U.S. v. Pringle, 01-14602.

• Decision Date: 14 November 2003
• Docket Number: No. 01-14602.,01-14602.
• Citation: 350 F.3d 1172
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry PRINGLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

350 F.3d 1172

UNITED STATES of America, Plaintiff-Appellee, v. Jerry PRINGLE, Defendant-Appellant.

No. 01-14602.

United States Court of Appeals, Eleventh Circuit.

DECIDED November 14, 2003.

COPYRIGHT MATERIAL OMITTED

Natasha Horne Moffitt, Courtland L. Reichman (Court-Appointed), King & Spalding, Atlanta, GA, for Defendant-Appellant.

George F. Peterman, III, Macon, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before DUBINA, WILSON and KRAVITCH, Circuit Judges.

WILSON, Circuit Judge:

Appellant Jerry Pringle challenges the district court's denial of his pro se motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) (hereinafter "motion to reduce"). We address two challenges raised by Pringle on appeal. First, Pringle argues that the district court erred in calculating his original sentence by taking into account acts committed by Pringle's co-conspirators that were not "reasonably foreseeable" to Pringle in contravention of United States Sentencing Guideline § 1B1.3 (2002) ("U.S.S.G."). Second, Pringle argues that, even if such acts were reasonably foreseeable, his sentence should be reduced retroactively pursuant to Amendment 599 to § 2K2.4 of the Sentencing Guidelines.

The district court ruled that Pringle's sentence did not violate U.S.S.G. § 1B1.3 because the acts in question were in fact reasonably foreseeable to Pringle. In addition, the court ruled that Amendment 599 does not apply to the facts of Pringle's conviction, thereby making U.S.S.G. § 2K2.4 inapplicable. Thus, the court upheld Pringle's original sentence. We agree with the district court and affirm.

I. BACKGROUND

On August 27, 1991, Jerry Pringle was convicted of three federal offenses arising out of a series of robberies in Georgia and North Carolina. These convictions resulted from four separate criminal incidents. On September 11, 1989, Pringle and his co-conspirators robbed the Liberty Savings Bank in Macon, Georgia. Pringle's personal involvement in the conspiracy ended here. After this robbery, the following robberies or attempted robberies occurred: Cameron's Jewelry Store on February 9, 1990; Ron's Pawn Shop on March 16, 1990; and North Carolina National Bank on May 10, 1990.

Pringle was convicted of Counts One, Four, and Seven of the seven-count indictment Count Four charged Pringle for robbery of the Liberty Savings Bank, in violation of 18 U.S.C. § 2113(a) and (d).¹ Count Seven separately charged Pringle for his use of a firearm during the robbery of Liberty Savings Bank, in violation of 18 U.S.C. § 924(c).² This was Pringle's only conviction under 18 U.S.C. § 924(c). Finally, Count One charged Pringle for conspiring to commit a burglary and six robberies in violation of the Hobbs Act, 18 U.S.C. § 1951,³ some of which involved the use of firearms.

Adopting the probation officer's recommendations, the district court sentenced Pringle to a period of 168 months on Counts One and Four to run concurrently plus an additional sixty months sentence on Count Seven to run consecutively, for a total of 228 months. Consistent with U.S.S.G. § 1B1.2(d), the conspiracy count was treated as four "pseudo counts," one count each for the robberies of the Liberty Savings Bank, Cameron's Jewelry Store, Ron's Pawn Shop, and the North Carolina Bank. The court enhanced the base offense levels for the two conspiracy charges relating to the robberies of Cameron's Jewelry Store and the North Carolina Bank by three levels for a co-conspirator's possession of a firearm during each robbery. The court also enhanced the base offense level for the robbery of Ron's Pawn Shop by five levels for the discharge of a firearm, and by four levels for the bodily injury of store owner Ron Shirlen incurred as a result of the discharge. Without these enhancements, the combined adjusted offense level for the conspiracy charges would have been only 27 rather than 32, which would have reduced Pringle's sentencing guideline range from 135-168 months to 78-97 months, or a resulting sentence of approximately five years less. The use of a firearm during the Liberty Savings Bank robbery did not serve as the basis for any enhancement.

On August 11, 1994, we affirmed Pringle's sentence and conviction.⁴ In February, 2001, Pringle filed pro se a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court denied this motion on June 5, 2001, and Pringle appealed. The district court analyzed this motion under the framework we established in United States v. Diaz, 248 F.3d 1065 (11th Cir.2001), and we do the same.

