United States Court of Appeals,
Eleventh Circuit.
Nos. 94-2711, 94-2713.
UNITED STATES of America, Plaintiff-Appellee,
v.
John Anthony LUIZ, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Sean S. GRIFFITH, Defendant-Appellant.
Dec. 30, 1996.
Appeals from the United States District Court for the Middle
District of Florida. (No. 94-5-CR-ORL-18), Patricia C. Fawsett,
Judge.
Before TJOFLAT and COX, Circuit Judges, and VINING*, Senior
District Judge.
PER CURIAM:
John Luiz and Sean Griffith were convicted, on their pleas of
guilty, for conspiracy to commit bank robbery in violation of 18
U.S.C. § 371 (1994). Luiz and Griffith appeal, challenging their
sentences. We affirm.
I. Background
Between November 1991 and June 1992, Gary Settle robbed five
central Florida banks at gunpoint. John Luiz assisted Settle in
these robberies in various ways, serving as a lookout, driver of
the drop-off vehicle, or driver of the "switch" vehicle.1 Griffith
*
Honorable Robert L. Vining, Jr., Senior U.S. District Judge
for the Northern District of Georgia, sitting by designation.
1
Settle left the scene of these robberies in a getaway car
driven by an accomplice, or in a car stolen from a bank customer
or employee. Settle would then meet an accomplice in a second
assisted Settle in two of the robberies, once as a lookout and once
as driver of the getaway vehicle. Luiz and Griffith were arrested
in September 1992 when officers stopped them and found a nylon
stocking mask and other gear in Luiz's car. Luiz and Griffith
admitted to authorities that, at the time of their arrest, they
were planning to rob a bank using a method taught by Settle.
Following their arrest, Luiz and Griffith assisted the
government in investigating Settle. Luiz and Griffith also
testified at Settle's trial on charges involving these and other
bank robberies. Settle was convicted of nineteen counts arising
out of bank robberies, including eight counts of armed bank robbery
and nine counts of using a firearm in relation to the commission of
a crime of violence, and sentenced to more than 177 years
imprisonment. After Settle's conviction, Luiz and Griffith were
indicted for conspiring "with each other and with persons known to
the Grand Jury" to commit armed bank robbery. (R.1-38 (Luiz);
R.1-38 (Griffith).) Both Luiz and Griffith pled guilty to the
charge in the indictment.
Pursuant to U.S.S.G. § 2B3.1(b)(2)(C), the Presentence
Investigation Reports ("PSIs") for Luiz and Griffith recommended a
five level increase in the defendants' base offense levels because
Settle brandished a firearm during the robberies. See United
States Sentencing Commission, Guidelines Manual § 2B3.1(b)(2)(C)
(Nov.1993). Both defendants objected to this increase on the
ground that Settle, who possessed the firearm, was not charged or
vehicle at a prearranged location near the bank, and abandon the
getaway vehicle. The second vehicle is the "switch" vehicle.
named as a co-conspirator in the indictment charging Luiz and
Griffith. The district court overruled the objection and applied
the five-level increase. Luiz and Griffith also argued that they
were entitled to a two-level decrease in their offense levels under
U.S.S.G. § 3B1.2(b) because they played minor roles in the
conspiracy. The district court denied this reduction for role in
the offense. Finally, the government moved for a five-level
downward departure for each defendant on the ground that they
provided substantial assistance to the government in the
investigation and prosecution of Settle. See U.S.S.G. § 5K1.1.
Luiz and Griffith argued that their assistance to the government
merited nine-level downward departures. After noting that Luiz and
Griffith were charged only with one conspiracy, which has a
five-year maximum sentence, rather than with separate bank
robberies and gun charges like Settle, the court denied the § 5K1.1
motion as to Luiz, and granted a three-month reduction in
Griffith's sentence. The court sentenced Luiz to 60 months
imprisonment, and Luiz to 57 months imprisonment. This appeal
followed.
