881 F.2d 823 (9th Cir. 1989), 88-3291, United States v. Wills

Docket Nº:88-3291.
Citation:881 F.2d 823
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robin F. WILLS, Defendant-Appellant.
Case Date:August 09, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 823

881 F.2d 823 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robin F. WILLS, Defendant-Appellant.

No. 88-3291.

United States Court of Appeals, Ninth Circuit

August 9, 1989

Submitted June 29, 1989[*]

Page 824

John C. Lynn, Lynn, Scott, Hackney & Jackson, Boise, Idaho, for defendant-appellant.

George W. Breitsameter, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before FARRIS, NOONAN and LEAVY, Circuit Judges.

OVERVIEW

LEAVY, Circuit Judge:

Robin Fredrick Wills appeals his sentence following his guilty plea to one count of credit card fraud under 18 U.S.C. Sec. 1029(a)(2) (Supp. II 1984). Wills contends that under the sentencing guidelines the trial judge had no discretion but to order that Wills serve his sentence consecutively to an unrelated state sentence, and that failure to advise him of this fact at his plea hearing violated Rule 11 of the Federal Rules of Criminal Procedure. Wills also contends that the trial judge incorrectly calculated his sentence under the guidelines. We affirm.

FACTS AND PROCEEDINGS

At the time of this offense, Wills was incarcerated at the Idaho State Correctional Institution at Boise for an unrelated state offense. Wills obtained various credit card numbers from a credit company by posing as a corporation. Through an outside co-defendant, Kimberly Ann Stark Story ("Stark"), he contacted a private investigator. Stark convinced the investigator to withdraw cash from the banks corresponding to the credit card numbers. The investigator agreed to perform the transactions after being told that Stark was working for a famous billionaire who needed to make payments to a certain woman without the information leaking out to his wife, and that the best way to do it was for the investigator to withdraw the cash, put it in his account, then make cash payments as required.

The investigator withdrew $12,000 on June 3-6, 1988, $17,500 on June 7-8, and $22,500 on June 16-22. He then transferred cash to Stark (after deducting a fee). However, the investigator grew suspicious after being asked to perform the third withdrawal and contacted the FBI. Stark was apprehended after the investigator delivered her the cash. She implicated Wills as the mastermind of the scheme. The monies from this third transaction were recovered.

A three-count indictment against Wills followed, each count corresponding to one of the transactions. Wills pleaded guilty to Count One of the indictment, and the two remaining counts were dropped pursuant to a plea bargaining agreement.

At the time of Wills' plea hearing, the Ninth Circuit had held the recently-enacted sentencing guidelines unconstitutional. Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988), vacated and remanded, --- U.S. ----, 109 S.Ct. 859, 102 L.Ed.2d 984 (1989). At the plea hearing, the trial judge informed Wills of the maximum penalty for his offense outside the guidelines and informed him of the relevant factors that would be considered under the guidelines. The judge did not inform Wills that a sentence under the guidelines would run consecutively to the sentence Wills presently served.

At the sentencing hearing, the judge sentenced Wills to a consecutive sentence of 41 months under the guidelines and, in case the Supreme Court held the guidelines unconstitutional, to ten years under 18 U.S.C.

Page 825

Sec. 1029. Wills' sentence under the guidelines was partly calculated by considering Wills' offenses as exceeding $50,000.

STANDARD OF REVIEW

Since Wills contends that his sentence is invalid as a matter of law, review is de novo. United States v.Jaramillo-Suarez, 857 F.2d 1368, 1369 (9th Cir.1988). The district court's findings of fact underlying the sentence determination are reviewed for clear error. 18 U.S.C. Sec. 3742(d) (Supp. II 1984).

DISCUSSION

I. VALIDITY OF THE GUILTY PLEA

The Supreme...

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