United States v. Earl Thomas Anderson , 895 F.2d 641 ( 1990 )

STOTLER, District Judge:

Appellant Earl Thomas Anderson appeals his sentence, pursuant to the Sentencing Guidelines, imposed after a conditional plea of guilty to violation of Title 18 U.S.C. Section 2113(a) and (d), armed bank robbery. The District Court concluded that appellant was properly classified as an organizer, leader, manager or supervisor pursuant to Section 3Bl.l(c) of the Guidelines despite his co-defendant’s unawareness of the criminal enterprise until after commission of the unlawful act. We affirm the District Court’s decision that a two-level increase pursuant to Section 3B 1.1(c) is appropriate in this case.

I.

FACTS AND PROCEDURAL HISTORY

On December 11, 1987, Anderson and an individual named Alan Richards were observed by law enforcement officers “casing” a Security Pacific Bank in Redding, California. Six days later Anderson robbed, at gunpoint, that same bank.

Subsequent to the robbery, police found appellant’s car on Niles Lane. The officers gave chase when appellant and his co-defendant Gary Lee Hambley drove away. After their arrest, Hambley told officers he was unaware Anderson was going to commit a robbery since Anderson had picked him up that morning on the ruse of going to work. Hambley maintained that after they parked the car near the bank, Anderson told him to open the trunk and wait; thereafter, Anderson returned, jumped into the truck and instructed Hambley to drive to the Niles Street location. Upon arriving there, Anderson told Hambley he had just robbed a bank.

On December 18, 1987, the Grand Jury for the Eastern District of California returned a two-count Indictment: Count One against appellant and Hambley for violation of 18 U.S.C. Section 2113(a) and (d), armed robbery, and Count Two against Hambley for violation of 18 U.S.C. Section 3, accessory after the fact.

On February 4, 1988, appellant entered a conditional plea of guilty to Count One.¹ Hambley was tried as the driver of the get-away vehicle, but the jury failed to reach a verdict. Upon the filing of a Superseding Information, Hambley pled guilty to misprision of a felony in violation of 18 U.S.C. Section 4.

A Pre-Sentence Report calculated appellant’s total offense level at twenty-two (22),² including two (2) points for his leadership role in the offense. The report concluded that,

[sjince there is strong evidence the defendant was in the process of recruiting a getaway driver prior to the robbery and two people are known to have been recruited, coupled with the fact that the defendant’s and co-defendant’s statement indicate the co-defendant was not aware of the robbery until after it occurred, it would appear the defendant had an aggravating role in the offense. Even if one believes that co-defendant was tricked into being the getaway driver, the mere act of trickery to cause the co-defendant to become a participant in the crime would appear to strongly forward the proposition the defendant played a leadership role. Pursuant to Section 3Bl.l(c), two levels are added.

Pursuant to local rule, defendant’s counsel filed a “Motion to Correct Pre-Sentence Report and Statement of Formal Objections Thereto,” specifically asking the trial court to eliminate the two-level upward adjustment imposed pursuant to Section 3B1.1 on the ground that Anderson was the sole participant.

The Government’s response assumed for purposes of appellant’s motion that Hamb-ley had no knowledge he was accompanying appellant for the purpose of committing a bank robbery.

Appellant’s motion to correct the Pre-Sentence Report was denied after hearing on April 27, 1988. The trial court’s decision assumed that the co-defendant was not criminally responsible for the crime of robbery. No evidence was taken and sentencing was based solely on the undisputed facts of the Pre-Sentence Report. Appellant was sentenced to serve forty-six months incarceration under offense level twenty-two, a period of supervised release for three years with an order of restitution among other conditions, and the statutory assessment.

This is the second appeal in this action. On the first appeal, Ninth Circuit No. 88-367, the matter was reversed and remanded on the Court’s own motion in light of Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988). On January 18, 1989, before appellant’s resentencing, the United States Supreme Court upheld the constitutionality of the Sentencing Guidelines. Mistretta v. United States, 488 U.S. 647, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Accordingly, on January 27, 1989, the District Court resentenced appellant to the same sentence (except that it struck the $50.00 penalty assessment based on United States v. Munoz-Flores, 863 F.2d 654 (9th Cir.1988), cert. granted, — U.S. -, 110 S.Ct. 48, 107 L.Ed.2d 17 (1989)).

