F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 30 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-3274
DONNIE R. BOLDEN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 95-CR-40062)
Randy M. Hendershot, Assistant United States Attorney, (Jackie N. Williams,
United States Attorney, with him on the brief), United States Attorney’s Office,
Topeka, Kansas, for Appellee.
Charles D. Dedmon, Assistant Federal Public Defender, (David J. Phillips,
Federal Public Defender, with him on the brief), Federal Public Defender for the
District of Kansas, Topeka, Kansas, for Appellant
Before TACHA, McKAY, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Donnie Bolden pleaded guilty to attempted bank robbery and was sentenced
to a fifty-one month term of imprisonment pursuant to the United States
Sentencing Guidelines (“U.S.S.G.”). 1 Bolden appeals his sentence on two
grounds. First, he claims the district court erred in enhancing his sentence five
levels for possession of a firearm. Second, Bolden contests the district court’s
failure to reduce his sentence under U.S.S.G. § 2X1.1, which addresses attempts.
We affirm.
BACKGROUND
In 1995, Chris Stapleton, an acquaintance of Bolden, became a confidential
informant for the Kansas Bureau of Investigation. Bolden and Stapleton planned
a robbery of Bank IV in which they would split the proceeds. Through use of a
wire worn by Stapleton, the FBI was able to monitor conversations between
Bolden and Stapleton regarding the logistics of the robbery plan. Pursuant to
their robbery plan, Stapleton obtained a firearm. The firearm was an inoperable
weapon supplied by the Kansas Bureau of Investigation.
On August 18, 1995, the two arrived at Bank IV and parked their car.
According to their plan, Bolden was to wait in the car for Stapleton to complete
1
The 1995 United States Sentencing Guidelines are applied in this case. All
citations to the Sentencing Guidelines therefore reference the Guidelines in effect
in 1995.
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the bank robbery and then Bolden would drive the getaway car. Stapleton left the
car with the firearm and walked towards the bank. As soon as Stapleton was out
of Bolden’s view, Bolden was arrested. Bolden pleaded guilty to attempted bank
robbery and was sentenced to a fifty-one month term of imprisonment pursuant to
the Sentencing Guidelines.
This court reviews legal questions regarding the application of the
Sentencing Guidelines de novo. See United States v. Farnsworth, 92 F.3d 1001,
1007 (10th Cir.), cert. denied, 117 S. Ct. 596 (1996); United States v. Santiago,
977 F.2d 517, 524 (10th Cir. 1992). Factual findings of the district court are
reviewed for clear error. See United States v. Kissick, 69 F.3d 1048, 1051 (10th
Cir. 1995); Santiago, 977 F.2d at 524.
FIREARM ENHANCEMENT
Section 2X1.1 of the Sentencing Guidelines, which covers attempt,
solicitation, and conspiracy, provides that the base offense level for an attempted
offense is “[t]he base offense level from the guideline for the substantive offense,
plus any adjustments from such guideline for any intended offense conduct that
can be established with reasonable certainty.” U.S.S.G. § 2X1.1(a). “Substantive
offense” is defined in the commentary as “the offense that the defendant was
convicted of soliciting, attempting, or conspiring to commit.” Id. § 2X1.1
Application Note 2.
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In this case, Bolden pleaded guilty to attempted robbery. The substantive
guideline covering robbery provides a five-level enhancement “if a firearm was
brandished, displayed, or possessed.” Id. § 2B3.1(b)(2)(C). Bolden contends the
district court erred in imposing a five-level enhancement pursuant to this section
for two reasons. First, Bolden argues the government failed to meet its burden of
proving the firearm was “brandished, displayed or possessed” during the course of
the attempted robbery. In his written objections to the Presentence Investigation
Report, he asserted:
Certainly, the weapon was not brandished or displayed to any of the
victims. In addition, while the weapon apparently was possessed at
some time by the government agent, it was not possessed in the bank
by the government agent.
Second, Bolden challenges the district court’s conclusion that the firearm
possessed solely by Stapleton could be attributed to Bolden for purposes of
enhancing his sentence. Both of these arguments fail.
