United States v. Vince Albert Napier

Vince Albert Napier appeals his 88-month sentence following entry of a guilty plea to armed bank robbery in violation of 18 U.S.C. § 2113 (a), (d). Napier contends that the district court erred when it calculated his offense level by interpreting “loss” under U.S.S.G. § 2B3.1(b)(6) as the amount of money taken during the robbery. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

We review de novo the district court’s application of the Sentencing Guidelines. United States v. Foreman, 926 F.2d 792, 795 (9th Cir.1990).

Under the Sentencing Guidelines, a defendant’s offense shall be increased by one level when the loss from the robbery exceeded $10,000. U.S.S.G. § 2B3.1(b)(6). “ ‘Loss’ means the value of the property taken, damaged or destroyed.” U.S.S.G. § 2B1.1, comment. (n. 2). When the defendant is apprehended in the process of the robbery, the amount of the loss can mean the potential loss had he not been apprehended. See United States v. Van Boom, 961 F.2d 145, 146 (9th Cir.1992) (attempted extortion punished as though completed for purposes of loss valuation); see also United States v. Westmoreland, 911 F.2d 398, 399 (10th Cir.1990) (“fortuitous recovery” of property…