*1 America, UNITED STATES
Plaintiff-Appellee, KIMMONS, Small,
William Howard
Defendants-Appellants. America,
UNITED STATES of
Plaintiff-Appellee, BERTA,
Bruce Lee Defendants
Appellant. 90-5413,
Nos. 90-5432.
United Appeals, States Court of
Eleventh Circuit.
July *2 Dе- Public Sakowitz, Federal J. Theodore Prebish, Marie Alison A.
fender, Gregory Defenders, Mia- Public Federal Asst. Igoe, Fla., Small. mi, Speiller, Miami, Fla., Kenneth P. day, van, next a white precisely Kimmons. matching description provided by the anonymous source, deliberately drove Lehtinen, Dexter W. Atty., Frank H. through the parking lot of the Coral Gables Tamen, Lynne Lamprecht, W. Linda C. *3 Federal Savings & Loan on Bird Road mo- Hertz, Attys., Miami, Fla., Asst. U.S. for ments after a Wells Fargo armored car had arrived to deliver cash to the bank. The Henry Miami, Fla., M. Bugay, for Berta. registered van was to William Kimmons.
Having been warned the FBI of the threat, Fargo Wells had conspicuously placed guards extra shotguns with on their FAY, Judge, Before Circuit DYER and armored cars. The white van away. turned *, CLARK Judges. Senior Circuit In afternoon, mid again the van drove FAY, Judge: through Circuit parking lot of the bank. It then circled around the block of a second In this appeal, consolidated William Kim- brаnch of bank Coral Gables Federal Sav- mons, Small, Howard and Bruce Lee Berta ings & Loan. In the afternoon, late challenge the application district court’s of spotted FBI the van at the Town & Coun- the United Sentencing Guidelines. Mall, try Special where Agent Robert Ka- addition, In Small and Kimmons raise minski observed Kimmons and Howard concerning claims validity of their con- van, Small exit the Kimmons enter the appellants victions. The were charged mall, and Small stand the parking lot of to affect commerce by rob- the CenTrust branch roughly bank for ten bery of companies, armored car in violation minutes. 1951(a), of 18 U.S.C. and with related following The day, June firearms jury offenses. A convicted Kim- Special Agent Peter Schopperle observed counts, and Small mons on all and each Small sitting at the entrance of the Las imprisonment life received with additional shopping Americas center on Way. Coral concurrent separate sentences. In a pro- Small at stayed the mall approximately ceeding, pled guilty Berta pertinent to all hours, five intermittently surveying the counts of the indictment and received a stores, traffic that entered the making calls of sentence 123 months. We AFFIRM the pay phone, walking to a turnpike challenged convictions and the sentences overpass mall, that overlooked the and imposed the district court on each defen- watching the Fargo arrivals of a Wells dant. at a Department car Woolworth’s I. BACKGROUND Store and Brinks armored car at Ocean Bank Flagler and Bank mall branches. 21, 1989, On June anonymous source notified the Bureau Investiga- Federal weeks, Over the next five the FBI ob- (FBI) tion that certain unidentified individu- served repeatedly the defendants return to intended to als rob an armored car near the Lаs 26th, Americas mall. On June Road in Bird the southwest section of Mia- Kimmons and Small arrived at the mall robbery mi. The would be shortly committed Fargo before a Wells armored car driving men a white van with a boomerang- store; delivered cash to a Woolworth’s shaped television antenna on the they roof. the delivery watched from the side- response tip, to the the FBI mall, established a walk standing opposite at sides loose surveillance of several financial 3rd, insti- of the July armored car. On Small tutions the area. The FBI ascertained and again mall, Kimmons arrived at the routes delivery and stops of armored approximately one minute prior to the ar- vicinity cars and watched for un- rival a Wells armored car. activity. usual watched the armored car’s activities at the * 34-2(b), Rule Appeals See Rules the U.S. Court of Eleventh Circuit. however, moment, At same mall. minutes fifteen approximately left mall and wandered child had a small woman ten at least On departed. car
