United States v. Tull ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 30 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 98-3253
(D. Ct. No. 98-CR-20021-2)
AMANDA D. TULL, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
This appeal is from an order of the district court sentencing defendant Tull
to a seventy month term of incarceration which included a two-level enhancement
pursuant to U.S.S.G. § 3B1.1(c). Defendant appeals on the ground that the
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
district court erred in applying the two-level enhancement for defendant Tull’s
role in the offense. We affirm.
Defendant Tull pled guilty to a one-count indictment which charged her
with kidnaping and carrying away newborn baby Carlie Shockey from the Kansas
University Medical Center and willfully transporting her in interstate commerce
from the state of Kansas to the state of Missouri in violation of 18 U.S.C.
§§ 1201(a)(1) and 2. The presentence report in this matter recommended a two-
level increase in defendant’s sentence for her role as an organizer or leader in the
offense pursuant to U.S.S.G. § 3B1.1(c). Defendant argues on appeal that the
district court lacked a sufficient factual basis for this enhancement.
The factual basis upon which the two-level enhancement was imposed
relies upon the plans that defendant clearly made with respect to purchasing a
baby bed for her home, entering the University of Kansas Medical Center when
security guards were not on duty in the maternity ward, and the availability of the
car seat, which was given to the co-defendant to place in the car. Defendant
objected to the enhancement at the sentencing hearing which was held on
September 1, 1998. The district court denied defendant’s objection and imposed
the two-level enhancement. In reviewing a district court’s decision to impose an
enhancement pursuant to § 3B1.1(c), we review the underlying factual findings
for clear error and the legal conclusions de novo. See United States v. Shumway,
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112 F.3d 1413, 1424 (10th Cir. 1997).
Defendant claims on appeal that she should not have been subject to the
two-level enhancement because she was the only person with criminal culpability
in the crime. Co-defendant Mr. Hall pled guilty to being an accessory after the
fact and there were no other participants in this offense. The relevant inquiry in
the imposition of a two-level enhancement for a role in the offense is whether the
defendant had any decision-making or any managerial authority in the criminal
enterprise. The factual basis that is provided in the presentence report and was
relied upon at the sentencing hearing is clearly adequate to show criminal
culpability of both of the co-defendants and that the defendant’s role in the
offense took into account all of the conduct within the criminal enterprise. It is
sufficient under the United States Sentencing Guidelines that other persons whom
a defendant supervised were culpably involved in the charged crimes that were
part of the same course of conduct or common scheme or plan as the offense of
conviction. See United States v. Allemand, 34 F.3d 923, 931 (10th Cir. 1994).
All of the facts that support the leader or organizer status of this defendant were
before the district court and fully support the imposition of the two-level
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enhancement. We AFFIRM.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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