United States v. McCormick
2014 U.S. App. LEXIS 23203
| 1st Cir. | 2014Background
- In January 2013 Stephanie McCormick and Anthony Post decided to rob a CVS pharmacy to get oxycodone; McCormick recruited Candice Eaton to drive.
- During the robbery Post presented a note threatening to shoot; Post returned with bottles of pills and McCormick transferred pills into a CVS bag in view of Eaton and a minor, C.P.
- Eaton drove the getaway car, stopped at McCormick's directions, and later received a share of the stolen pills; she pleaded guilty to being an accessory after the fact.
- McCormick pleaded guilty to aiding and abetting Hobbs Act robbery and disputed a two-level USSG §3B1.1(c) enhancement (organizer/leader/manager/supervisor) proposed by the PSR and adopted by the district court.
- The district court held a hearing, found McCormick had organized the enterprise, controlled Post and Eaton, recruited Eaton and C.P., and exercised leadership over Eaton, and imposed the two-level enhancement, increasing her GSR from 33–41 to 41–51 months; sentence 46 months.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McCormick warranted a two-level USSG §3B1.1(c) role enhancement for leading/organizing/supervising at least one other participant | Government: Eaton was a knowing participant (getaway driver, received share) and acted under McCormick’s direction, satisfying the enhancement | McCormick: Eaton was not a culpable participant and, even if she was, McCormick did not supervise or lead Eaton | Court affirmed: Eaton’s conduct (accessory after the fact, drove and split spoils under McCormick’s directions) made her a participant and McCormick’s control justified the §3B1.1(c) enhancement |
Key Cases Cited
- Tejada-Beltran v. United States, 50 F.3d 105 (1st Cir.) (government bears burden to prove enhancements by preponderance)
- Paneto v. United States, 661 F.3d 709 (1st Cir.) (standard of review: factual findings for clear error; legal questions de novo)
- Ruiz v. United States, 905 F.2d 499 (1st Cir.) (when facts permit competing inferences, sentencing court’s choice not clearly erroneous)
- Cruz v. United States, 120 F.3d 1 (1st Cir. en banc) (elements for §3B1.1 enhancement: at least two participants and defendant exercised control over at least one other)
- Sanchez v. United States, 354 F.3d 70 (1st Cir.) (aiding/abetting and accomplice liability principles)
- Neal v. United States, 36 F.3d 1190 (1st Cir.) (participant liability for assistance in crimes)
- Hall v. United States, 101 F.3d 1174 (7th Cir.) (knowingly assisting can make one an accessory and participant)
- Lewis v. United States, 68 F.3d 987 (6th Cir.) (accessory-after-the-fact participation supports liability)
- Bennett v. United States, [citation="143 F. App'x 200"] (11th Cir.) (accessory involvement sufficient for §3B1.1 participant finding)
- Boutte v. United States, 13 F.3d 855 (5th Cir.) (accessory conduct treated as participation for sentencing adjustments)