after store so department Zayre front of at arrived the defendants occasions more Small a carousel. play on could the child of observ- purpose solely for the the mall away, yards than ten were less Berta traf- mall cars, patrols, police ing armored the arrival parked car for in their escape poised lot, potential fic, parking Stephen Agent Special the armored routes. manager immediately directed Warner to a defendants FBI tracked and child the mother to invite Zayre’s 35th 12350 S.W. story residence single sale,” in “pre-opening for a store into the rented had Miami. Street of innocents prospect to avoid order *4 Bruce continuously since residence in a crossfire. caught and Kimmons joined Berta, had who Lee car later, pulled as the Loomis mall, Seconds had at the activities their Small Weapon Tactic and Special Zayre’s, of front lived and Kimmons a room subleased converged Small on rapidly agents (SWAT) girlfriend. his with the residence at of the out them ordered Berta and of and course 1989, during the July of June and and arrested They were Aspen. Dodge the also used activity, Small joint their Berta, next to the seat On handcuffed. residence. his house twelve-gauge a sawed-off found agents the FBI observed the July On buck- five rounds of with loaded shotgun robbery. the actual prepare for defendants chamber in the shot, including a round Town Lincoln parked a had The defendants backseat, the the floor of shotgun. On the the next to Zayre store aof front car in super .38 loaded Colt fully a agents found car armored Loomis a through which door mask, and ski a black pistol, automatic At cash. lеft and messenger entered gloves. stolen drove a Small a.m., and Berta 8:50 Kimmons’ then surrounded agents FBI residence from Kimmons’ Aspen Dodge house, of his out residence, him ordered in a Cad- followed mall, Kimmons and the Agents con- arrest. mall, him under placed and Once by Berta. illac owned of the sweep security protective a it out ducted drove and Lincoln entered Small found, inside a and residence inside same Dodge into the pulled Berta while semi-automatic closet, Mini-14 Ruger hall his Cadillac remained Kimmons space. magazine taped, double rifle with lanes assault parking down up and and drove of ammunition. sixty rounds loaded with home. returning before Zayre’s front of warnings at giving Miranda Lin- After in the Small Meanwhile, joined Berta head- to FBI scene, took Kimmons agents Turnpike Florida up on the drove coln and quarters. store. Zayre directly behind road of the the berm the Lincoln his parked Kimmons again read Agent Warner said in the window sign hung a his and he understood said Kimmons rights. Shortly,” al- Return Gas—Will a state- make “Out not he rights and that would more actually gas attorney. tank though his spoke with he until ment re- full. questions than half discontinued Agent Warner that he told case but slope garding down walked and Small Berta search concerning a cooperation his desired por- the back entered and turnpike of the Kim- read Warner After residence. gap in a narrow through mall tion of form, Kimmons a “consent-to-search” to mons They walked Zayre’s. behind the fence was inevitable warrant search that a stated entered and Aspen parked form. signed and read and seat driver’s in the sat Berta re- down and ducked Small sev- newspaper. uncovered the residence A search Ber- seat. in the back sight fully out including mained a modified weapons, eral repeatedly. pistol, watch his checked ta Intratech millimeter nine automatic silencers, .38 magazine, two thirty-round a.m., a Loomis 9:25 approximately At ammunition, a automatic super caliber Americas the Las approached car Mossberg twelve-gauge shotgun, another current twenty sentences: years each for rifle, Ruger shells, shotgun II, assault various Counts I years five V, on Count portable police two imprisonment radio scanners. life on Count VII. Kimmons weapons The serial numbers on the had received similar concurrent sentences: partially Receipts twenty been obliterated. found years each for II, Counts I and five in Kimmons’ bedroom VI, showed that three of years on Count and life imprisonment weapons purchased by had been Kim- on Count VIII. girlfriend, mons’ Rodriguez. Barbara II. DISCUSSION 31, 1989, On grand October a federal appellants-defendants raise several
jury returned a superseding indictment issues regarding the validity of their con- against the defendants. charged Count I victions and the district application three all defendants with to af- the Sentencing Guidelines. We turn fect commerce robbery of armored car first arguments two requiring more companies, in Act, violation of the Hobbs comment, careful briefly and then address 1951(a). 18 U.S.C. II charged Count remaining claims. attempting them with affect commerce *5 robbery employees by Conspiracy of Loomis Ar- Count Sentence Enhance- mored, Inc., in ment violation of 18 U.S.C. 2§§ 1951(a). charged Count III Berta with Appellant challenges Berta the dis
possession
shotgun
of a short-barrelled
trict
application
of a conspiracy
number,
no serial
in
with
violation of 26 count sentence enhancement under Guide
5861(h)
U.S.C.
