UNITED STATES of America, Plaintiff-Appellee, v. Kim LIPSEY, Defendant-Appellant

Kim Lipsey appeals his sentence under the Sentencing Guidelines following his guilty plea conviction for armed bank robbery. He argues that a two-level enhancement pursuant to USSG § 3C1.2 for reckless endangerment and a five-level enhancement pursuant to § 2B3.1(b)(2)(C) for brandishing a weapon were clearly erroneous. He also argues that the district court’s refusal to grant him release pending sentencing violated his constitutional rights. We vacate and remand.

BACKGROUND FACTS

On December 16, 1993, Kim Lipsey, Eric Lemar Smith, and Damon Dannious Wilson drove from Los Angeles to Burbank, California, in a stolen Hyundai. They followed three persons known to Lipsey as “Dexter,” “Stanley,” and “Shyster.” When the ears got to Burbank, Smith got into the car with Dexter, Stanley, and Shyster and drove away, leaving Lipsey and Wilson in the Hyundai. When Smith returned, he got back in the Hyundai and both cars drove to the Lockheed Federal Credit Union. In the parking lot, Shyster handed a gun to Smith and a pillowcase to Lipsey and informed Lipsey that they were going to rob the credit union. When Lipsey objected to this plan, Shyster pulled back his jacket, revealing another…