to accept responsibility for count one and count two—count two not being an armed bank robbery. I have explained to him the elements and the fact that he simply can't plead guilty to a count that is not charged. That being the case, however, Mr. Carter, for example, in my opening statement wanted me to basically admit all elements that would make out the government's case as to count one and count two. I don't believe that is in Mr. Carter's best interest at this juncture. I told him that I would reserve opening statement to see how the government's evidence plays out; and if he believes it is in his best evidence [sic] to present to the jury an impression that he is guilty of the robberies, so be it. I don't think it's in his best interest.
I assume there are other issues that do bear on the foreseeability aspect with regard to the 924(c) and Mr. Carter's desire and it's his right to testify, potentially. Given the prior conviction that Mr. Carter has and the fact that he had the prior bank robbery that didn't come in, I do not believe that would be in his best interest either. As I say, that's his constitutional right. I can't prevent him from exercising it. But there are some other strategies with regard to potential defense evidence that Mr. Carter and I have discussed that he may wish me to put forth. Again, I do not believe it is in his interest.
... Your Honor, we have been through another trial with Mr. Carter. I have appeared before Your Honor for a long time on many occasions. I don't think I've ever come before Your Honor and said that because of this potential conflict and a breakdown because of this difference in terms of trial strategies and the stakes before Mr. Carter are huge. Huge. 25 years alone on this one 924(c), so I'm concerned.
Tr. of 10/16/03 Hr'g at 7-9. Carter told the court that Furstman "basically said everything I needed to say for the record." Furstman "formally" moved to withdraw, and the court then denied the motion with no explanation or inquiry.
Carter moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, based on the insufficiency of the evidence with respect to the § 924(c) charge. Furstman argued that Carter did not bring a weapon to the meeting, that there were only two weapons used during the robbery, and that neither was used "in direct proximity" to Carter. He further argued that no weapon was recovered from Carter and, in fact, no weapon was ever recovered. The court denied the motion. Carter was convicted on all three counts.
Carter was sentenced on April 11, 2005 on both robberies. Defense counsel, Donald Randolph,1 raised several issues at the sentencing hearing and in memoranda filed prior to the hearing. First, he asked the court to exercise its discretion under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to impose the statutory minimum sentence of 360 months. He cited numerous personal hardships Carter had endured throughout his life, such as the lack of a relationship with his father, his mother's inability to provide "basic food, utilities, electricity," Carter's attempts as a youth to provide for his family, and his placement in a group home.
Randolph further disputed the number of criminal history points Carter was assessed. Carter received one point for a 2000 charge of possession of narcotics that resulted in diversion. In 2002, Carter was stopped for driving without lights, and he lied about his identity to the officer, resulting in one point for a charge of giving false information to a peace officer, for which he received summary probation. Carter then received two additional criminal history points because the robberies were committed while his diversion was revoked on the narcotics charge and while he was on probation on the false information charge, resulting in four points, which established a criminal history category of III.
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