II. Issues on Appeal and Standards of Review
Luiz and Griffith challenge their sentences on two grounds
that we address.2 First, they contend that it was error to
increase the offense level under U.S.S.G. § 2B3.1(b)(2)(C) for
Settle's possession of a firearm where Settle was not charged or
2
In addition to the arguments we address in this appeal,
Luiz and Griffith challenge their sentences on the ground that
they had minor roles in the offense and are entitled to two-level
reductions. This argument is meritless and does not warrant
discussion. See 11th Cir. R. 36-1(a).
named as a co-conspirator in the same indictment with Luiz and
Griffith. This issue involves an interpretation of the sentencing
guidelines that we review de novo. See United States v. Aduwo, 64
F.3d 626, 628 (11th Cir.1995) (whether firearm can be imputed to
non-possessing defendant under U.S.S.G. § 2K2.1(c) is a question of
law). Second, the defendants argue that the district court
misapplied U.S.S.G. § 5K1.1 by considering factors other than their
substantial assistance in refusing to grant a departure to Luiz,
and in granting less than the requested departure to Griffith.
Generally, we review neither the refusal to grant a § 5K1.1
departure nor the extent of such a departure. United States v.
Castellanos, 904 F.2d 1490, 1497 (11th Cir.1990). But where, as
here, a ruling on a § 5K1.1 motion is challenged on the grounds
that the court misapplied the guideline, we review the ruling de
novo. Id.
III. Discussion
A. Firearm-Related Increase in Offense Level
Under the sentencing guidelines, the base offense level for
robbery is increased by 5 if the defendant brandishes, displays, or
possesses a firearm. U.S.S.G. § 2B3.1(b)(2)(C). A defendant may
also be held accountable at sentencing for a co-conspirator's
possession of a firearm if certain circumstances are present.
United States v. Kimmons, 965 F.2d 1001, 1011 (11th Cir.1992)
(robbery conspiracy defendant's base offense level increased under
§ 2B3.1(b)(2)(C) where co-conspirators possessed firearms), cert.
denied, 506 U.S. 1086, 113 S.Ct. 1065, 122 L.Ed.2d 370, cert.
granted, judgment vacated and case remanded on other grounds sub
nom. Small v. United States, 508 U.S. 902, 113 S.Ct. 2326, 124
L.Ed.2d 239, judgment reinstated, 1 F.3d 1144 (11th Cir.1993); see
also Aduwo, 64 F.3d at 629-30 (gun conspiracy defendant's base
offense level increased under § 2K2.1(c) where co-conspirator
possessed a firearm); United States v. Otero, 890 F.2d 366, 367
(11th Cir.1989) (drug conspiracy defendant's base offense level
increased under § 2D1.1(b) where co-conspirator possessed a
firearm). The rationale for attributing the possession of a
firearm by one co-conspirator to another is the Pinkerton rule that
"conspirators are liable for the reasonably foreseeable acts of
their co-conspirators in furtherance of the conspiracy." Aduwo, 64
F.3d at 629 (citing Pinkerton v. United States, 328 U.S. 640, 66
S.Ct. 1180, 90 L.Ed. 1489 (1946)), Otero, 890 F.2d at 367 (same);
see also U.S.S.G. § 1B1.3(a)(1)(B) (relevant conduct for conspiracy
offense includes "all reasonably foreseeable acts of others in
furtherance of the jointly undertaken criminal activity.").
Otero set out a three-part test for determining whether
attributing another person's possession of a weapon to the
defendant was proper: "first, the possessor must be charged as a
co-conspirator; second, the co-conspirator must be found to have
been possessing a firearm in furtherance of the conspiracy; and
third, the defendant who is to receive the enhanced sentence must
have been a member of the conspiracy at the time of the firearms
possession." 890 F.2d at 367. Luiz and Griffith concede that the
second and third Otero factors are met in this case, but they argue
that the first factor is not met because Settle was not charged or
named as a co-conspirator in the same indictment with them. The
Government responds by arguing that the first Otero requirement is
dictum, and alternatively that Settle was unavailable for
indictment when Luiz and Griffith were indicted because he had
already been charged and convicted on charges involving these
robberies. See United States v. Louis, 967 F.2d 1550, 1553-54
(11th Cir.1992) (holding that possessing co-conspirators were
unavailable for indictment because they were never identified);
United States v. Nino, 967 F.2d 1508 (11th Cir.1992) (holding that
possessing co-conspirators were unavailable because one died and
one was granted immunity). The district court held that the first
factor of the Otero test was dictum.
