U.S. v. Anderson

• Decision Date: 08 February 1990
• Docket Number: No. 89-10059,89-10059
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Earl Thomas ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 641

895 F.2d 641

UNITED STATES of America, Plaintiff-Appellee, v. Earl Thomas ANDERSON, Defendant-Appellant.

No. 89-10059.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 15, 1989.

Decided Feb. 8, 1990.

Robert M. Holley, Asst. Federal Defender, Sacramento, Cal., for defendant-appellant.

Daniel S. Linhardt, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before WIGGINS and KOZINSKI, Circuit Judges, and STOTLER, ^* District Judge.

STOTLER, District Judge:

Appellant Earl Thomas Anderson appeals his sentence, pursuant to the Sentencing Guidelines, imposed after a conditional plea of guilty to violation of Title 18 U.S.C. Section 2113(a) and (d), armed bank robbery. The District Court concluded that appellant was properly classified as an organizer, leader, manager or supervisor pursuant to Section 3B1.1(c) of the Guidelines despite his co-defendant's unawareness of the criminal enterprise until after commission of the unlawful act. We affirm the District Court's decision that a two-level increase pursuant to Section 3B1.1(c) is appropriate in this case.

I. FACTS AND PROCEDURAL HISTORY

On December 11, 1987, Anderson and an individual named Alan Richards were observed by law enforcement officers "casing" a Security Pacific Bank in Redding, California. Six days later Anderson robbed, at gunpoint, that same bank.

Subsequent to the robbery, police found appellant's car on Niles Lane. The officers gave chase when appellant and his co-defendant Gary Lee Hambley drove away. After their arrest, Hambley told officers he was unaware Anderson was going to commit a robbery since Anderson had picked him up that morning on the ruse of going to work. Hambley maintained that after they parked the car near the bank, Anderson told him to open the trunk and wait; thereafter, Anderson returned, jumped into the truck and instructed Hambley to drive to the Niles Street location.

Upon arriving there, Anderson told Hambley he had just robbed a bank.

On December 18, 1987, the Grand Jury for the Eastern District of California returned a two-count Indictment: Count One against appellant and Hambley for violation of 18 U.S.C. Section 2113(a) and (d), armed robbery, and Count Two against Hambley for violation of 18 U.S.C. Section 3, accessory after the fact.

On February 4, 1988, appellant entered a conditional plea of guilty to Count One. ¹ Hambley was tried as the driver of the get-away vehicle, but the jury failed to reach a verdict. Upon the filing of a Superseding Information, Hambley pled guilty to misprision of a felony in violation of 18 U.S.C. Section 4.

A Pre-Sentence Report calculated appellant's total offense level at twenty-two (22), ² including two (2) points for his leadership role in the offense. The report concluded that,

[s]ince there is strong evidence the defendant was in the process of recruiting a getaway driver prior to the robbery and two people are known to have been recruited, coupled with the fact that the defendant's and co-defendant's statement indicate the co-defendant was not aware of the robbery until after it occurred, it would appear the defendant had an aggravating role in the offense. Even if one believes that co-defendant was tricked into being the getaway driver, the mere act of trickery to cause the co-defendant to become a participant in the crime would appear to strongly forward the proposition the defendant played a leadership role. Pursuant to Section 3B1.1(c), two levels are added.

Pursuant to local rule, defendant's counsel filed a "Motion to Correct Pre-Sentence Report and Statement of Formal Objections Thereto," specifically asking the trial court to eliminate the two-level upward adjustment imposed pursuant to Section 3B1.1 on the ground that Anderson was the sole participant.

The Government's response assumed for purposes of appellant's motion that Hambley had no knowledge he was accompanying appellant for the purpose of committing a bank robbery.

Appellant's motion to correct the Pre-Sentence Report was denied after hearing on April 27, 1988. The trial court's decision assumed that the co-defendant was not criminally responsible for the crime of robbery. No evidence was taken and sentencing was based solely on the undisputed facts of the Pre-Sentence Report. Appellant was sentenced to serve forty-six months incarceration under offense level twenty-two, a period of supervised release for three years with an order of restitution among other conditions, and the statutory assessment.