II. DISCUSSION

Criminal defendants may be held liable for the reasonably foreseeable actions of their co-conspirators. Diaz, 248 F.3d at 1099 (citing United States v. Bell, 137 F.3d 1274, 1275 (11th Cir.1998)). With respect to sentencing, U.S.S.G. § 1B1.3(a)(1)(B) requires that "in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity" should be taken into account in calculating the defendant's appropriate sentence. See United States v. Gallo, 195 F.3d 1278, 1281 (11th Cir.1999) (emphasis added). According to the United States Supreme Court, this "reasonable foreseeability requirement of § 1B1.3(a)(1)(B) [carries] the binding force of a legislative enactment." Id. at 1283-84 (citing Williams v. United States, 503 U.S. 193, 200-01, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992)).

18 U.S.C. § 3582(c)(2) gives retroactive effect to certain amendments to the Sentencing Guidelines that lower the sentencing range upon which an earlier sentence was based.⁵ Pringle's motion to reduce is based on Amendment 599 to § 2K2.4 of the Sentencing Guidelines (effective November 1, 2000). Amendment 599 is listed in U.S.S.G. § 1B1.10(c), making it one for which retroactive application may be appropriate. Amendment 599 was enacted to clarify under what circumstances a weapons enhancement may be applied to an underlying offense when the defendant has also received an 18 U.S.C. § 924(c) conviction, which provides separate punishment for the use or possession of a firearm in a violent crime. See United States v. White, 305 F.3d 1264, 1266 (11th Cir.2002); see also U.S. SENTENCING GUIDELINES MANUAL supp. to app. C at 70 (2002).

In determining whether Pringle should be held accountable for his co-conspirators possession of a firearm during the robberies that formed the basis of Pringle's conspiracy conviction, we engage in a three-part analysis. We must determine (1) if Pringle was part of a jointly undertaken criminal activity, whether or not charged as a conspiracy; (2) whether the acts of Pringle's co-conspirators that took place after the robbery of Liberty Savings Bank were reasonably foreseeable to Pringle. If these first two factors are satisfied, we must then consider (3) whether Amendment 599 retroactively bars punishment for these acts. The jury answered the first two questions in the affirmative, and the district court affirmed those findings. The third issue is a matter of statutory interpretation and an issue of first impression in this circuit.

A. JOINTLY UNDERTAKEN CRIMINAL ACTIVITY

To the extent Pringle argues that he was not a member of the conspiracy and hence cannot be found guilty of the acts of his co-conspirators, we find this argument to be without merit. To prove a Hobbs Act conspiracy under 18 U.S.C. § 1951, the government must prove that (1) two or more persons agreed to commit a robbery or extortion encompassed within the Hobbs Act; (2) the defendant knew of the conspiratorial goal; and (3) the defendant voluntarily participated in helping to accomplish the goal. Diaz, 248 F.3d at 1084 (citing United States v. To, 144 F.3d 737, 747-48 (11th Cir.1998); United States v. Thomas, 8 F.3d 1552, 1556 (11th Cir.1993)).

Applying the appropriate standard of review,⁶ in considering Pringle's motion to reduce his sentence, the district court properly found that there was more than sufficient evidence to uphold the jury's findings that a conspiracy existed and that Pringle was a knowing and willing participant in this conspiracy. There is abundant record testimony from numerous witnesses who testified about the exact details of the conspiracy, including various members of the conspiracy, family members of the defendants, witnesses to the crimes, and victims of the robberies. In addition, several witnesses, including one conspirator's girlfriend and another conspirator's mother, testified that Pringle was a member of "The Posse." Other witnesses close to the group testified as to Pringle's involvement in the group's criminal acts. One witness, for example, testified that her car was the one used by the conspirators in the Liberty Savings Bank robbery and that it was found after the robbery at Pringle's apartment complex. After reviewing the record and the district court's order, we affirm the district court's finding sustaining the jury's verdict of guilty for Pringle's conspiracy count, thereby satisfying the first element of our three-part test.⁷

B. REASONABLE FORESEEABILITY

Pringle argues on appeal that the crimes occurring after the Liberty Savings Bank robbery were not reasonably foreseeable to him, and thus should not have served as the basis for a weapons enhancement. Additionally, Pringle argues that because the use of a firearm by a co-conspirator at Ron's Pawn Shop was not foreseeable, the bodily injury that occurred as a result of its discharge was also not foreseeable, and therefore should not have led to an additional enhancement.

In order to determine the appropriate standard of review, we rely upon our lengthy analysis in United States v. Williams, 340 F.3d 1231 (11th Cir.2003), which harmonized our precedents setting...