and 5871. Count IV
§
lB1.2(d)1
line
as a violation of the
§
ex
charged
carrying
Berta with
Mossberg
post
prohibition.
facto
The Guideline sec
twelve-gauge shotgun during a federal
tion was not in effect at the time of the
violence,
crime of
violation
18 U.S.C. offense, although it had been
by
added
924(c)(1).
charged
Count V
Small with
§
sentencing.2
time of
Berta asserts that
carrying
pistol
a Colt
during a federal
lB1.2(d) operated retrospectively and dis
§
violence,
crime
violation of 18 U.S.C. advantaged
by requiring
him
an increase of
924(c)(1).
charged
Count VI
§
level,
three units above the base offense
possession of a
silencer
violation of
violating
thus
the ex post facto clause of
5861(d)
Const,
26 U.S.C.
and 5871. Count VII
§§
Constitution,
I,
art.
cl.
§
charged Small with violation of the Armed
Florida,
See
3.
Miller v.
482 U.S.
Act,
Career
922(g)(1).
Criminal
18 U.S.C.
§
(1987) (Florida
S.Ct.
at 1414. He remaining charges of a that would constitute behavior charge and at 1415. district court Id. nature. dismissed. substantive guilty plea up- adjusted the defendant’s lB1.2(d) short, en- Guidelines § under Guideline two levels wards clarifying purpose acted for sole [sic] here, Although, as 1B1.2. at 1416. Id. § procedure, no existing and therefore then adopted after the defendant’s 1B1.2 was legitimately post can ex facto concerns offense, court dismissed the be raised. argument post facto be- defendant’s ex omitted). (footnotes Id. at 1417-18 was not a “substantive” 1B1.2 cause § law, explana- simply change but agree with the Seventh Circuit and We of the Guidelines of the “intentions argument tion post appellant’s find the ex facto drafters.” Id. expressed in for the reasons without merit Golden. affirmed, stating
The Seventh Circuit if post “no ex facto violation occurs challenges also the en Berta change merely procedural in the law is of his sentence related to the hancement punishment, nor ‘increase the and does not directed toward the Wells activities change ingredients of the offence or Savings Federal & car at Coral Gables necessary to ultimate facts establish ” Bank Loan and the Brinks car the Ocean Utah, guilt.’ (quoting Hopt Id. at Flagler Bank on lack branches based 202, 210, 28 L.Ed. 110 U.S. S.Ct. of notice and insufficient evidence. He as (1884)). The court concluded: I made no mention of serts Count in the context of other viewed [WJhen *6 there multiple objectives,3 and that provisions—each existence Guidelines support or no little evidence the time of sentenc- at [the defendant’s] multiple determination of offenses. question that the ing—there can be little required already sentencing court was only conspired to Berta that he insists charge if it conspiracy treat a as were Zayre’s and the car at that rob Loomis counts, charging conspir- several each any or quality is of evidence there “no In acy to commit a offense. substantive support a facts” which would stretch introductory comment to particular, the conspired rob finding appellants that the chapter “Multiple Counts” indi- Appellant Brief any other armored composite is a of- conspiracy cates that at He contends that his and his Berta may underly- include several fense which surveillance of Wells co-defendants’ ing And even more illustrative offenses. at Fargo Brinks cars most armored 3D1.2, 9 to Guidelines which is note robbery,” “shopping amounted to part: relevant provides in “looking they simply on con- A defendant be convicted victim,” likely id. at most and easiest substantive spiring to commit several any agree- no evidence of but there committing one or offenses and also of Fargo either the Wells or ment rob In more of the substantive offenses. Brinks cars. cases, conspiracy treat the count such hearing, the district sentencing At the counts, each if it were several as otherwise: court found conspiracy to one of charging commit conspiracy is of the As far as the issue apply Then the substantive offenses. concerned, in the ample evidence there is ordinary grouping rules to deter- record, outlined the Federal level based mine the combined offense conspiracies the number of Agents, as to counts of upon the substantive is convicted and vari- involved. the defendant companies argument. in viola- car ... ployees find merit in Berta's notice
3. We no Code, expressly superseding Section I of the indictment United States Count charges tion of Title conspired added). 1-2) (emphasis to un- 1951(a)." (Rl:29 the defendants "that custody lawfully currency em- from the take prior efforts to do agent’s There were several the Federal testimony that ap- robberies, car pellants like the armored rob- bank followed and deliberately observed go did not beries. down. Fargo the Wells car as it delivered cash at One, example, ques- Federal'Savings Coral Gables involved the & Loan (R5:33-36). they heightened security tion—and off Bird Road. saw There is fur- on the armored car the FBI had testimony revealing because ther appel- alert, advised them that there was an likely lants Fargo saw the extra Wells arm- Agent’s testimony FBI and the outlined security guards ed appellants before the those events. (R5:34; away. R7:126). turned Federal
So, agents I think there is sufficient evidence further testified that appellants pre-conspiracy. Additionally, of the drove the Las Americas mall and moni- charge sufficiently puts count does tored the Wells and Brinks cars as concerning the defendant on notice multi- they cash at delivered Woolworth’s and the ple conspiracies. Flagler Ocean Bank and Bank branches. 56-60).
