U.S. v. Zelaya, 95-10291

• Decision Date: 02 June 1997
• Docket Number: No. 95-10291,95-10291
• Citation: 114 F.3d 869
• Parties: 97 Cal. Daily Op. Serv. 4127, 97 Daily Journal D.A.R. 6929 UNITED STATES of America, Plaintiff-Appellee, v. Scottie Lee ZELAYA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 869

114 F.3d 869

97 Cal. Daily Op. Serv. 4127, 97 Daily Journal

D.A.R. 6929

UNITED STATES of America, Plaintiff-Appellee, v. Scottie Lee ZELAYA, Defendant-Appellant.

No. 95-10291.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 1997.

Decided June 2, 1997.

Jeffrey L. Staniels, Chief Assistant Federal Defender, Sacramento, California for appellant.

Richard Pachter, Assistant United States Attorney, Sacramento, California for appellee.

Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, District Judge, Presiding. D.C. No. CR-95-00071-02-GEB.

Before: HUG, Chief Judge, THOMPSON and KLEINFELD, Circuit Judges.

OPINION

HUG, Chief Judge.

Appellant Scottie Lee Zelaya appeals from the 37-month sentence imposed following his guilty plea and subsequent conviction on a charge of bank robbery, in violation of 18 U.S.C. § 2113(a). Because we conclude that the district court improperly applied a sentence enhancement in determining Zelaya's sentence, we vacate Zelaya's sentence and remand for resentencing.

I. Background

The facts surrounding the bank robbery for which Zelaya pled guilty are not in dispute. On January 6, 1995 Gary Motz robbed a Wells Fargo Bank branch in Stockton, California, using a chrome-plated starter pistol. During the course of the robbery, Motz said to a teller "I'm going to rob you today," and passed her a note that read: "If you push the alarm I'm going to kill you and all of us." Motz escaped from the bank with $1,995 in cash.

Zelaya was waiting outside the bank in a getaway car. Police located the car using eyewitness information, and discovered that it belonged to a nearby car dealership. Motz and Zelaya had obtained the car by representing to the dealer that they wished to take it for a test drive. Because Motz had provided his telephone number to the car dealer before taking the "test drive," police had little trouble finding Motz and Zelaya at Motz's apartment. Both men were arrested and charged with bank robbery.

Zelaya agreed to plead guilty to one count of aiding and abetting a bank robbery. The presentence report recommended a two-level enhancement under the Sentencing Guidelines based upon Motz's making an express threat of death to the bank teller during the robbery. Both the Government and defense counsel objected to the enhancement, contending that Zelaya had no reason to expect that Motz would make that threat while carrying out the robbery. Notwithstanding, the district court found that the enhancement was appropriate, and sentenced Zelaya accordingly. Zelaya now appeals his sentence, challenging only the application of the enhancement.

II. Discussion

The district court applied the enhancement provision found at § 2B3.1(b)(2)(F), which provides that a robbery sentence should be increased by two levels if "an express threat of death was made" during the course of the robbery. Because Zelaya was convicted as an accomplice to Motz's bank robbery, the application to his sentence of the death threat enhancement is governed by USSG § 1B1.3(a), which states that "in 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."

Thus the district court, applying § 2B3.1(b)(2)(F) by way of § 1B1.3(a), must first determine the scope of the criminal activity that the particular defendant agreed, either explicitly or implicitly, to undertake jointly. USSG § 1B1.3 Application Note 2. The court must then determine whether the conduct that forms the basis of the enhancement (here, Motz's death threat) (1) occurred during the course of the criminal activity; (2) was done "in furtherance of" the criminal activity; and (3) was "reasonably foreseeable in connection with" the criminal activity. Id.

There is no dispute that Motz's death threat occurred during the course of, and was done in furtherance of, the bank robbery. Zelaya contends, however, that it was not "reasonably foreseeable" to him that Motz would make the death threat during the course of the robbery.

The district court pointed to no facts peculiar to this bank robbery that would support the finding of foreseeability. To the contrary, the circumstances of this robbery, as reflected in the record, appear to point against such a finding: (1) Motz attested that he never told Zelaya about a death threat before the robbery and did not himself know what he would say once inside the bank; (2) it was not established that Zelaya knew that Motz would use a weapon to carry out the robbery; and (3) there was very limited discussion between the two men about the robbery prior to its execution.

Instead, the district court appeared to conclude that the threat was foreseeable based upon its observation that in any bank robbery the robber is "going to have to do something to intimidate the teller," and that, given the fact that the robber must make some intimidating statement, an express death threat is reasonably foreseeable.

We conclude that a finding of reasonable foreseeability must be based upon something more than the district court's observations about bank robberies in general. C.f. United States v. Castaneda, 9 F.3d 761, 767 (9th Cir.1993) (despite recognized nexus between guns and drugs, there is no presumption that guns are foreseeable in drug transactions, and the burden of proving foreseeability is on the Government). Indeed, it would make little sense for the Commission to have fashioned a robbery enhancement the basis for which could properly be implied from the fact of the robbery alone. If this were the Commission's intent, it could simply have provided for a two-level enhancement to an accomplice's sentence whenever it is determined that the perpetrator made an express death threat during the robbery. Further, the Commission's commentary indicates that the enhancement should apply only in particularly egregious cases: "[t]he intent of the [death threat] provision is to provide an increased offense level for cases in which the offender(s) engaged in conduct that would instill in a reasonable person, who is a victim of the offense, significantly greater fear than that necessary to constitute an element of the offense of robbery." USSG § 2B3.1 Application Note 6. We cannot agree with the district court's reasoning that in every bank robbery the perpetrator's accomplice reasonably can foresee an express death threat being made.

In support of the district court's determination the Government points to Application Note 2 to § 1B1.3, which states:

Note that the criminal activity that the defendant agreed to jointly undertake, and the reasonably foreseeable conduct of others in furtherance of that criminal activity, are not necessarily identical. For example, two defendants agree to commit a robbery and, during the course of that robbery, the first defendant assaults and injures a victim. The second defendant is accountable for the assault and injury to the victim (even if the second defendant had not agreed to the assault and had cautioned the first defendant to be careful not to hurt anyone) because the assaultive conduct was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense).

The Government correctly states that this court has applied this application note to conclude that a defendant-accomplice could reasonably foresee an injury to a victim as part of a jointly undertaken...