United States v. Sanders ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4972
SCOTTY DEWAYNE SANDERS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Matthew J. Perry, Jr., Senior District Judge.
(CR-95-837)
Submitted: September 11, 1997
Decided: September 23, 1997
Before RUSSELL, MURNAGHAN, and HAMILTON,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Marshall Prince, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Scotty Dewayne Sanders challenges his conviction and sentence,
on a guilty plea, for aiding and abetting the use of a firearm in a crime
of violence under 18 U.S.C. §§ 924(c)(1), 2 (1994). While Sanders
admits that he aided and abetted in the robbery in which his co-
defendant used and carried a firearm, he challenges on appeal the suf-
ficiency of the factual basis to support the district court's acceptance
of his guilty plea as to his aiding and abetting the use of the firearm.
Specifically, Sanders admits to helping to plan the robbery, accompa-
nying his co-defendants to pick up a shotgun that Sanders knew
would be used in the robbery, accompanying the co-defendants to the
scene of the robbery, making sure the laundromat was clear for the
robbery to take place, fleeing the scene with the co-defendants, and
joining in the split of proceeds from the robbery. However, he claims
that because he did not personally use or carry the firearm, and did
not direct or counsel his co-defendant, the stipulated leader of the
crime, to use the firearm in the robbery, the government has not pres-
ented a sufficient factual basis to support his guilty plea as to the use
of the firearm. He asserts that the Supreme Court's decision in Bailey
v. United States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995)
(No. 94-7448), was intended to limit convictions under § 924(c) to
those defendants actually using or carrying firearms. For the reasons
set forth below, we reject Sanders's claims and affirm his conviction
and sentence.
To be convicted of aiding and abetting, the government must show
that a defendant knowingly associated with a criminal and partici-
pated in an unlawful undertaking. United States v. Winstead, 708 F.2d
925, 927 (4th Cir. 1983). Also, a person convicted of using a firearm
in a crime of violence may be punished both for the underlying crime
and for the § 924(c) charge. United States v. Luskin, 926 F.2d 372,
375-78 (4th Cir. 1991). Title 18 U.S.C. § 2 provides that an aider and
abettor is punishable as a principal.
2
There is no dispute that the conduct of Sanders's co-defendant
clearly constituted "use or carry" of a firearm during and in relation
to a crime of violence, in violation of § 924(c), and as that term has
been defined by this court and under Bailey. Given the facts of this
case, we find that it was reasonably foreseeable that Sanders's co-
defendant would use the gun in the commission of the robbery. The
co-defendant's actions were properly attributed to Sanders under the
theory set forth in Pinkerton v. United States , 328 U.S. 640 (1946).
Since Sanders aided and abetted his co-defendant in the robbery, he,
like his co-defendant, is punishable for the co-defendant's use of the
firearm. See United States v. Simpson, 979 F.2d 1282, 1285 (8th Cir.
1992).
Accordingly, we affirm the district court's acceptance of Sanders's
guilty plea, and affirm Sanders's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the Court and argument
would not aid the decisional process.
AFFIRMED
3