So, (R6:45-53, appellants I problem ruling have no watched against the defendant on that issue. the armored cars from perspec- different tives on at least three different days. (R10:43). (R6:60-62, 88-92, 99-103). reviewing a sentence under the Guide lines, findings sentencing the factual of the exploits These independent amounted to great court are entitled to deference and overt acts furtherance conspirаcy. accepted clearly must be unless erroneous. Parker, See United States v. 839 F.2d 3742(e) (“The appeals court of U.S.C. § (11th Cir.1988) (“To support a give regard opportunity shall due to the conviction, government judge credibility the district court to 1) prove agreement must to commit witnesses, accept findings and shall 2), unlawful act and an overt act one they of fact of the district court unless are conspirator conspiracy.”). in furtherance of ”); clearly erroneous.... see United States thorough Berta’s more attempt to rob Wilson, Cir. that, negate along Loomis car does not 1989); Spraggins, United States co-defendants, carefully with his he also *7 1541, (11th Cir.1989). F.2d 1543 Fargo monitored the activities of the Wells appellants and Brinks trucks. The could dispute along
Berta does not that have chosen to rob one or all of the ar- conspired his co-defendants he to rob the cars, notеd, mored but as the district court challenge Loomis armored car. He does simply go the earlier not scrutiny offenses “did that his co-defendants’ of the (R10:43). Accordingly, down.” we affirm separate Wells and Brinks cars were independent A the district court’s of the sen- offenses. review of the enhancement record, however, supports imposed conspiracy tence under the count finding lB1.2(d) court’s that the had mul- accord with of the Guide- § tiple objectives. It be inferred from lines.4 Moreover, any appli- range if error occurred in the an The incarceration of 63 to 78 months.
4. Guidelines, appellant it cation of the occurred in imposed district court a minimum sentence of court, relying Berta’s favor. The district on the running concurrently 63 months on each of the Investigation Report, Pre-Sentence calculated a conspiracy counts. base offense level of under Guideline 18 However, C, Appendix under amendments 2B3.1(a), § increased the offense level 4 un- Guidelines, Sentencing 110 and effec- of the 2B3.1(b)(1)(E) potential der approximated because the loss § applying tive November 1989 and on the date $500,000, added another 3 levels 25, 1990, sentencing, April the base offense 2B3.1(b)(2)(C) pursuant to because codefend- § 2B3.1(a) The enhance- § level under was 20. firearm, possessed a ant Small added 3 more potential loss under ment multiple levels offenses under 2B3.1(b)(1)(E) 4 as reflected in the § was not lB1.2(d), and subtracted 2 levels under § adjustments proper- report. calculated 3El.l(a) PSI ly The acceptance for Berta's affirmative level 27. would have raised Berta’s offense to responsibility, for a total offense level 26. At level, sentencing range sentencing, History Catego- At that increased time of Criminal the ry Sentencing imposed Guidelines been I of the Guidelinеs Table 70 to 87 months. Had the
100 8
entry
suspect’s
into
Suppress
and nonconsensual
a
Motion
Kimmons’
exigent
home
the absence of
circum-
challenges the
Appellant Kimmons
583-603,
stances.
