United States v. Kirkhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 4 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-3259
v.
(D.C. No. 95-10105-02)
(District of Kansas)
WILBUR E. KIRKHART II,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, PORFILIO, and MURPHY, Circuit Judges.
The parties having agreed oral argument is not necessary, this case is submitted on
the briefs. Fed. R. App. P. 34(f).
Wilbur E. Kirkhart II pled guilty to one count of armed bank robbery. 18 U.S.C.
§ 2113(a)(d). The evidence set forth in the presentence report indicated Mr. Kirkhart’s
codefendant entered the bank and brandished a long barrel shoulder weapon and took
$10,245 of the bank’s funds. Apprehended later, Mr. Kirkhart admitted he aided the
codefendant in his ultimate escape, but it was not until after the crime was committed,
*
This order and judgment is not binding precedent, except under the doctrines of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.
when he saw the codefendant’s weapon for the first time, that he became aware a firearm
was to be used in the offense. He therefore contends he was not subject to a sentence
enhancement under U.S.S.G. § 2B3.1(b)(2)(c) because he neither knew nor had reason to
foresee a firearm would be used during the robbery.
It is agreed by the government there is no evidence to contradict Mr. Kirkhart’s
statement; therefore, the issue before us is whether there is a factual basis that would
sustain the enhancement employed by the sentencing court. We believe there is.
We begin with the provisions of § 1B1.3(a)(1)(B) which states, in a “jointly
undertaken criminal activity” all “reasonably foreseeable acts . . . of others in furtherance
of the jointly undertaken criminal activity” shall be taken into account in determining the
specific offense characteristics. Here, the district court employed guideline
§ 2B3.1(b)(2)(C), brandishing a firearm, as a specific offense characteristic to be applied
to the sentence. Taking into conduct the brandishing by the codefendant, the court
applied a five-level enhancement.
Defendant claims there is simply no evidence the use of a firearm by his
codefendant was reasonably foreseeable. He admits the firearm was brandished, but
contends the lack of any evidence of his prior knowledge of that fact removes him from
the reach of the enhancement.
We believe this argument overlooks the nature of the plea in this case. Mr.
Kirkhart’s plea to armed bank robbery was an admission of “both the acts described in the
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indictment and the legal consequences of those acts.” United States v. Allen, 24 F.3d
1180, 1183 (10th Cir. 1994) (citing United States v. Broce, 488 U.S. 563, 569-70 (1989)).
Also see United States v. Wilks, 58 F.3d 1518, 1523 (10th Cir 1995). As a consequence
of his guilty plea, Mr. Kirkhart necessarily admitted the robbery was committed with a
firearm. That admission subsumes his knowledge or his reason to know a weapon was to
be used. He therefore also admitted to a factual basis for the district court’s finding of
relevant conduct. Having done so, he cannot avoid the legal consequence of those
admissions which, in this instance, is the five-level enhancement. See United States v.
Lipsey, 62 F.3d 1134, 1136 (9th Cir. 1995).
AFFIRMED.
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
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