II.

STANDARD OF REVIEW

Appellant seeks a ruling that his sentence was imposed as a result of an incorrect application of the Sentencing Guidelines. See 18 U.S.C. § 3742(a)(2). This Court “shall give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e).

The “due deference” language added to Section 3742 on November 18, 1988 does not create a new standard of review. It does require the Court to determine what degree of factual inquiry is involved, and to apply the corresponding standard. United States v. Mejia-Orosco, 868 F.2d 807, 809 (5th Cir.1989). If the inquiry is a purely factual one, the “clearly erroneous” standard applies. United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989); United States v. Wills, 881 F.2d 823, 825 (9th Cir.1989). As the inquiry becomes more of a purely legal question, the “de novo ” standard applies. See Mejia-Orosco at 809; see also United States v. Restrepo, 884 F.2d 1294, 1295 (9th Cir.1989) (reviewing de novo an application of the Sentencing Guidelines). Accordingly, this Court reviews the district court’s application of the Sentencing Guidelines de novo in this case, because no factual inquiry is involved.

III.

DISCUSSION

The District Court determined that pursuant to Section 3Bl.l(c) appellant’s “role in the offense” required a two-level increase in his total offense level.

Section 3B1.1 provides:

Based on the defendant’s role in the offense, increase the offense level as follows:

(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager ... and the criminal activity involved five or more participants, or was otherwise extensive, increase by 3 levels.

(c)If the defendant was an organizer, leader, manager or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.

Appellant contends that his role in the bank robbery was inaccurately classified as that of a leader because Hambley was not aware of his participation in the offense until after its commission.

Specifically, appellant relies upon the Introductory Commentary to Section 3B1.1 which reads:

This Part provides adjustments to the offense level based upon the role the defendant played in committing the offense. When an offense is committed by more than one participant, Section 3B1.1 or Section 3B1.2 (or neither) may apply.

Although absent from subsection (c), the term “participant” appears in Section 3B1.1 subsections (a) and (b) and in the Introductory Commentary. Appellant argues that the absence of the term “participant” from subsection (c) was simply an oversight, and that all of the subdivisions of Section 3B1.1 require the presence of one or more participants in the criminal activity before the two-level upward adjustment can apply.

Appellant points to the definition of “participant” in paragraph 1 of the Commentary following Section 3B1.1:

A “participant” is a person who is criminally responsible for the commission of the offense but need not have been convicted.

Thus, Commentary both before and after the guideline refers to a “participant” but subsection (c) omits the term. Hambley was not criminally responsible for the robbery because he neither had the knowledge nor the intent to commit an illegal act. Hambley was simply tricked into driving the get-away vehicle. Therefore, Hambley was not a “participant” under the guideline definition.

The Government urges the Court to adopt a literal construction of subsection (c) without the requirement of “participants” as defined by the Commentary. It argues that the term "participant" was intentionally omitted from subsection (c), which was designed as a catch-all provision for those circumstances where defendant supervised a criminal enterprise not contemplated by subsection (a) and (b). The four- and three-level increases allotted in subsections (a) and (b), respectively, compared with the two-level increase assigned to subsection (c) support this argument. Comparatively, argues the Government, the first two subsections require a larger criminal enterprise and more significant involvement on the part of the defendant than subsection (c), which accounts for defendants who organize or supervise less extensive criminal activity.

The construction propounded by the Government is in accordance with the basic principles of statutory construction as set forth in Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300-01, 78 L.Ed.2d 17 (1983). The Court held that "``where Congress includes a particular language in one section of a statute but omits it in another section of the same act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion and exclusion.'" Id. at 23, 104 S.Ct. at 300 (quoting U.S. v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)); see also Arizona Elec. Power v. United States, 816 F.2d 1366, 1377 (9th Cir.1987). The reasoning in Russello is persuasive in this case, where the Court is analyzing subparagraphs within the same section.

The significance of the Guideline's Commentary should be noted. Section 1B1.7 provides:

The Commentary that accompanies the guideline sections may serve a number of purposes. First, it may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal. See 18 U.S.C. § 3742. Second, the commentary may suggest circumstances which, in the view of the Commission, may warrant departure from the guidelines. Such commentary is to be treated as the legal equivalent of a policy statement. Finally, the commentary may provide background information, including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline. As with a policy statement, such commentary may provide guidance in assessing the reasonableness of any departure from the guidelines.

