United States v. Randall Dennis Furlow

HEANEY, Senior Circuit Judge.

Randall Dennis Furlow appeals his guidelines sentence. He argues that the district court erred in finding that he was an organizer or leader of criminal activity and in denying him an acceptance of responsibility reduction. For the reasons stated below, we remand for resentencing.

BACKGROUND

On April 23, 1990, Furlow pled guilty to each count of a three-count indictment charging him with violating 18 U.S.C. § 2113(b), the federal bank robbery statute. Each count charged Furlow with illegally obtaining $350 from a bank in Cape Girar-deau, Missouri. Subsequent to this plea and pursuant to section 6B1.4 of the sentencing guidelines, the government and Furlow stipulated that on December 9, 1988, Furlow passed seven forged checks, including the three that formed the basis for the indictment, at three different banks in the Cape Girardeau, Missouri area. The stipulation stated that Furlow had stolen blank checks from his former sister-in-law, forged seven of them, partially deposited the forged checks to accounts maintained by other individuals at the three banks, and requested that the remainder of the checks, $350 of each check, be given to him in cash. In the stipulation, Furlow also admitted to similar activity in nine other states by which Furlow obtained over $25,000 in cash.

Based on these facts, the district court found Furlow’s base offense level to be 4. The court then added 6 points pursuant to section 2Bl.l(b)(l)(G) for the $25,000 theft amount, added 2 points because the offense level involved more than minimal planning, and added 2 more points for Furlow’s role in the offense as an organizer or a leader. The court declined to credit Furlow for acceptance of responsibility, so his final offense level was 14. With a criminal history category of VI, Furlow’s guidelines range was 37 to 46 months, and the court imposed a 42-month sentence on August 17, 1990. Furlow appeals this sentence.

DISCUSSION

I. Organizer or Leader of Criminal Activity

Furlow contends that because he acted alone in forging the checks, the section 3B 1.1(c) enhancement for being an organizer or a leader was improper. The government counters that while the offenses for which Furlow was convicted did not involve other individuals, undisputed evidence shows that Furlow recruited another individual to perpetrate an identical fraud scheme in Georgia. Moreover, the government claims section lB1.3(a)(2) specifically provides that the aggravating role adjustment in 3B1.1 “shall be determined on the basis of ... all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G., § lB1.3(a)(2) (1991).

On November 1, 1990, this guideline was amended by the Introductory Commentary to Part B of Chapter Three of the guidelines. This amendment was not in effect on the date of Furlow’s sentencing. In this situation, we do not apply the amended guideline retroactively. See United States v. Dortch, 923 F.2d 629, 632 n. 2 (8th Cir.1991) (“Because appellant was sentenced before the effective date of the amendment, the 1990 amendment does not apply.”). Prior to this amendment and to Furlow’s sentencing, this circuit held “[sjection 3B1.1 is an enhancement for defendant’s role in the offense of the conviction, not his role in collateral conduct.” United States v. Streeter, 907 F.2d 781, 792 n. 4 (8th Cir.1990); see also United States v. Pettit, 903 F.2d 1336, 1341 (10th Cir.1990); United States v. Tetzlaff 896 F.2d 1071, 1074 (7th Cir.1990); United States v. Williams, 891 F.2d 921, 926 (D.C.Cir.1989). The district court therefore erred in applying the organizer/leader enhancement for Furlow’s conduct in Georgia.

II. Acceptance of Responsibility

Furlow also urges that the district court erred in not granting him a two-level reduction for acceptance of responsibility. In support of his argument, Furlow emphasizes that he pled guilty without the benefit of a plea agreement — the United States Attorney for the Eastern District of Missouri refuses to make sentencing agreements — and that he stipulated to conduct beyond that involved in the offenses of conviction. This uncharged conduct added three-levels to Furlow’s guidelines’ offense level, increasing his guidelines sentencing range from 27 to 33 months to 37 to 46 months. In addition to these facts, Furlow also notes that he waived his right to a removal hearing so that he could be brought to the Eastern District of Missouri to face the charges in this case.¹

At the sentencing hearing, the district court expressed its belief that “the law say[s] that the mere pleading guilty is not in itself sufficient to indicate acceptance of responsibility.” Our case law clearly holds to the contrary. See United States v. Knight, 905 F.2d 189, 192 (8th Cir.1990).

As we explained in United States v. Sklavenitis, 905 F.2d 1166, 1168 (8th Cir.1990), when “the district court appears to have concluded erroneously that the Guidelines tie the district court’s hands by prohibiting the [acceptance of responsibility] reduction unless the defendant does something in addition to pleading guilty, we remand for resentencing_” Accordingly, the district court should reconsider crediting Furlow with acceptance of responsibility. On remand, “the district court may find that the defendant’s guilty plea justified the two level reduction pursuant to section 3E1.1.” United States v. Knight, 905 F.2d at 192 (emphasis in original).

CONCLUSION

We vacate Randall Dennis Furlow’s sentence and remand this case to the district court for resentencing consistent with this opinion.

JOHN R. GIBSON, Circuit Judge,

1 . Furlow had been arrested in Mississippi on state charges when federal authorities gained custody over him.