United States v. Archuleta

• Decision Date: 28 July 2017
• Docket Number: No. 16-1297,16-1297
• Citation: 865 F.3d 1280
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gabriel Jesse ARCHULETA, a/k/a Vinnie, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

865 F.3d 1280

UNITED STATES of America, Plaintiff-Appellee,

v.Gabriel Jesse ARCHULETA, a/k/a Vinnie, Defendant-Appellant.

No. 16-1297

United States Court of Appeals, Tenth Circuit.

FILED July 28, 2017

Josh R. Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, and Ryan K. Melcher, Assistant Federal Public Defender, on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

J. Bishop Grewell, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with him on the brief), Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

Before BRISCOE, SEYMOUR, and McHUGH, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Gabriel Archuleta pleaded guilty to three criminal counts: specifically, violations of 18 U.S.C. §§ 371, 924(c)(1)(A)(ii), and 2113(a) and (d). All of these charges arose out of Archuleta's participation in an armed bank robbery and his subsequent agreement to engage in additional armed bank robberies. Archuleta was sentenced to concurrent terms of 120 months' imprisonment on the § 371 and § 2113 convictions, plus a consecutive 84-month sentence on the § 924(c) conviction, for a total term of imprisonment of 204 months. Archuleta now appeals his sentence, arguing that the district court erred in (1) imposing a four-level enhancement pursuant to U.S.S.G. § 2B3.1(b)(4)(A) for "abduction," (2) assigning him a criminal history point for a Colorado state conviction for marijuana possession, and (3) imposing a sentence above the statutory maximum for the § 371 conviction. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reject Archuleta's first argument, but conclude that there is merit to his second and third arguments. Consequently, we remand to the district court with directions to vacate Archuleta's sentence and resentence him.

I

On the afternoon of June 17, 2014, two armed men wearing masks and gloves entered the lobby of the Wells Fargo Bank in Wheat Ridge, Colorado, and ordered the employees and customers to get down on the floor. The men then ordered the tellers to come out from the teller area. One of the men also demanded that the bank manager come forward and give them access to the bank's vault. The manager complied and said that she could give the robber access to the vault. The robber said he was aware that it would take two people to open the vault, so he directed the manager and one teller, at gunpoint, to take him to the vault area of the bank. The manager and teller complied and, together with the robber, they left the lobby area and entered the bank's vault. There, the robber, again at gunpoint, directed the manager to open the safe and place the money from the safe into a black plastic trash bag. The manager complied, but the robber expressed frustration that she was not moving quick enough and cycled the slide on his handgun, pointed it directly at the manager, and ordered her to move faster.

While the one robber was in the vault, the other robber maintained control over the remaining employees and customers in the bank's lobby by ordering them at gunpoint to lie on the floor. When new customers entered the bank, the robber also ordered them to get down on the floor. This robber walked continuously around the area, maintaining control over the employees and customers, while telling the robber in the vault to hurry up.

After the manager had placed most of the money from the vault into the trash bag, the robber in the vault took the trash bag with the money and left the vault area. The two robbers then fled the bank and got into a Honda Element that was waiting in the bank's parking lot. The Honda Element, which had been stolen a few days earlier from a home in south Denver, was driven by a third individual. A witness observed the Honda Element leave the bank parking lot and head southbound. Not long after the robbers fled the bank, the Honda Element was found engulfed in flames in a wooded area less than five miles from the bank.

The Federal Bureau of Investigation (FBI) found no useful forensic evidence at the scene of the robbery. But the FBI did discover that a woman who worked as a teller at another Wells Fargo branch in the Denver area had conspired with the robbers. Specifically, the woman provided the robbers with information about Wells Fargo's general procedures for gaining access to a vault, and also with information about how to determine which Wells Fargo branch would have large amounts of cash on hand at a particular time. In exchange for this information, the robbers provided her with a portion of the robbery proceeds.

The two robbers were identified as Gabriel Archuleta and Thomas McQuown. The FBI determined that shortly after the robbery, Archuleta spent large sums of money, often $100 bills, on a variety of items including clothing, jewelry and automobiles. The FBI also monitored and recorded phone calls between Archuleta and the female teller who had conspired with him.