The Commentary which precedes the foregoing explains that "courts likely will look to the commentary for guidance as an indication of the intent of those who wrote them. In such instances, the courts will treat the commentary much like legislative history or other legal material that helps determine the intent of a drafter." The parties have drawn a parallel between interpreting a congressional enactment and interpreting the Sentencing Commission's Guidelines. We agree that the same principles may properly be invoked. Here, however, we find little assistance in Section 3B1.l's commentary.³

Section 3B1.1(c) stands without ref.-erence to commentary. Where resolution of a question of federal law turns on a statute and the intention of Congress, the courts look first to the statutory language and then to the legislative history if the statutory language is unclear. See Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547-48, 79 L.Ed.2d 891 (1984). As the Court in Russello aptly stated, "[w]e refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship." Russello, 464 U.S. at 23, 104 S.Ct. at 300. There is no need to conclude that the Sentencing Commission overlooked “participant” in drafting subsection (c).

The simplest answer is that guideline commentary is not a substitute for the provisions themselves. As stated in Res-tregó, at 1296, “we construe the terms in the Sentencing Guidelines using their plain meaning.” Under that directive, appellant was a “leader.” (This term, along with numerous others, is not defined in the Guidelines.)

The Supreme Court has cautioned that the literal reading of a statute should not be employed when it would lead to an absurd result or thwart the obvious purpose of the statute. Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 643, 98 S.Ct. 2053, 2061, 56 L.Ed.2d 591 (1978). Appellant contends that failure to incorporate the “participant” requirement into subsection (c) could lead to results clearly unintended by the Commission. If a defendant, for example, takes a hostage to help effect an escape, the hostage would be under the supervision of a defendant who would thereby become eligible for a two-level increase under subsection (c). We suggest he might more likely be eligible for separate prosecution for the offense of kidnapping, which would adequately account for such conduct. Sentencing Guidelines Manual, Section 2A4.1. We may assert, without undue confidence, that sentencing judges will be able to discern a victim from one duped into criminal activity.

Seemingly, it is the construction urged by appellant which would lead to undesirable results. Defendant, by recruiting Hambley as the get-away driver for the bank robbery, escalated the risk of additional undesirable consequences. To disregard appellant’s role in involving a second person to assist in the crime’s effectuation is to deny the purposes of sentencing: deterring crime, incapacitating the offender, and providing just punishment, inter alia, 18 U.S.G. § 3553(a).

IV.

CONCLUSION

The co-defendant’s lack of knowledge of appellant’s act of robbery should be of no significance to a determination that appellant was a leader under Section 3Bl.l(c). The intent and conduct of appellant must be the object of scrutiny. Appellant duped Hambley into assisting his robbery of the Security Pacific Bank. Appellant gave Hambley specific instructions and planned their conduct throughout the course of the enterprise. Appellant’s leadership role in this bank robbery is a proper consideration in sentencing pursuant to Section 3B1.1.

The Judgment of the District Court is affirmed.

1 . Appellant conditioned his plea on imposition of a sentence not in excess of thirty-three (33) months, the lowest sentence under offense level twenty (20) with a criminal history category of I. At oral argument, appellant’s counsel confirmed that Anderson elected not to withdraw his plea and has waived his right to do so pursuant to the conditional plea agreement.

2 . The total offense level was calculated as follows: Base offense level of eighteen (18), pursuant to Section 2B3.1(a) of the guidelines; an additional four (4) points under Section 2B3.-1(b) for specific offense characteristics; two (2) points for appellant’s leadership role in the offense, pursuant to Section 3Bl.l(c); minus a two (2) point reduction for acceptance of responsibility, Section 3El.l(a).

3 . The application note discussing "otherwise extensive" does show that "all persons involved during the course of the entire offense are to be considered." The acts of those who are duped-"unknowing services of many outsiders"-may be considered even if only three participants are involved in a fraud.

Thus, even subsections (a) and (b) do not require any number of stated "participants" where enhancement is based on otherwise extensive criminal activity. If involving dupes can be the basis for added offense levels in (a) and (b), there is no reason to exclude consideration of involving such a person under (c).