This is the second appeal in this action. On the first appeal, Ninth Circuit No. 88-367, the matter was reversed and remanded on the Court's own motion in light of Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988). On January 18, 1989, before appellant's resentencing, the United States Supreme Court upheld the constitutionality of the Sentencing Guidelines. Mistretta v. United States, 488 U.S. 647, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Accordingly, on January 27, 1989, the District Court resentenced appellant to the same sentence (except that it struck the $50.00 penalty assessment based on United States v. Munoz-Flores, 863 F.2d 654 (9th Cir.1988), cert. granted, --- U.S. ----, 110 S.Ct. 48, 107 L.Ed.2d 17 (1989)).

II. STANDARD OF REVIEW

Appellant seeks a ruling that his sentence was imposed as a result of an incorrect application of the Sentencing Guidelines. See 18 U.S.C. Sec. 3742(a)(2). This Court "shall give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. Sec. 3742(e).

The "due deference" language added to Section 3742 on November 18, 1988 does not create a new standard of review. It does require the Court to determine what degree of factual inquiry is involved, and to apply the corresponding standard. United States v. Mejia-Orosco, 868 F.2d 807, 809 (5th Cir.1989). If the inquiry is a purely factual one, the "clearly erroneous" standard applies. United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989); United States v. Wills, 881 F.2d 823, 825 (9th Cir.1989). As the inquiry becomes more of a purely legal question, the "de novo " standard applies. See Mejia-Orosco at 809; see also United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir.1989) (reviewing de novo an application of the Sentencing Guidelines). Accordingly, this Court reviews the district court's application of the Sentencing Guidelines de novo in this case, because no factual inquiry is involved.

III. DISCUSSION

The District Court determined that pursuant to Section 3B1.1(c) appellant's "role in the offense" required a two-level increase in his total offense level.

Section 3B1.1 provides:

Based on the defendant's role in the offense, increase the offense level as follows:

(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager ... and the criminal activity involved five or more participants, or was otherwise extensive, increase by 3 levels.

(c) If the defendant was an organizer, leader, manager or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.

Appellant contends that his role in the bank robbery was inaccurately classified as that of a leader because Hambley was not aware of his participation in the offense until after its commission.

Specifically, appellant relies upon the Introductory Commentary to Section 3B1.1 which reads:

This Part provides adjustments to the offense level based upon the role the defendant played in committing the offense. When an offense is committed by more than one participant, Section 3B1.1 or Section 3B1.2 (or neither) may apply.

Although absent from subsection (c), the term "participant" appears in Section 3B1.1 subsections (a) and (b) and in the Introductory Commentary. Appellant argues that the absence of the term "participant" from subsection (c) was simply an oversight, and that all of the subdivisions of Section 3B1.1 require the presence of one or more participants in the criminal activity before the two-level upward adjustment can apply.

Appellant points to the definition of "participant" in paragraph 1 of the Commentary following Section 3B1.1:

A "participant" is a person who is criminally responsible for the commission of the offense but need not have been convicted.

Thus, Commentary both before and after the guideline refers to a "participant" but subsection (c) omits the term. Hambley was not criminally responsible for the robbery because he neither had the knowledge nor the intent to commit an illegal act. Hambley was simply tricked into driving the get-away vehicle. Therefore, Hambley was not a "participant" under the guideline definition.

The Government urges the Court to adopt a literal construction of subsection (c) without the requirement of "participants" as defined by the Commentary. It argues The construction propounded by the Government is in accordance with the basic principles of statutory construction as set forth in Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300-01, 78 L.Ed.2d 17 (1983). The Court held that " 'where Congress includes a particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion and exclusion.' " Id. at 23, 104 S.Ct. at 300 (quoting U.S. v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)); see also Arizona Elec. Power v. United States, 816 F.2d 1366, 1377 (9th Cir.1987). The reasoning in Russello is persuasive in this case, where the Court is analyzing subparagraphs within the same section.

that the term "participant" was intentionally omitted from subsection (c), which was designed as a catch-all provision for those...