*1 America, of STATES UNITED

Appellee, REGENWETHER, W.

Jedediah

Appellant. 01-3270.

No. Appeals, of Court Circuit.

Eighth 14, 2002.

Submitted: 27, Aug.

Filed: Public Federal Messina, Asst. P.

John IA, Moines, appellant. Defender, Des Jr., Attor- U.S. Asst. Deegan, E. Peter IA, appellee. Rapids, neys, Cedar WOLLMAN, and Before Judges. GIBSON, Circuit R. JOHN CURIAM. PER convicted to commit of solicitation counts aiding and violence, count one crime one robbery, abetting abetting bank aiding count to commit conspiracy count one was sentenced aid- each imprisonment months’ months’ abetting charges, solicitation each prisonment imprisonment months’ charges, con- served charge, currently. sentencing enhancement *2 8 finding

U.S.S.G. after and the attempt. aborted Radcliffe bank Regenwether’s possession that of a firearm Radcliffe charges The bank included a con- spiracy charge that Regen- dated back to It is from this en- 1B1.3. attempts wether’s aborted to rob the Rad- Regenwether hancement that appeals. Abney cliffe bank with and Olscewski. Regenwether charges was convicted all This case involves two of interrelat- sets of 2001. 13, criminal ed convictions. On March 1998, Regenwether Abney and Vincent At sentencing, objected County Community robbed the Boone presentence report’s to the failure to in- (the robbery). Credit Union Credit Union clude enhancement for having perpetrated In addition to shotgun as conduct relevant to the robbery, Regenwether Credit Union charges. Following Radcliffe bank a hear- Abney also had to rob the Secu- ing, the district court determined that Re- (the rity Radcliffe, State Bank Iowa genwether’s possession of shotgun be- bank). Subsequently, Regen- fore his conviction for the Credit Union wether to recruit James Ol- robbery was conduct relevant to the Rad- a scewski for second attempt to rob the bank charges. cliffe The court made two Radcliffe bank. Olscewski an FBI became First, findings alternative posses- of fact. informant, Regenwether was arrested. shotgun sion of the was relevant conduct Regenwether cooperated with the FBI and Regenwether intended to use the during the cooperation course that shotgun in the attempt second to rob the pm-chased admitted he had Second, possession Radcliffe bank. to use robbery. A shotgun was relevant conduct because Re- tape recording attempt of his recruit genwether try used it to to recruit Olszew- Olscewski revealed that Regen- ski a co-conspirator to rob the Radcliffe plan robbing wether’s the Radcliffe bank. bank was to brandish the in an “Whether an act or omission consti effort to intimidate personnel into tutes relevant conduct is a factual determi giving money. him the No result- nation.” United States v. Plumley, 207 ed from the conduct surrounding the Rad- (8th 1086, Cir.2000) (citing Unit cliffe Regenwether pleaded guilty 561, (8th Georges, ed v. States 146 F.3d Credit Union and was sen- Cir.1998)). Thus, we review for clear er eighteen tenced to in prison. months Larson, ror. United States v. 110 F.3d Upon Regenwether’s release pris- from (8th 620, (citing United house, on he entered a halfway where he Lamere, (8th 506, States Benjamin met Kirk. After their release Cir.1992)). house, the halfway from Kirk Regen- Regenwether conspired wether attempt on third to rob conviction 30, any relevancy mooted September Radcliffe bank. On 1999, Kirk, 1998 conduct following to the 1999 charges. Regen- in- structions, acknowledged entered wether at the bank but left with- out receiving any money. On was not used to November enhance his 10, 1999, Regenwether and Kirk sentence for success- the Credit Union fully robbed the First American State Possession Bank and were November conduct as to the 1999. for con- Radcliffe bank. The dates conspira duct related to the cy, indictment, First American charged in up); is down and down is until November March 1998 to the Radcliffe v. Cir. Galloway, that visit jury found meeting 1992) and the dissenting) (comparing on March Olscewski between relevant con *3 in overt acts further- April the provisions guidelines duct to an acts Both of those conspiracy. of the ance in Alice in which words Wonderland world first conviction predate Regenwether’s meaning is up lose their real and down clearly relate down). I in making is am not alone Thus, the we find that v. Fri comparison. such United States in not clear error did commit as, J., (Oakes, 393 concur of the possession determining ring). the imposing relevant conduct was the example Here we have another increase. three level application Sentencing to as reject Regenwether’s alsoWe for inflate sentence reasons seem § 1.3 Note 8 to IB Application sertion that nonsensical. consideration of the prohibits the Regenwether challenges the Applica in this conduct case. application district court’s a three-level states that “offense conduct tion Note 8 enhancement sentencing under U.S.S.G. im with a sentence that associated § upon Regenweth- based prior to the acts or omissions consti posed the shotgun, er’s which federal offense ... is not instant tuting the un- district court deemed relevant conduct of the same course considered § government der 1B1.3. The ar- offense of conviction.” conduct ... as the gues that the by is Note 8 limited its terms Application Regenwether’s connected 1B1.3(a)(2), to offense activities, incorporat- which were (a)(2) turn, applies In subsection however. conspir- the ed into the instant offense via referenced under only to offenses cross acy count. 3D1.2(d). not so Bank is cross that the thus, Regenwether argues referenced; Application Note 8 does possess- apply increase should not because apply. not is not relevant conduct affirmed. The sentence is respect light crimes with arrest, prosecu- intervening defendant’s Judge, concurring. Circuit tion, for one incarceration up- written previously I have about gun when Police seized the robberies.1 Sentencing down world of the Guide- side in 1998. they Smiley, United States lines. See robbery ac- present stems from 1999 case (8th Cir.1993) J., (Bright, possession of tivities. The 1998 dissenting) (suggesting case, the instant impact have no posed guidelines under the where no rules according to Regenwether, apply and where evidence robberies as no gun played role approve probation judges summarily often fact that the indictment evidenced seem to come officer recommendations gun, no whatsoever of the makes mention in Wonderland world where from Alice robberies, notes, Radcliffe Bank. Those majority pleaded 1. As the however, conspiracy count are included in but guilty to the 1998 case, and form basis government of the instant did not file on the including shotgun as relevant conduct. alleged robberies and the facts reveal that gun not (“In concurring) too used in the planning or execution of the many instances, the sentences directed by 1999robberies. the guidelines waste the lives of men and In Regenwether’s view, ... women. It is time a re-evaluation is trying to use the conspiracy and change.") count to (emphasis in original); see pull in the 1998 pre-incarceration gun pos- also United Chavez, States v. session as relevant conduct in order to (8th Cir.2000) (Bright, J., con- enhance sentence.2 I think (“ curring) ‘Is anyone out there listening?’ that Regenwether is absolutely correct. not, If isn’t time?”). it about Unfortunately, the law of conspiracy and *4 the applicable sections of the Sentencing