U.S.
100 S.Ct. at
Huger
of the
into evidence
introduction
Maez,
In
1378-1388.
the Tenth Circuit
found
rifle and ammunition
Mini-14 assault
a Payton
found
violation where armed offi-
residence
during
sweep
a
of his
protective
cers,
arrest,
having no
for an
warrant
sur-
following
He
his arrest.
ar
immediately
rounded a mobile home and demanded over
exigent
gues
circum
agents lacked
that
speakers
occupants
loud
that the
remove
him to leave his resi
require
stances to
so
themselves
the home
that
sus-
an arrest warrant or
con
dence without
pect
custody.
into
could be taken
872 F.2d
sweep
a search
protective
without
duct
argues
Kimmons
that
further asserts
at 1449-53.
warrant. Kimmons
to a
subsequent
government
consent
search was
used
in his
his
force
arrest
totality of
involuntary because
comparable
was
force found violative
each assertion
We address
circumstances.
of the Fourth Amendment in Maez. More-
of the facts
con
in turn. Our review
over,
govern-
Kimmons contends
light most favorable
strued in the
justify
ment cannot
that use of force
in the district court.
party
prevailed
who
through exigent circumstances because
Alexander, 835 F.2d
v.
See United States
argument
an
such
never made
Cir.1988) (District
(11th
district court.
hearing
suppression
are
findings of fact at
record, however,
The
indicates that
clearly erroneous stan
under a
reviewed
government
argued exigent
indeed
circ
dard.).
umstances,5 circumstances which we find
York,
New
Relying
Payton
v.
compelling on
As we noted in
review.
1009
exigent
The
exception
circumstances
present
en-
willingness to use violence. More-
compasses
pursuit
situations such
hot
over,
Kimmons’ home had served as the
suspect,
of a
risk of removal or destruc- headquarters for the conspiracy, and it was
evidence,
tion of
danger
to thе ar- highly likely that evidence would be con-
resting officers
public.
or the
cealed inside. Finally, with Kimmons
(citation
awaiting
omitted).
In
return of
Edmondson,
his
we did
co-defendants
likely
exigent
not find
surmising
circumstances because
that the robbery had
misfired, any
none of the situations
delay
outlined
further
part
above were
on the
present and
the FBI
because “the
given
would have
circumstances did
Kimmons more
not
impossible
prepare
otherwise make
time to
it
or even
for either violent resistance
imprudent”
agent
or an attempt
escape.
obtain an ar
Consequently, we
rest warrant.6 Id.
In
find
addition to
sufficient exigent
those
circumstances to
situations
Edmondson,
noted in
exigent
justify the arrest.
circumstances
be
indicated
Kimmons next challenges the secu
presence of
factors,
other relevant
such as
rity sweep that immediately followed his
those set
forth United
v.
Stand
arrest, claiming that
the Supreme Court
ridge,
1034,
Cir.1987),
1037
has not recognized
“protective
sweep”
denied,
cert.
481
U.S.
107 S.Ct.
exception to the search
require
warrant
(1987):
F.2d
1525-26
Nonetheless,
alleges
mons at 7.
he
that
security sweep where house wаs like-
ing a
illegal,
his
was
his
because
arrest
subse
and an unknown
ly
with firearms
laden
quent
custody
consent
to search while
inside).
sweep
people
of
were
number
George,
States v.
invalid. See United
883
longer
to
than needed
any
did not
last
(9th Cir.1989) (finding
1407
that con
F.2d
secure the
arrest and
complete Kimmons’
illegal
sent to search was tainted
earlier
Moreover,
was
premises.
the seizure
law-
arrest). However,
his
home
arrest was
weapons
and ammunition
ful because
and
indicates
that Kim-
lawful
evidence
Buie,
plain view. See
494
were found
right
of his
of refusal
mons was aware
110 S.Ct.
U.S. at
form,8
see
signed
he
the consent
before
complains
his
Finally, Kimmons
that
Smith,
F.2d
United States v.
