United States v. James K. Gardner

38 F.3d 1219 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. James K. GARDNER, Defendant-Appellant. No. 93-50584. United States Court of Appeals, Ninth Circuit. Submitted Oct. 17, 1994. * Decided Oct. 21, 1994. Before: BROWNING, FARRIS and LEAVY, Circuit Judges. 1 MEMORANDUM ** 2 James K. Gardner appeals his sentence of 147 months imposed following this court's vacation of his original sentence of 147 months in a prior appeal. Gardner was convicted by jury of unarmed bank robbery ( 18 U.S.C. Sec. 2113 (a)), armed bank robbery ( 18 U.S.C. Sec. 2113 (a) & (d)) and use of a firearm during and in relation to a crime of violence ( 18 U.S.C. Sec. 924 (c)). This court reversed Gardner's sentence and remanded when it found that the court below failed to consider the mens rea requirement inherent in a finding of obstruction of justice under U.S.S.G. 3C1.1. See United States v. Gardner, 988 F.2d 82, 83 (9th Cir.1993). On remand…