Guidelines allow precisely this type of en-

hancement.

The jury convicted Regenwether of a

conspiracy going back to March of 1998.

The attempted Radcliffe bank robbery was

an object of this conspiracy, as was the March 31 meeting X, RAHMAN between Regenwether also known as Alvin and Olszewski. Based Jackson, the jury’s Appellant, ver- dict and § 1B1.3, the trial court could properly determine that the gun was Randall MORGAN, Warden, to the conspiracy count. Arkansas Department Correction; Steve Out Frankly, it is situations like this that law, Assistant Warden,

have Arkansas led De me to conclude many partment of Correction; Apel, J. make little sense. The defen- Building Captain, dant Depart Arkansas committed certain crimes in ment of Correction; served time for J. Barger, the charges Build govern- ment Lieutenant, brought point, Department at that Arkansas and surren- dered his shotgun. Corrections; Now H. Shelton, his offense level Field is enhanced Lieutenant, three levels for possession Department Arkansas gun that he Correction; surrendered before the vast Charles McIntosh, Classi majority of the unlawful conduct fication Officer, Department Arkansas occurred. may of Correction; This H. Lewis, Building the current law, state but does it Manager, Department Arkansas make sense? Correction; Harmon, G. Warden, Ar Department Even though kansas I am obligated Correction; exist- ing law concur, G.D. I say Guntharp, it is time for Assistant Director, Ar change. Again, I Department reiterate kansas my call for of Correction; abolishing or radically Larry changing Norris, the Sen- Director, Arkansas De tencing Guidelines partment and adopting a more of Correction; and R.E. fair just system. See e.g., Wimberly, Chief of Security, Arkansas States v. England, Department of Correction, Appellees. Regenwether's argument full is that relevant van! conduct in the 1999 robberies. Regen- conduct, conspiracies, like must have begin- wether’s 1998 conspiracy with Abney is a ning and an end. that his inter- distinct conspiracy from the 1999 association vening incarceration prevent with Kirk. being considered rele-