543
search was involun
subsequent
consent
to
(Where
(5th Cir.1976)
trial
court
totality
tary
of the circum
on the
based
issue,
findings
makes no factual
on an
Schneck
that under
He concedes
stances.
appellate
ruling
affirm the
court
Bustamonte, loth v.
S.Ct.
upon
support
in the record that
based
facts
New York
(1973),
1011 Remaining rо, The Claims Cir.1989) F.2d (set- ting forth establishing criteria for defen- appellants The raise several addi- liability dant’s for enhancement under require tional claims that less comment. guidelines possessed for firearm by co-de- challenge Berta and Small fendant). Berta was possess- convicted for court’s four level increase under Guideline ing twelve-gauge a shotgun, but his three- 2B3.1(b) based on a calculation that the § level enhancement upon was based co-de- loss from offense would have been fendant possession. Small’s firearm Sim- approximately $500,000. appellants The ilarly, Small possession was convicted for potential $67,- assert that the loss only was pistol, of a Colt but the enhancement of that was the because sum that three levels upon based was co-defendant picked Loomis truck would up have from possession Berta’s of a different firearm. Zayre’s morning on the attempted of the Because two armed men perpetrating a However, robbery. target of the rob- robbery pose greater a much threat to the bery money already was the in the Loomis public safety only than robber, one armed truck money as well as the from the store. proper it is Otherwise, increase each defendant’s appellants simply might guideline score to reflect this more serious planned have the store rob instead of the conduct. Testimony managers all corporations three intended victim es- challenges Small further his tablished that hundreds of thousands pursuant sentence 924(e)(1), to 18 U.S.C. § millions dollars were carried on the ar- stating charged that he was in Count VII during specific cars mored routes that violating 924(a)(1)(B), 18 U.S.C. § (R8:81,84, appellants targeted. had which carries a maximum only term of five 92). The district finding court’s factual years. Thus, contends, Small he wаs not potential $500,000 loss of supported by is legally on of his notice offense and the preponderance of the evidence. See potential penalty imprisonment. of life Munio, Ignancio United States v. 909 F.2d However, count, in the same the indictment (11th Cir.1990)(The underly facts charged also violating him with 18 U.S.C. ing a sentence must by be established 922(g)(1). only speci The indictment not § preponderance evidence.), cert. de fied the elements of the offense under 18 —nied, -, 111 S.Ct. 922(g)(1), specified U.S.C. but also § (1991). L.Ed.2d 449 eligibil convictions that established Small’s Berta and argue Small also ity potential for the life sentence carried erroneously district court enhanced government under that The section. con by their sentences three levels under cedes that it incorrectly included 18 U.S.C. 2B3.1(b)(2)(C) Guideline each co- because § 924(a)(1)(B) VII, in Count but notes that § during defendant carried a firearm merely the referencе surplusage given conspiracy. commission of the Each was disregarded that the district court it and sixty-month sentenced to a term of incar 924(e)(1) properly applied pursuant § violating 924(c). ceration 18 U.S.C. § 922(g)(1). agree. pen The enhanced We § appellants guideline assert alty provisions 924(e)(1) of 18 U.S.C. are § application “double-counting,” amounted to not elements of the offense and need not prohibits. which Guideline 2K2.4 How § be set forth indictment. See United ever, application district court’s McGatha, States v. 1524-25 2B3.1(b)(2)(C) appellant to each did not § (11th Cir.), denied, cert. 495 U.S. count” because it “double neither involved (1990). S.Ct. L.Ed.2d 516 firearm nor the same possession same penalty imposed remaining under 18 We no find merit 924(c). Accordingly, U.S.C. See United States v. Ote- claims.9 we AFFIRM the challenges charge his conviction Small under Count Count VII Count VIII the same of- fense, except VII because verdict fоrm returned Count VII relates to Small jury contains a check Count instead. VIII Count VIII to Kimmons. There was no Count *11 1012 conspiring to commit of the defendant and the sentences
challenged convictions object offense.1 that on each defen- imposed court the district dant. dis- Thus, the this instruction admonishes in “particular care” Judge, court to exercise