Section 2X1.1 of the Sentencing Guidelines clearly provides that the base
offense level for a defendant who “attempts” to commit a substantive offense is
adjusted “for any intended offense conduct that can be established with
reasonable certainty.” Id. § 2X1.1(a). In sentencing a defendant who attempts to
commit a crime, therefore, the court looks not only at the completed conduct but
also at conduct intended by the defendant. The commentary explaining the
application of this guideline clearly illustrates that when a defendant plans an
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armed robbery, the defendant’s sentence may be enhanced for the possession of a
weapon even if the robbery is thwarted by law enforcement officers before its
execution. It states:
[I]f two defendants are arrested during the conspiratorial stage of
planning an armed bank robbery, the offense level ordinarily would
not include aggravating factors regarding possible injury to others,
hostage taking, discharge of a weapon, or obtaining a large sum of
money, because such factors would be speculative. The offense level
would simply reflect the level applicable to robbery of a financial
institution, with the enhancement for possession of a weapon.
Id. § 2X1.1 Application Note 2 (emphasis added); see also United States v. Jones,
950 F.2d 1309, 1316-17 (7th Cir. 1991) (upholding weapon enhancement for
defendant who pleaded guilty to soliciting another person to help commit bank
robbery because there was ample evidence the defendant planned to use a firearm
during the robbery and noting “[t]hat the robbery never actually took place is
irrelevant to the district court’s computation”).
The government was therefore not required to prove that the firearm was
actually “brandished, displayed, or possessed” during the robbery, but only that it
was Bolden’s intent that such conduct would take place. Bolden does not dispute
that this was his intent. The count to which he pleaded guilty explicitly stated
that
the defendant, Donnie R. Bolden, did knowingly and intentionally
attempt to take from the person or presence of another, money or
property or a thing of value, to wit: United States currency, by force,
violence and intimidation . . . and in committing said offense, the
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defendant did assault and put in jeopardy the lives of other persons
by the use of a dangerous weapon, to wit: a handgun.
(Emphasis added.) Furthermore, at the sentencing hearing, Bolden’s counsel
explicitly agreed it was Bolden’s intent that Stapleton would use the firearm
during the robbery. In arguing before the district court, counsel stated: “Mr.
Bolden expected [Stapleton] to use the gun. . . . so there was intent.” Bolden’s
only contention is that the government failed to prove Stapleton actually entered
the bank with the firearm. Under U.S.S.G. § 2X1.1(a), such a showing was not
necessary. 2
Bolden’s second argument in opposition to the enhancement is that the
possession of a firearm by Stapleton could not be attributed to him as relevant
conduct. Under § 1B1.3(a)(1)(A) of the Sentencing Guidelines, a defendant’s
base offense level and specific offense characteristics are determined on the basis
of “all acts and omissions committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the defendant.” Bolden contends that
there was no “act” for purposes of § 1B1.3(a)(1)(A) because the government did
not prove the firearm was actually possessed in the bank. U.S.S.G. § 2X1.1(a),
2
Given this court’s determination that there did not need to be actual
brandishment, display, or possession of the firearm in the bank as long as intent to
engage in such conduct was established with reasonable certainty under
§ 2X1.1(a), we need not consider the defendant’s argument that the district court
failed to make an appropriate factual finding on this matter nor do we need to
address the government’s waiver argument.
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however, requires this court to examine all intended offense conduct that is
established with reasonable certainty.
To enhance Bolden’s sentence, the facts need only show that Bolden aided,
abetted, or counseled possession of the firearm pursuant to the intended robbery
plan. This is clearly established by the record. Together Bolden and Stapleton
formulated the robbery plan which included use of a firearm; Bolden instructed
Stapleton on how to enter the bank and threaten the bank teller; and Bolden does
not contest he intended that Stapleton would use the firearm in the robbery.
These facts show that Bolden aided, abetted, and counseled an attempted armed
bank robbery. Bolden is therefore liable for Stapleton’s possession of a gun
pursuant to the robbery plan. Cf. United States v. Lockhart, 37 F.3d 1451, 1454
(10th Cir. 1994) (holding quantity of drugs, even if not foreseeable to defendant,
may be attributed to him under U.S.S.G. § 1B1.3(a)(1)(A) where he “personally
participated” in the transaction by driving co-defendant to location where
transaction was to take place with knowledge that purpose of trip was to obtain
cocaine); United States v. Lambert, 995 F.2d 1006, 1008 (10th Cir. 1993)
(focusing inquiry of whether defendant is liable for co-defendant’s express threat
of death during robbery under U.S.S.G. § 1B1.3(a)(1)(A) on intent and stating “if
defendant intended that the death threat was to be made, he would then be
responsible for it under [§ 1B1.3(a)(1)(A)]”).
