United States v. Earl Thomas Anderson

895 F.2d 641 UNITED STATES of America, Plaintiff-Appellee, v. Earl Thomas ANDERSON, Defendant-Appellant. No. 89-10059. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 15, 1989. Decided Feb. 8, 1990. 1 Robert M. Holley, Asst. Federal Defender, Sacramento, Cal., for defendant-appellant. 2 Daniel S. Linhardt, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee. 3 Appeal from the United States District Court for the Eastern District of California. 4 Before WIGGINS and KOZINSKI, Circuit Judges, and STOTLER, * District Judge. STOTLER, District Judge: 5 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 3B1.1(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 3B1.1(c) is appropriate in this case. I.…

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…

dissenting:

The majority makes a fundamental analytical error by treating the Commentary to the Sentencing Guidelines as a secondary aid to interpretation, akin to legislative history, rather than as an integral part of the Guidelines themselves. The difference is outcome-determinative in this case, as it probably will be in many other cases. I fear that the majority opinion takes this circuit down the wrong track, a track different from that taken by the other circuits that have considered the issue.

I

The majority reads Sentencing Guidelines § 3Bl.l(c) as calling for a two-step increase in offense level for Anderson’s role as an “organizer, leader, manager, or supervisor” in a “criminal activity,” where the only person over whom he had any control was duped and therefore lacked criminal responsibility. The majority acknowledges that this reading is at odds with the Introductory Commentary to section 3B1.1, which limits the application of that section to offenses committed by more than one “participant.” Majority op at 644. “Participant” is itself defined in the Application Notes to that section as one who is “criminally responsible for the commission of the offense.” The…