United States v. Carl Von Bradley

FILED
NOT FOR PUBLICATION APR 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10200
Plaintiff - Appellee, D.C. No. 2:09-cr-00185-PMP-
LRL-1
v.
CARL VON BRADLEY a.k.a CARL MEMORANDUM *
VON BROOKS
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted April 5, 2011 **
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
Carl Von Bradley appeals from the 110-month sentence imposed following
his guilty-plea conviction for bank robbery and aiding and abetting, in violation of
18 U.S.C. §§ 2113(a) and 2. We have jurisdiction under 28 U.S.C. § 1291, and we
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
affirm.
Bradley contends that the district court erred by applying a five-level
enhancement under U.S.S.G. § 2B3.1(b)(2)(C) for brandishing or possessing a
firearm during the offense. He argues that: (i) the district court applied an
incorrect standard of proof when it found that the enhancement applied; (ii) there
was insufficient evidence to support a finding that a firearm was possessed during
the robbery; and (iii) the district court improperly inferred that possession was
foreseeable.
The record reflects that the district court determined the enhancement was
supported by both a preponderance of the evidence and clear and convincing
evidence. Accordingly, the evidence was sufficient to support the enhancement.
See United States v. Pike, 473 F.3d 1053, 1057 (9th Cir. 2007) (clear and
convincing standard of proof applies only when an enhancement has an extremely
disproportionate effect on the sentence). The record further reflects that the district
court did not clearly err in determining that it was reasonably foreseeable for a co-
conspirator to possess a firearm during the robbery. See United States v. Willis,
899 F.2d 873, 875 (9th Cir. 1990).
AFFIRMED.
2 10-10200