United States v. Russell Grozier Bishop

concurring:

The reversal of this sentence in this case illustrates the folly of the Sentencing Guideline scheme. Any layman would recognize instantly that this defendant is a career criminal. He was convicted of discrete crimes, and he picks up a windfall because two separate crimes were combined for processing in the state courts. I concur only because the result is compelled by Martinez.

Russell Bishop appeals his convictions for bank robbery and for conspiracy to commit bank robbery. He also challenges his classification as a career offender for purposes of sentencing. We affirm his convictions, but vacate his sentence and remand for resen-tencing.

I

Bishop argues that the district court abused its discretion in admitting evidence that he committed an earlier, unrelated bank robbery. He argues (1) that this evidence was inadmissible under Rule 404(b) because it was offered merely to prove his criminal disposition; and (2) that the district court admitted this evidence without making explicit findings concerning the balance of factors under Rule 403. Although both of these arguments would deserve scrutiny in an appropriate case, we need not reach them in this case. If the admission of this evidence was error, it was harmless error.

The case against Bishop was overwhelming. He was identified at trial by the bank teller and by a bank patron who pursued the robber out the front door. In addition, Bishop’s mother and brother both identified him from a bank surveillance photograph taken during the robbery. Finally, an FBI agent testified that Bishop had confessed to…

1 F.3d 910 UNITED STATES of America, Plaintiff-Appellee, v. Russell Grozier BISHOP, Defendant-Appellant. No. 92-10413. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 14, 1993. Decided Aug. 3, 1993. John G. Bogart, Tucson, AZ, for defendant-appellant. Claire K. Lefkowitz, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before: GOODWIN, NORRIS, and RYMER, Circuit Judges. WILLIAM A. NORRIS, Circuit Judge: 1 Russell Bishop appeals his convictions for bank robbery and for conspiracy to commit bank robbery. He also challenges his classification as a career offender for purposes of sentencing. We affirm his convictions, but vacate his sentence and remand for resentencing. 2 * Bishop argues that the district court abused its discretion in admitting evidence that he committed an earlier, unrelated bank robbery. He argues (1) that this evidence was inadmissible under Rule 404(b) because it was offered merely to prove his criminal disposition; and (2) that the district court admitted this evidence without making explicit findings concerning the balance of factors under Rule 403. Although…