In February of 2015, McQuown told his female coconspirator that he was in need of cash and was considering committing additional robberies. At the suggestion of the FBI, the female coconspirator told McQuown to hold off because she might have some ideas for him. The female coconspirator then, at the suggestion of the FBI, arranged for McQuown and Archuleta to meet with an undercover FBI agent posing as an employee of an armored car company. The purported purpose of the meeting was to discuss a possible robbery.

The undercover FBI agent met with Archuleta and discussed setting up a robbery. The agent advised Archuleta that he would know when large deposits would be made at a given bank and could contact Archuleta so that he and McQuown could rob the bank immediately following a large deposit. Two days later, the undercover FBI agent met with Archuleta again and provided him with a cell phone to use for further communications.

The undercover agent subsequently met with both Archuleta and McQuown to further discuss the planned robbery. The three men discussed a general plan in which the undercover agent, acting in the course of his alleged employment as an armored car driver, would drop money at a bank and then Archuleta and McQuown would shortly thereafter enter the bank at gunpoint and steal the money before bank personnel had the opportunity to place it in the vault.

The undercover agent met with Archuleta and McQuown two more times. The last of these meetings, which was audio and video recorded by the undercover agent, was for the purpose of casing banks for potential robbery. During this meeting, the undercover agent drove Archuleta and McQuown to two suburban Denver banks where they surveilled the exteriors of these banks. The undercover agent also provided Archuleta and McQuown with sketches of the interiors of both banks. Archuleta discussed possible escape routes from both banks, and Archuleta and McQuown devised a code that the undercover agent could text them to identify which of the two banks would have the most money. McQuown also provided the undercover agent with a separate code to use if the money deposited at the target banks was not sufficient to justify the robbery.

Archuleta was arrested on March 18, 2015. Archuleta waived his rights and agreed to be interviewed. He admitted to committing the June 17, 2014, bank robbery and conspiring to commit an additional bank robbery in March 2015. With respect to his role in the June 17, 2014, bank robbery, Archuleta admitted that he was one of the two men who entered the bank, and that he was the one who ordered and accompanied the bank manager and a teller into the vault. He also identified the driver of the getaway vehicle as Thomas Lucero.

II

On March 23, 2015, a federal grand jury indicted Archuleta, McQuown and Lucero on four criminal counts: (1) conspiracy to commit bank robbery in 2014, in violation of 18 U.S.C. § 371 ; (2) armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d) ; (3) brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) ; and (4) conspiracy to commit bank robbery in 2015, in violation of 18 U.S.C. § 371.

On March 13, 2016, Archuleta entered a plea of guilty, pursuant to a written plea agreement, to Counts 2, 3, and 4 of the indictment. In exchange for Archuleta's plea, the government agreed to dismiss Count 1 of the indictment and to recommend a sentence within the advisory sentencing guideline range.

A presentence investigation report (PSR) was prepared and submitted to the district court and the parties on May 26, 2016. In calculating Archuleta's total offense level, the PSR applied a base offense level of 20 for the armed bank robbery, and then applied three enhancements, including a four-level enhancement pursuant to U.S.S.G. § 2B3.1(b)(4)(A), "because a person was abducted to facilitate the commission of the offense." ROA, Vol. 2 at 29. In support, the PSR noted that "[t]he defendants directed the manager and the teller at gunpoint to move to the vault area of the bank." Id. Ultimately, the PSR recommended an adjusted offense level of 31 for the armed bank robbery. After grouping the offenses and applying two reductions for acceptance of responsibility, the PSR arrived at a total offense level of 28. With respect to Archuleta's criminal history, the PSR noted that Archuleta had two Colorado state juvenile criminal convictions, one in March 2013 for "1st Degree Trespass-Auto-With Intent to Commit a Crime," and another in July 2013 for "Possession of Marihuana Under 1 Ounce" in Adams County (Colorado) Combined Court. Id. at 31. The PSR assigned one criminal history point for each of those convictions, resulting in a "subtotal criminal history score of two." Id. at 32. The PSR also added two criminal points because Archuleta "committed the instant offense while under a criminal justice sentence" in connection with the first degree trespass conviction. Id. That...