U.S. v. Hoskins

• Decision Date: 07 March 2002
• Docket Number: No. 00-50045.,00-50045.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dereck Ricardo HOSKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F.3d 772

UNITED STATES of America, Plaintiff-Appellee, v. Dereck Ricardo HOSKINS, Defendant-Appellant.

No. 00-50045.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 15, 2002.

Filed March 7, 2002.

COPYRIGHT MATERIAL OMITTED

Richard D. Rome, Van Nuys, CA, for the defendant-appellant.

Sally L. Meloch, Assistant United States Attorney, United States Attorney's Office, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Lourdes G. Baird, District Judge, Presiding. D.C. No. CR-99-00257-LGB-6.

Before: SCHROEDER, Chief Judge, CUDAHY^*, and McKEOWN, Circuit Judges.

McKEOWN, Circuit Judge.

Dereck R. Hoskins was convicted for his participation in the robbery of a K Mart store in Los Angeles, California. At the time of the robbery, Hoskins had been working for only a month as a security guard at the store. He helped plan and carry out the robbery while posing as a "victim" of the armed robbery. Hoskins appeals his conviction under 18 U.S.C. § 924(c), arguing that there was insufficient evidence to support the conviction. He also challenges the two two-level sentencing enhancements imposed under U.S.S.G. § 2B3.1(b)(4)(B) and § 3B1.3. We affirm the conviction, but reverse the sentence in part because the abuse of trust enhancement under U.S.S.G. § 3B1.3 is not applicable to Hoskins.

BACKGROUND

Hoskins was charged for his involvement in a single robbery of a K Mart store on November 9, 1997. Although that robbery was part of a series of related K Mart robberies that occurred between May 1997 and January 1998, only the November 9 robbery is at issue in this appeal.

At the time of the robbery, Hoskins had just completed his first month working as a security guard at a K Mart store in Los Angeles. Yvette Crystal Wade, one of Hoskins's co-defendants and his girlfriend at the time, helped Hoskins get the job; she informed Hoskins of the security guard position and served as a reference for him. Wade, who worked at various K Mart stores between 1985 and 1997, was also involved in several of the other robberies.

As a plainclothes security guard, Hoskins was responsible for sitting in the security room and watching the security monitors between 8:00 and 10:00 am each morning; at least one of the security cameras was trained in on the cash room. Hoskins was supposed to call 911 if he observed any suspicious activity. Hoskins was responsible for ensuring that video recordings were being made of the surveillance. In addition, Hoskins had safety-related duties, such as ensuring that spills on the store floor were cleaned up promptly.

Hoskins and Wade were among several who plotted and participated in the November 9 robbery. The night before the robbery Hoskins and the other conspirators met to plan the caper. At the meeting, it was decided that Lorenzo Gregge would be the actual robber. Once Gregge was inside the K Mart store, Hoskins was to give him a signal that it was okay to proceed with the robbery. Among other things, the conspirators also planned Gregge's getaway from the store. On the morning of the robbery, the conspirators, including Hoskins, met again to confirm their plan. Gregge had a gun and pair of handcuffs in his possession at this meeting.

After the morning meeting, the conspirators proceeded to the K Mart. Instead of watching the security monitors as his employer required, Hoskins stationed himself on the sales floor so that he could play his assigned role in the robbery. After receiving the agreed upon signal from Hoskins, Gregge followed Hoskins from the sales floor to the store's cash room. Maria Villegas was the attendant in the cash room that morning. Gregge, with a gun drawn, instructed Villegas to open the door to the "cage" where the cash was kept. Gregge instructed Villegas and Hoskins to lie down on the floor; he gave Hoskins the handcuffs and instructed him to attach himself to Villegas. Hoskins, however, as part of his effort to act scared, was shaking so badly that he was unable to do so. Consequently, Villegas did the cuffing. Gregge pointed the gun at Hoskins and Villegas and instructed them to "stay down." After collecting the money in the cash cage, Gregge exited the store and was driven away by another participant as planned.