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Bolden also argues that conduct engaged in by a confidential informant
should not be considered an “act” within the meaning of § 1B1.3(a)(1)(A) because
the informant lacks criminal intent. We disagree. Bolden intended that a firearm
would be used to rob the bank and he counseled that act. Under the plain
language of the Sentencing Guidelines, Bolden is liable for all acts that he “aided,
abetted, counseled, commanded, induced, procured, or willfully caused.”
U.S.S.G. § 1B1.3(a)(1)(A). The fact that Bolden’s coconspirator was an
informant and therefore not criminally liable for the conduct himself does not
absolve Bolden from responsibility for an act he directly aids, abets, and counsels.
The district court therefore did not error in enhancing Bolden’s sentence five
levels for the possession of a firearm. 3
DENIAL OF A REDUCTION UNDER § 2X1.1
Bolden’s second contention on appeal is that the district court erred in not
granting him a three-level reduction pursuant to § 2X1.1(b)(1), which provides:
If an attempt, decrease by 3 levels, unless the defendant completed
all the acts the defendant believed necessary for successful
completion of the substantive offense or the circumstances
demonstrate that the defendant was about to complete all such acts
3
Having determined that Bolden aided, abetted, and counseled the
possession of a firearm under U.S.S.G. § 1B1.3(a)(1)(A), this court need not
decide whether the act of an informant which is not directly aided, abetted, or
counseled by a defendant may nevertheless be attributed to the defendant as
relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B).
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but for apprehension or interruption by some similar event beyond
the defendant’s control.
Id. § 2X1.1(b)(1).
The district court found that Bolden had “completed all of the acts which
he believed to be necessary for the successful completion of the substantive
offense” and that Bolden did nothing to interrupt the completion of the criminal
conduct. Bolden does not appear to dispute these factual findings and we cannot
say the district court’s findings are clearly erroneous. The undisputed facts
indicate that Bolden drove Stapleton to the bank, instructed him on how to
proceed with the robbery, and was merely waiting for Stapleton to return with the
money.
When a defendant has completed all acts he believes are necessary for the
successful completion of an offense, he is not entitled to a reduction under
§ 2X1.1(b)(1). See Santiago, 977 F.2d at 527 (holding defendant not entitled to
reduction under U.S.S.G. § 2X1.1(b)(1) when he had completed all acts he
believed necessary to carry out fraud); United States v. Medina, 74 F.3d 413, 418
(2d Cir. 1996) (denying reduction and stating “[t]he fact that [defendant’s]
scheme was monitored by the police from an early stage does not render him and
his co-conspirators any less accountable for arriving at the construction
company’s doorstep armed and ready to execute their [robbery] plan”); United
States v. Johnson, 962 F.2d 1308, 1313-14 (8th Cir. 1992) (finding no reduction is
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warranted when bank robberies would have been completed but for intervention
of law enforcement officers).
Bolden, however, argues that under Application Note 4 to U.S.S.G.
§ 2X1.1, the district court was required to grant him a three-level downward
adjustment in light of its enhancement of his sentence for firearm possession.
The Application Note provides:
In certain cases, the participants may have completed (or have been
about to complete but for apprehension or interruption) all of the acts
necessary for the successful completion of part, but not all, of the
intended offense. In such cases, the offense level for the count (or
group of closely related multiple counts) is whichever of the
following is greater: the offense level for the intended offense minus
3 levels (under § 2X1.1(b)(1), (b)(2), or (b)(3)(A)), or the offense
level for the part of the offense for which the necessary acts were
completed (or about to be completed but for apprehension or
interruption). For example, where the intended offense was the theft
of $800,000 but the participants completed (or were about to
complete) only the acts necessary to steal $30,000, the offense level
is the offense level for the theft of $800,000 minus 3 levels, or the
offense level for the theft of $30,000, whichever is greater.
U.S.S.G. § 2X1.1 Application Note 4.
Bolden admits that he completed all of the acts necessary for part of the
offense, attempted robbery without the use of a firearm, but contends he had not
completed and was not about to complete the acts necessary for the entire offense,
armed robbery. Bolden argues that because he was apprehended by law
enforcement officers prior to any possession of the firearm in the bank, he was
not able to control how far the offense conduct would go and therefore should not
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be responsible for Stapleton’s alleged possession of the gun in the bank.
