United States v. Alex Good Rider

FILED
JUL 19 2010
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30316
Plaintiff - Appellee, D.C. No. 4:09-cr-00011-SEH-1
v.
MEMORANDUM *
ALEX CHARLES GOOD RIDER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Charles Alex Good Rider appeals from the 24-month sentence imposed
following his guilty-plea conviction for conspiracy to commit theft and theft from
an Indian Tribal Organization, in violation of 18 U.S.C. §§ 371 and 1163. 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).
have jurisdiction under 28 U.S.C. § 1291, and we vacate the sentence and remand
for resentencing.
Good Rider contends that the district court erred by applying sentence
enhancements pursuant to U.S.S.G. §§ 3B1.1(a) and 3B1.3. While acknowledging
that he may be more culpable than some of his co-conspirators, Good Rider argues
that he was not a leader or organizer of the criminal enterprise for purposes of
U.S.S.G. § 3B1.1(a). Good Rider further contends that his position as a low-level
staff employee at the Blackfeet Tribal Credit Department was not a position of
trust, and thus that the district court improperly applied the abuse of trust
enhancement under U.S.S.G. § 3B1.3. We review “the district court's
interpretation of the Sentencing Guidelines de novo . . . and the district court's
factual findings for clear error.” United States v. Kimbrew, 406 F.3d 1149, 1151
(9th Cir. 2005)
As Good Rider recruited fake borrowers into a fraudulent loan scheme,
acquired a greater share of profits, and was instrumental in stealing checks, forging
checks, and destroying evidence of fraudulent loans, his admitted behavior
comports with Application Note 4 to U.S.S.G. § 3B1.1, and the application of the
leader or organizer enhancement is appropriate. See United States v. Garcia, 497
F.3d 964, 970 (9th Cir. 2007).
2
The district court applied the then-applicable “abuse of trust” enhancement
under United States v. Hill, 915 F.2d 502 (9th Cir. 1990). The court did not have
the benefit of our later decision in United States v. Contreras, 581 F.3d 1163 (9th
Cir. 2009), opinion adopted in part and vacated in part en banc, 593 F.3d 1135(9th Cir. 2010). There, we held that, pursuant to Application Note 1 of U.S.S.G. §
3B1.3, the enhancement is appropriate only if the defendant has “professional or
managerial discretion,” such that the defendant “because of his or her special
knowledge, expertise, or managerial authority, is trusted to exercise substantial
discretionary judgment that is ordinarily given considerable deference.” Id. at 1168
n.5 (internal citations and quotations omitted). We therefore vacate the sentence
and remand to the district court for reconsideration of the “abuse of trust”
enhancement in light of Contreras, on an open record. See United States v.
Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (allowing government to introduce
new evidence on resentencing).
SENTENCE VACATED AND REMANDED.
3