U.S. v. Franklin
| Decision Date | 17 March 2003 |
| Docket Number | No. 01-30226.,No. 01-30291.,01-30226.,01-30291. |
| Citation | 321 F.3d 1231 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Donald Douglas FRANKLIN, Jr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. William Edward Piers, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Allison Mendel, Mendel & Associates, Anchorage, AK, for defendant-appellant Franklin.
Fay Arfa, A Law Corporation, Los Angeles, CA, for defendant-appellant Piers.
Donald Marks, Los Angeles, CA, for defendant-appellant Piers.
Mark A. Rosenbaum, Assistant United States Attorney, District of Alaska, for the plaintiff-appellee (No. 01-30226).
Steven L. Lane, U.S. Department of Justice, Washington, D.C., for the plaintiff-appellee (No. 01-30291).
Monica S. Abrams, U.S. Department of Justice, Washington, D.C., for the plaintiff-appellee (No. 01-30291).
Appeal from the United States District Court for the District of Alaska; H. Russel. Holland, Chief Judge, Presiding. D.C. Nos. CR-00-00104-HRH-03, CR-00-00104-HRH-01.
Before: WALLACE, TROTT and, TASHIMA, Circuit Judges.
Donald Douglas Franklin, Jr., ("Franklin") and William Edward Piers ("Piers") planned the armed robbery of a credit union. The robbery itself was carried out by Piers and Raymond Hubbard ("Hubbard"). Franklin appeals the sentence entered on his guilty pleas to charges stemming from the robbery, and Piers appeals his six convictions. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.
Piers and Franklin decided to rob the credit union where Franklin worked. Franklin provided Piers with security information, details of credit union operations and procedures, and the location of the vault. Franklin and Piers developed a written plan for the robbery and their escape. At his plea hearing, Franklin acknowledged that they planned to use handguns "in a threatening manner" during the robbery. On October 15, 1999, Piers and Franklin approached the credit union with the intent to execute their plan, but got into an argument and abandoned their attempt.
On June 27, 2000, Piers and Hubbard succeeded in committing the robbery. Piers and Hubbard drove to the credit union in a stolen van and waited for employees to arrive. When a credit union employee entered the building, Piers pushed inside the door while Hubbard waited outside in the van. Piers triggered an alarm when he removed money from the teller drawers. As police proceeded to the credit union, Piers exited the building, got into the van, and Hubbard sped away. Officers attempted to stop Hubbard, but he made a U-turn and kept driving. In their attempt to evade police, Piers fired shots from the getaway van at the officers. Hubbard drove the van behind a strip mall and then into a trailer park where they changed vehicles. Piers drove the second vehicle until it became stuck in a chain link fence and they were apprehended by police.
Franklin pled guilty to conspiracy to commit armed robbery (Count I), conspiracy to use, carry or possess a firearm in relation to a crime of violence (Count III), and attempted armed robbery (Count VII). The district court sentenced Franklin to 60 months on Count I and 150 months on each of Counts III and VII, to be served concurrently, followed by three years of supervised release.
After a five-day jury trial, at which Hubbard testified for the government, Piers was convicted of six crimes: conspiracy to commit armed robbery (Count I); armed robbery (Count II); conspiracy to use, carry or possess a firearm in relation to a crime of violence (Count III); using, carrying or possessing a semiautomatic assault weapon (Count IV); using, carrying or possessing an automatic machine gun (Count V); and, possession of a firearm with the serial number removed or altered (Count VI). The district court sentenced Piers to concurrent 60-month terms on Counts I and VI; concurrent 108-month terms on Counts II and III; and a 120-month term on Count IV and 360 months on Count V, to be served concurrent with each other but consecutive to the terms imposed on Counts I, II, III, and VI.
Although Franklin was not present at the June 27th robbery, the district court applied a seven-level enhancement for discharge of a firearm on that occasion pursuant to U.S.S.G. § 2B3.1(b)(2)(A), and a two-level enhancement pursuant to U.S.S.G. § 3C1.2 for reckless endangerment in attempting to evade police after the robbery. Franklin challenges these enhancements.