CLARK, trict Circuit Senior has con- dissenting part: determining a defendant in whether part in and concurring one offense for commit than spired to more points on all majority the agree I with lB1.2(d). The commentaries purposes § that the district I conclude except one. that, in make clear guidelines also to the single treating defendants’ in court erred determination, district making the this for offenses three conviction as conspiracy doubt stan- apply must a reasonable court lB1.2(d). Accord- purposes of U.S.S.G. § of the dard, preponderance the rather than resulting three the find that ingly, I would generally applicable standard evidence offense in each defendants' level increase explain- appendix sentencing issues. for remand the case and erroneous level is quoted provides: commentary above ing the upon proper applica- resentencing based ..., consistency this In order to maintain lB1.2(d). tion of § governed by a reason- should be decision lB1.2(d), a con- to U.S.S.G. Pursuant § higher A standard doubt standard. able charging on a count viction govern the creation proof should be offense must than one more commit effect, is, count of convic- in a new what con- had been if the defendant treated as tion ....2 conspiracy for separate count victed lB1.2(d) appropri- Thus, application of § conspired that the defendant each offense beyond a only if the shows ate evidence effect, treatment, re- in Such to commit. com- that the defendant doubt reasonable pur- of conviction in new count sults conspiracy. one more than mitted Accordingly, sentencing. as poses of clear, makes this lB1.2(d) case, probation officers who commentary to In this § cautiously: investiga- applied presentence must be guideline defendants’ drafted “defendants represented that reports tion applying taken care must be Particular monitoring pickup involved in were (d) there are cases because subsection car practices of three armored delivery not estab- does jury’s verdict Brinks, [Fargo], Wells offense(s) object companies: was the lish which “moni- solely on this Relying cases, Loomis.”3 subsec- conspiracy. such ap- officers activity, probation toring” re- applied with (d) only should tion be effect, convert- lB1.2(d), thereby, in plied alleged in the object § offense spect to conspiracy conviction one court, ing it defendants’ were if the conspiracy count sentencing hearing, the At fact, into three. convict would sitting a trier as (A finding However, Cir.1976) as to the (5th trial because verdict form. VII on either hearsay jury offered carefully declaration instructed the of a court trustworthiness 804(b)(3) charged exculpate pursuant that Fed.R.Evid. Small erroneous.), counts, (R9:223), and separate clearly same offense be unless will sustained defendant all counts guilty verdicts on jury denied, returned 97 S.Ct. 429 U.S. t. cer 50 L.Ed.2d defendant, error. no reversible we each find (1977), claim or in Kimmons’ 794 Rosenthal, 1214 793 F.2d See United sup legally insufficient the evidence was Cir.1986) (As (11th in an indictment each count VIII, VI and under Counts port his conviction considered, sup may if stand separately it is ported Mena, 1529 States v. see United denied, evidence.), U.S. cеrt. 480 Cir.) (Evidence simply sufficient (11th be must (1987); 94 L.Ed.2d 107 S.Ct. cf. beyond guilt a reason prove defendant’s States, F.2d United Shelton Cir.1956) (recognizing light favor most in the when viewed doubt able stand, a verdict denied, government.), cert. to the able flaws, meaning notwithstanding "if certain (1989). 107 L.Ed.2d 110 S.Ct. doubt beyond a reasonable jury is clear finally sets their recorded out and intention."). verdict comment, 5) (n. lB1.2(d), 1. U.S.S.G. Kimmons’ assertion merit do we find Nor App. C 75. 2. U.S.S.G. ¶ when it denied court erred district Small, hearsay statement of a introduction reports investigation 162, 166-67 3. Presentence Bagley, F.2d States v. see United *12 district objec- Q: court overruled defendants’ When it was in the mall already? point, apparently finding tions on this that A: After gotten it had there it came there was sufficient evidence to conclude my attention, I do seeing remember it conspired that defendants to rob each of there. companies. the three armored car Apply- Q: you Where did go see it to оr ing guidelines quot- and commentaries where was it you when saw it? above, ed uphold we this conclusion A: It was west of Zayre shopping only if there was sufficient evidence for the center area, over here in this somewhere district court to find beyond a reasonable west over here. conspired doubt that defendants to rob Q: pull Did it up Flagler to a Federal companies. each of these three Savings Bank? trial, At agents federal testified that de- Yes, A: it did. fendants Fargo observed a Wells armored Q: Is that this bank at the bottom? car; ear and a Brinks armored there is no Yes, A: I banks, remember the two it evidence any that defendants ever took general was in the I area