Hoskins was convicted of conspiracy to interfere with commerce by robbery and interference with commerce by robbery in violation of 18 U.S.C. § 1951 and of carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). The district court sentenced Hoskins to 117 months imprisonment. The district court determined that Hoskins had a Criminal History Category of I and a total offense level of 25 for a range of 57 to 71 months. In addition, § 924(c) entails a 60-month mandatory minimum sentence. The offense level included a two-level increase, pursuant to U.S.S.G. § 2B3.1(b)(4)(B), for physically restraining a victim while committing robbery, and a two-level increase for abuse of a position of trust pursuant to U.S.S.G. § 3B1.3.

DISCUSSION

Hoskins appeals his conviction under § 924(c) and the application of the two sentencing enhancements.

I. SECTION 924(C)

We review de novo Hoskins's claim that there was insufficient evidence to support his conviction under § 924(c). United States v. Antonakeas, 255 F.3d 714, 723 (9th Cir.2001). A conviction is supported by sufficient evidence if, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Crawford, 239 F.3d 1086, 1092 (9th Cir.2000).

Section 924(c) establishes a five-year mandatory minimum sentence for "a person who ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm," in connection with a "crime of violence." Although Gregge, not Hoskins, possessed and used a firearm during the robbery, Hoskins is vicariously liable as one of Gregge's co-conspirators for any reasonably foreseeable crimes that were committed in furtherance of the conspiracy. See United States v. Fonseca-Caro, 114 F.3d 906, 907 (9th Cir.1997) (applying vicarious liability for § 924(c) offense). The question on appeal is whether there was sufficient evidence to support a conviction on the ground that a co-conspirator's carrying a firearm while committing the K Mart robbery was foreseeable.

Hoskins emphasizes the absence of any evidence indicating that a gun was explicitly mentioned or revealed during the two robbery planning meetings. The government, however, is not required to establish that Hoskins had actual knowledge of the gun. The touchstone is foreseeability. See United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1203 (9th Cir.2000). In Alvarez-Valenzuela, the defendant was invited, in exchange for money, to help carry marijuana across the U.S.-Mexico border. Alvarez was casually invited to participate in the smuggling by a friend who was working as a guide for the traffickers. One of the traffickers had a gun. There was only scant evidence that Alvarez had actually seen the gun. Nonetheless, we affirmed the § 924(c) conviction, reasoning that, "[b]oth the value of [the] marijuana and the nature of violence in the drug trade support an inference that Alvarez could have foreseen that a gun might be present." Id. at 1204 We rejected Alvarez's effort to "turn the case on the fact that there was no evidence that he personally possessed the gun." Id. at 1203.

In order for Hoskins to be found vicariously liable for the § 924(c) offense, he must have had a sufficiently high level of involvement in the robbery. See United States v. Castaneda, 9 F.3d 761, 766-68 (9th Cir.1993) (vacating 924(c) conviction on foreseeability grounds where defendant's relationship to underlying drug transaction was tenuous), over ruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir.2000). Were he a "bit" player, the inference of foreseeability might be marginal. Here, however, there is considerable evidence evincing Hoskins's intensive involvement in the robbery's planning and execution, as well as a sufficient basis to conclude that use of a gun was foreseeable.

The robbery was planned in detail during the two meetings that occurred the night before the robbery and the morning of the robbery. Hoskins participated in both meetings. During the course of those meetings, it became clear that Hoskins would have a primary role. Indeed, without Hoskins's assistance, the plan to overtake the cash office would have had no teeth. This is not a case of Hoskins playing a tangential or casual role in the crime. His involvement was integral to the success of the conspiracy.

As to the foreseeability of the use of a gun, Gregge had the firearm and handcuffs in his possession during the meeting that occurred on the morning of the robbery. In addition, Hoskins was involved in a romantic relationship with Wade who had participated in a series of previous armed K Mart robberies that involved many of the same conspirators who planned the November 9 robbery. The crux of the plan for this robbery was that Hoskins would become a victim and would submit to the robbers. It is reasonable to infer that the plan must have envisioned some use of force or intimidation in order to overtake the cash room. Drawing all inferences in favor of the government, as we must, it was reasonable for the jury to surmise that use of a weapon would be required in order to appear to subdue both the security guard and the individual in charge of the cash room. In short, the evidence in total was sufficient to permit a reasonable juror to conclude that Gregge's carrying a firearm was foreseeable.

II. SENTENCING

We next review Hoskins's challenge to his sentencing enhancements. The interpretation of a sentencing guideline is subject to de novo review, United States v. Reyes-Pacheco, 248 F.3d...