We agree with the district court. In Nino, we noted that
Otero, like any other judicial opinion, must be read in the context
of the facts of that case. 967 F.2d at 1514. The Otero court was
not faced with the question whether a defendant could be sentenced
based on the possession of a firearm by an uncharged or unnamed
coconspirator because the co-conspirators in that case were named
and charged as co-conspirators. 890 F.2d at 367. As Nino
explains, the rationale of the first Otero factor is to "avoid[ ]
artificial sentence enhancement for firearm possession when the
weapon is actually or constructively possessed by a person outside
the conspiracy." This rationale is satisfied if the possessor of
the firearm is a co-conspirator of the defendant whose sentence is
enhanced.3 The district court found that Luiz, Griffith and Settle
3
Of course, other factors that Luiz and Griffith have not
contested in this appeal must be shown for a co-conspirator's
possession of a firearm to be attributed to a defendant. See
U.S.S.G. § 1B1.3, commentary n.2 (conduct of others that is not
in furtherance of a jointly undertaken criminal activity or is
were co-conspirators. Thus, it was not error to attribute Settle's
possession of a firearm to Luiz and Griffith despite the fact that
Settle was not indicted in this case.
B. Substantial Assistance Departure
When, on the Government's motion, a district court grants a
downward departure under U.S.S.G. § 5K1.1 or reduces a sentence
under Rule 35(b), the sentence reduction may be based only on
factors related to the defendant's substantial assistance. United
States v. Aponte, 36 F.3d 1050, 1052 (11th Cir.1994); United
States v. Chavarria-Herrara, 15 F.3d 1033, 1037 (11th Cir.1994).
For example, the district court in Chavarria-Herrara considered
factors such as the defendant's first-time offender status and good
prison behavior in reducing his sentence under Rule 35(b), and we
reversed. Id.
Luiz and Griffith contend that the district court misapplied
§ 5K1.1 when the court considered the Government's decision to
charge them leniently.4 They argue that consideration of the
Government's charging decision is improper under Chavarria-Herrara
because this factor is unrelated to their substantial assistance.
We recently rejected a similar argument with respect to Rule 35(b).
United States v. Manella, 86 F.3d 201, 204-05 (11th Cir.1996).
Manella holds that Chavarria-Herrara does not apply where the
not reasonably foreseeable is not relevant conduct).
4
Luiz and Griffith also challenge the district court's
conclusion that, if they had been charged with separate robbery
and gun counts, they would have received a much greater sentence
under the guidelines. Luiz and Griffith did not make this
argument at the sentencing hearing, and we decline to address it
for the first time on appeal.
district court's refusal to grant a Rule 35(b) motion is based on
factors other than substantial assistance. In Manella, which
involved a resentencing, the district court considered factors such
as the seriousness of the offense of conviction and the leniency of
the original sentence imposed, and we affirmed. We reasoned that,
while the district court may reward a defendant under Rule 35(b)
only for substantial assistance, the court's decision to grant a
Rule 35(b) reduction remains discretionary. See Manella, 86 F.3d
at 204 & n. 6. A reading of Rule 35(b) that "requires the district
court to consider substantial assistance in isolation from any
other factor leaves too little discretion for the court to
exercise." Id. at 205.
Our decision in Manella was based on Rule 35(b), but Manella
's reasoning applies to U.S.S.G. § 5K1.1 and to this case. The
district court's decision on a § 5K1.1 motion, like the court's
decision on a Rule 35(b) motion, is discretionary. United States
v. Castellanos, 904 F.2d 1490, 1497 (11th Cir.1990). In
considering the Government's charging decision, the district court
compared Luiz's and Griffith's offense conduct, as described in the
PSI, to their offenses of conviction. We hold that the court's
consideration of this factor was not a misapplication of § 5K1.1.
IV. Conclusion
Luiz's and Griffith's argument that their offense levels were
improperly enhanced fails. It is immaterial that Settle was not
charged or named as a co-conspirator because the district court
found that Luiz, Griffith and Settle were co-conspirators. The
defendants' argument that the court misapplied § 5K1.1 also fails
because, in the exercise of its discretion, the district court may
consider other factors in addition to substantial assistance that
militate against granting a departure.
AFFIRMED.