observed it. steps, observation, other than mere toward Q: Where was Mr. Small at robbing Indeed, either of these cars. time? only testimony regarding a Brinks armored IA: believe he was back over here in Agent Schoрperle, car is that of who ob- curve, the area of the east of that bank. served defendant Small at Las Americas Q: you Did see doing? what he was shopping center Agent on June 1989. A: He observing seemed to every- be Schopperle testified: thing, activity going that was inon Q: your Let me direct attention to parking lot. He watching cars later on approximately that afternoon coming going, coming vehicles p.m. you 2:40 Did observe another ar- going. Exactly doing what he was other vicinity mored car enter the of Las Amer- looking than activity shopping in the icas Mall? center I couldn’t be certain.4 possible A: might It’s there have This is the only evidence in the record been a Brinks armored car vehicle come tending any to show part interest on the During in. the time I was I there noticed any of the defendants in the Brinks ar- several armored car vehicles come company. mored car This evidence certain- through on different dates. ly support is not sufficient to a conviction Q: youDo your logs need to check conspiracy company. to rob this your memory refresh as to whether or majority position takes de- not the Brinks armored car entered the fendants’ observation of the Brinks and day? mall that Fargo Wells armored cars “amounted to A: percent To be one hundred certain independent overt acts in furtherance of a for the exact time. conspiracy.” support To con- Q: you Do logs handy? have the viction, however, government must also No, A: I don’t. prove agreed that the defendants to com- Q: you Let me show the surveillance Here, object mit the offense. there is abso- log from you June 23rd and ask to re- lutely agreed no evidence that defendants view that. either the Brinks rob or the Wells Yes, p.m. A: at 2:40 armorеd cars. Both of these cars made Q: you Did observe? vicinity deliveries in the same Loom- not, looking A: I log, did at the I eventually is armored car that defendants observe, actually did not a Brinks attempted armed to rob. That defendants would center, shopping plan car did come into the agree different ar- rob three arrival, I exactly but did not vicinity logic. observe its cars in the same defies mored Indeed, but I did see it. only logical inference can through 4. R6-56 proper application of is that defen- accordance the evidence
be drawn car, lB1.2(d). but agreed to rob one dants *13 cars an separate armored three observed majori- target. attempt to find the one cho- have that defendants “could
ty states of the armored or all to rob one
sen cars_” added.) There is ab- (Emphasis however, evidence, that defen-
solutely no three of the rob all choose to did
dants Rather, evidence indi- cars. armored to rob one of chose that defendants cates VERMEULEN, Ann Laura car, сars, the Loomis Plaintiff-Appellant, This sim- two. rob the other not to chose v. type of situation ply not INC; RENAULT, Regie Nationale lBl.2(d) to reach. was intended U.S.A. § Renault; Jeep Eagle Sales Des Usines Indeed, in marked con- case stands this Corporation; Regie Des Nationale Johnson,5 in trast States United Chrysler Corpora- Usines Renault proper upheld a Eighth Circuit tion, Defendants-Appellees. lB1.2(d). in- application of Johnson robbery. The attempted bank volved No. 91-8765. the defen- at trial showed that evidence Appeals, United States Court co-conspirators, selected dants, group Eleventh Circuit. banks two to be robbed. These two banks other, and from each the street were across July 1992. them simul- planned to rob the defendants appeals noted taneously. As the court application affirming the district directed lB1.2(d), conspiracy “was of § banks, just robbery two not
toward
one.” Johnson, defen- the defendants
Unlike plan not to rob more in this case did
dants Rather, they car. one armored
than car, they observed one but
planned to rob Thus, one. pick out the in order
several of- conspired one commit
defendants robbery of an armored
fense: activity their agents observed federal
That target of one offense they this chose I three. offense into not turn the one
does if the evi- majority agree with the
would actually that defendants showed
dence Well Brinks and agreed to rob the only
cars; shows The evidence it does not. an ar- agreed rob
that the defendants Loomis car, subsequently chose
mored simply cannot target. Defendants
as their conspired to rob to have
logically be said According- they cars observed.
each of the court on this
ly, I would reverse resentencing case for remand the
point and 1, 1992). May Johnson, Cir. WL 86203 F.2d United