77 F.3d 346 (10th Cir. 1996), 95-3085, United States v. Henning

Docket Nº:95-3085.
Citation:77 F.3d 346
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Christopher Alan HENNING, Defendant-Appellant.
Case Date:February 20, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 346

77 F.3d 346 (10th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

Christopher Alan HENNING, Defendant-Appellant.

No. 95-3085.

United States Court of Appeals, Tenth Circuit

February 20, 1996

Page 347

Charles D. Dedmon, Assistant Federal Public Defender, Topeka, Kansas (David J. Phillips, Federal Public Defender, and Marilyn M. Trubey, Branch Chief, Assistant Federal Public Defender, Topeka, Kansas, on the briefs), for Defendant-Appellant.

James H. Robinette, Assistant United States Attorney, Topeka, Kansas (Randall K. Rathbun, United States Attorney, and T.G. Luedke, Assistant United States Attorney, Topeka, Kansas, on the briefs), for Plaintiff-Appellee.

Before ANDERSON, McKAY, and JONES, [*] Circuit Judges.

McKAY, Circuit Judge.

Defendant Christopher Henning appeals the sentence he received after pleading guilty to being an accessory after the fact to premeditated murder. Mr. Henning argues that the district court should have granted him a three-point reduction in his base offense level pursuant to the United States Sentencing Guidelines § 3B1 because of his mitigating role in the offense. Mr. Henning also argues that the district court improperly used the guideline for first degree murder to determine his base offense level. He believes the district court should have used the guideline for second degree murder. For the reasons that follow, we affirm in part and remand in part.

The facts of the case are well summarized in Mr. Henning's brief:

During the late evening hours of March 10, 1994, or the early morning hours of March 11, 1994, the defendant, Christopher Henning, and three other people, Robert Grady, Michael Allingham and the victim, Michael Regehr, all met in a bar in Junction City, Kansas. Michael Regehr was celebrating his last night in the United States Army and was buying drinks for everyone all night, that he was pleased to be returning home to his family in Oregon.

At sometime after midnight, Robert Grady suggested that the group leave the bar. Grady and Regehr had been arguing sporadically during the course of the evening. Grady mentioned to both the defendant and Allingham that Regehr had lots of money on his person. The four entered Michael Allingham's car and departed.

After he pulled out, Allingham asked the others where they wished to go, and the victim stated he was tired and wished to return to his barracks. Allingham began to drive in that direction. Shortly thereafter, Robert Brady [sic] began dictating directions to Allingham from the passenger seat. Grady instructed Allingham to continue straight until they got to Highway 57, and then Grady instructed Allingham

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to proceed on 57 until they reached Highway 77.

Then from 77 to Old Route 77 until finally he told Allingham to turn right onto Estes Road, bringing the group into an isolated section of Ft. Riley, Kansas. Along this route, Grady and the victim argued verbally, and Grady began to loudly repeat the phrase "I'm going to get him. I'm going to get him," as if speaking to himself. Approximately two hundred meters along Estes road, Grady told Allingham to stop the car, and he told the victim to...

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