We review de novo the district court's application of the sentencing guidelines. United States v. Young, 33 F.3d 31, 32 (9th Cir.1994). The district court's factual findings in the sentencing phase are reviewed for clear error, including its determination of whether a defendant's conduct constituted reckless endangerment, id., and whether a co-conspirator's actions were reasonably foreseeable, United States v. Lavender, 224 F.3d 939, 941-42 (9th Cir.2000).
"`[I]n the case of jointly undertaken criminal activity,' the sentencing court should take into account `all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity that occurred during the commission of the offense of conviction.'" United States v. Zelaya, 114 F.3d 869, 871 (9th Cir.1997) (quoting U.S.S.G. § 1B1.3(a)(1)(B)). The district court found it was "clear" that Franklin "knew and planned that guns would be brandished" and it was "entirely foreseeable that guns would be fired" when attempting to escape after the robbery. Based on this finding, the district court imposed this enhancement.
Franklin argues that the district court erred because, as the months passed after Franklin and Piers first attempted to rob the credit union, Franklin did not believe the robbery would occur, and thus could not reasonably foresee the discharge of a firearm during its commission. Franklin, however, did nothing formally to withdraw from the conspiracy. Moreover, up to two months prior to the June robbery, Franklin continued to provide Piers with information regarding the credit union's security procedures. Franklin knew of the robbery plans and agreed with Piers that weapons should be used "in a threatening manner" during the robbery. Accordingly, Franklin remained responsible for the foreseeable acts of the conspiracy of which he was a part. Hence, the district court did not clearly err in finding that the discharge of a firearm was reasonably foreseeable in this case, and we affirm its application of the seven-level enhancement.
The Sentencing Guidelines provide for a two-level enhancement when a defendant "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." U.S.S.G. § 3C1.2. Notwithstanding Franklin's absence from the scene of the robbery and the attempted escape of his confederates, the district court applied this enhancement to Franklin based on Piers's and Hubbard's reckless driving when attempting to evade police. The district court applied the enhancement because the original plan developed by Franklin and Piers included the use of two getaway cars. The district court explained that the plan formulated by Piers and Franklin "specifically ... contemplated the use of vehicles, indeed, two vehicles, to effect the escape," and determined that "it was entirely foreseeable that some unplanned event might cause the presence of police officers or someone else who could get in the way of the escape."
Knowingly participating in an armed robbery in which getaway vehicles are part of the plan is insufficient as a matter of law, without more, to allow a district court to impose this enhancement on individuals not directly committing the acts amounting to reckless endangerment. "Not every escape escalates into reckless endangerment during flight," Young, 33 F.3d at 33, and the conduct that recklessly endangers must be more than reasonably foreseeable. "At a minimum, the Government must establish that [a defendant] did more than just willfully participate in the getaway chase" for the enhancement to apply. Young, 33 F.3d at 32(declining to apply this enhancement to defendants who were merely passengers during the getaway). The government "must prove that each defendant was responsible for or brought about the driver's conduct in some way." Id. at 32-33.
Here, the government did not adequately demonstrate as required by Young that Franklin "aided or abetted, counseled, commanded, induced, procured, or willfully caused" the driver's conduct that recklessly endangered. U.S.S.G. § 3C1.2 cmt. n. 5 (2000). Accordingly, we reverse the district court's application of section 3C1.2, vacate Franklin's sentence, and remand for resentencing without this enhancement.
Piers requests that we reverse his convictions on several grounds.
Piers argues first that the district court should have allowed his retained attorney to withdraw so he could obtain new counsel. Piers did not formally move for substitution of counsel, but his actions and those of his trial counsel were consistent with the desire for new representation. On January 26, 2001, Piers's mother wrote his trial counsel, Rex Butler, and requested that he withdraw from Piers's case. On January 30, 2001, six days before Piers's trial was scheduled to begin, Butler filed a motion to withdraw, stating that (1) the Piers family "is unhappy with my services"; (2) Piers "is unable and or unwilling to pay for the trial"; and (3) his motion is based on "the break down in attorney client communications."
Assuming, without deciding, that Butler's request to withdraw was tantamount to a motion...
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