United States of America, Appellee, v. Gary Allen Reichow, Appellant.
No. 04-1854
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: November 18, 2004; Filed: August 5, 2005
United States Court of Appeals FOR THE EIGHTH CIRCUIT
SMITH, Circuit Judge.
Gary Allen Reichow pleaded guilty to one count of armed bank robbery and one count of discharging a firearm in relation to a crime of violence. He was sentenced to consecutive sentences of 144 months’ imprisonment on count one and 120 months’ imprisonment on count two. In addition, Reichow was ordered to pay restitution
I. Background
Reichow, wearing a black mask and a bullet proof jacket, robbed the Farmer‘s State Bank of Hartland, Minnesota, with a fully-loaded semiautomatic AK-47 rifle. The AK-47 contained a 30-round magazine, which had a second fully-loaded magazine taped to the rifle. Reichow had three more loaded magazines in a bandolier that he was wearing. Reichow shot the rifle twice outside of the bank building and fired at the ceiling after entering the building, announcing the bank was being robbed.
Upon entry, Reichow ordered Janice Beach, the bank‘s vice president, to empty the teller drawers. She did so and Reichow took $9,639.00 and fled in his Volkswagen Jetta. A utility company employee who was outside of the bank followed Reichow in his car and told police the location and a description of the Jetta. Deputy Golbuff spotted Reichow‘s car and followed him to a field. Before Deputy Golbuff could exit his squad car, Reichow fired several rounds into it. Deputy Golbuff returned fire and struck Reichow in the neck. Deputy Golbuff was also injured in the exchange. When backup arrived, Reichow fired a number of rounds into that squad car as well and then fled into some nearby woods. Sheriff Harig, who had also arrived on the scene, used a PA system to ask Reichow to surrender, and, fortunately, he did. A subsequent search of the scene revealed 42 shell casings of the same caliber as Reichow‘s rifle. The stolen money was also recovered.
Reichow was indicted on one count of armed bank robbery in violation of
II. Discussion
A. Restitution for Damage to the Sheriff‘s Property and Medical Bills for the Sheriff‘s Deputy
Reichow argues the Mandatory Victims Restitution Act (MVRA),
Under MVRA, a district court sentencing a defendant for committing a crime of violence, shall order restitution in addition to any other penalty.
Reichow‘s argument centers on the language of
In a case with similar facts but applying different law, the Seventh Circuit in United States v. Donaby, 349 F.3d 1046, 1051–55 (7th Cir. 2003), addressed the proximate cause issue. Donaby involved damage to a police vehicle during a getaway, but involved the Victim and Witness Protection Act (VWPA),
B. Restitution for Psychological Counseling for Bank Employees
Reichow also argues that the district court can only order restitution if the offense resulted in bodily injury to a victim,
(2) in the case of an offense resulting in bodily injury to a victim including an offense under chapter 109A or chapter 110--
(A) pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance
with a method of healing recognized by the law of the place of treatment;
(Emphasis added).
The plain language of
C. Sentence Enhancement for Official Victim
At sentencing, Reichow objected to a three-level enhancement under
Double counting occurs where “one part of the Guidelines is applied to increase a defendant‘s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the Guidelines.” United States v. Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997). Double counting is permitted where “(1) the Commission intended the result and (2) each statutory section concerns conceptually separate notions relating to sentencing.” Id. at 583. The facts of this case meet both requirements for permissible double counting.
It is clear that the Commission intended double counting in some cases:
Absent an instruction to the contrary, enhancements under Chapter Two, adjustments under Chapter Three and determinations under Chapter Four are to be applied cumulatively. In some cases, such enhancement, adjustments, and determinations may be triggered by the same conduct. For example, shooting a police officer during the commission of a robbery may warrant an injury enhancement under § 2B3.1(b)(3) and an official victim adjustment under 3A1.2, even though the enhancement and the adjustment are both triggered by the shooting of an officer.
D. Booker Issues
For the first time in a supplemental brief, Reichow argues that at sentencing, the district court‘s sentence is unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004). Blakely invalidated the State of Washington‘s mandatory Sentencing Guidelines. The court held, consistent with Apprendi, that sentence-enhancement fact findings should be admitted by the defendant or determined by the jury and not
Since the filing of the briefs, the Supreme Court has resolved the questions raised by Blakely regarding the Federal Sentencing Guidelines continuing validity and given lower courts guidance on their proper use. United States v. Booker, 125 S. Ct. 738 (2005). In Booker, the Court made the mandatory federal Guidelines effectively advisory and thus corrected the defect that rendered them unconstitutional under the Sixth Amendment. Id. However, because Reichow failed to raise a Sixth Amendment argument below, we review for plain error. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005).
Under Pirani, plain error can only be shown by satisfying all of the elements set forth by the Supreme Court in United States v. Olano, 507 U.S. 725, 732 (1993). Pirani, 406 F.3d at 550. Because the district court treated the Guidelines as mandatory, we find error that is plain. Id. However, Olano also requires Reichow to establish by a reasonable probability that upon remand, he would obtain a more favorable sentence. Id. Based upon the record, we hold that Reichow cannot make such a showing. Nothing in the record shows even a slight inclination by the trial judge to impose a more lenient sentence in the absence of mandatory guidelines. Therefore the sentence imposed by the district court stands.
Lastly, we find no merit in Reichow‘s contention, that the restitution order also violated Blakely. Reichow cites no authority for the proposition that MVRA suffers from any constitutional infirmity addressed by the Court in Booker. In fact, courts have squarely addressed this issue and found Sixth Amendment arguments unavailing in the context of restitution orders. United States v. George, 403 F.3d 470, 473 (7th Cir. 2005); United States v. Trala, 386 F.3d 536, 547 n.15 (3d Cir. 2004); United States v. DeGeorge, 380 F.3d 1203, 1221 (9th Cir. 2004); United States v. Wooten, 377 F.3d 1134, 1144 n.1 (10th Cir. 2004); United States v. Syme, 276 F.3d 131, 159 (3d Cir. 2002); United States v. Bearden, 274 F.3d 1031, 1042 (6th Cir. 2001); United States v. Behrman, 235 F.3d 1049, 1054 (7th Cir. 2000).1 Reichow does point to authority in our circuit that a restitution order under the MVRA is a criminal penalty. United States v. Williams, 128 F.3d 1239, 1241 (8th Cir. 1997). Because the issue in Williams was whether restitution under MVRA was an ex post facto violation, our language regarding restitution as a penalty established no controlling precedent.
MVRA sets no limit on restitution but requires it to be ordered “in the full amount” of victim loss.