Additionally, Bolden believes that the crime was interrupted as soon as Stapleton
disappeared from Bolden’s view. Because Stapleton no longer had any reason to
carry out the offense after leaving Bolden’s sight, Bolden contends that any
additional acts by Stapleton were meaningless and should not be attributed to him.
Based on his belief that only part of the offense was completed, Bolden
asserts that under Application Note 4 he should have received the greater of
(1) the offense level for the part of the offense for which the necessary acts were
completed or about to be completed but for the apprehension or interruption, in
this case bank robbery without use of a firearm, or (2) the offense level for the
entire intended offense, armed bank robbery, minus three levels.
Had Bolden been sentenced for robbery of a financial institution without an
enhancement for possession of a firearm, he would have an adjusted offense level
of nineteen. 4 The district court, however, applied the offense level applicable to
bank robbery with a firearm, which Bolden admits was the entire intended
offense. The resulting offense level was twenty-four. Bolden contends, however,
that because the district court sentenced him according to the entire intended
4
This includes a two-level enhancement under U.S.S.G. § 2B3.1(b)(1)(A)
because the object of the offense was the taking of property of a financial
institution. Bolden does not contest this enhancement. The adjusted offense level
also includes a three-level decrease for Bolden’s acceptance of responsibility,
pursuant to U.S.S.G. § 3E1.1(a) and (b), which the district court applied.
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offense conduct, bank robbery with a firearm, rather than just the completed
offense, bank robbery without a firearm, it was required to grant him a three-level
reduction under § 2X1.1(b)(1). Had Bolden been granted this reduction, his
adjusted offense level would be twenty-one. Because, under Application Note 4,
a defendant receives the greater of (1) the offense level for the completed
conduct, which Bolden believes is nineteen, or (2) the offense level for the
intended conduct minus three levels, which would be twenty-one, Bolden argues
that his offense level should have been twenty-one rather than twenty-four.
Bolden’s argument fails for a number of reasons. Bolden’s proposed
interpretation of Application Note 4 ignores the plain language of the § 2X1.1.
Under the guideline, a defendant’s offense level is determined based on “any
intended offense conduct that can be established with reasonable certainty.” Id.
§ 2X1.1(a). The offense level is then decreased by three levels “unless the
defendant completed all the acts the defendant believed necessary for successful
completion of the substantive offense or the circumstances demonstrate that the
defendant was about to complete all such acts but for apprehension or interruption
by some similar event beyond the defendant’s control.” Id. § 2X1.1(b)(1).
Bolden completed all acts he believed were necessary for completion of the armed
robbery. But for events beyond his control, his apprehension and the fact that his
coconspirator was an informant, the armed robbery would have been completed.
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The district court therefore did not err in basing Bolden’s sentence on the
intended offense, armed robbery, while denying him a three-level reduction.
Bolden’s argument also misconstrues Application Note 4. The note only
deals with offenses for which the defendant has completed or was about to
complete the acts necessary for part, but not all, of the intended offense. Here
Bolden had completed, or would have completed but for his apprehension and the
interruption which was beyond his control, all of the acts necessary for the entire
offense. The note therefore does not apply to Bolden’s case. Cf. Santiago, 977
F.2d at 527 (finding Application Note 4 inapplicable when defendant had
completed all acts he believed necessary for fraud, but fraud was not “partially
successful” because defendant had received none of the intended proceeds). Even
if the note did apply, however, Bolden’s sentence would be the same. The note
provides that a defendant’s offense level may be based on “the part of the offense
for which the necessary acts were completed (or about to be completed but for
apprehension or interruption).” U.S.S.G. § 2X1.1 Application Note 4. In this
case Bolden had completed, or was about to complete but for his apprehension
and the interruption, all acts necessary for an armed bank robbery. The
appropriate offense level under the completed conduct provision of Application
Note 4 therefore includes the weapon enhancement and is thus twenty-four.
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Finally, in an attempt to stretch the meaning of Application Note 4, Bolden
ignores relevant background commentary, which states:
In most prosecutions for conspiracies or attempts, the substantive
offense was substantially completed or was interrupted or prevented
on the verge of completion by the intercession of law enforcement
authorities or the victim. In such cases, no reduction of the offense
level is warranted.
Id. § 2X1.1 Background. Bolden had done everything he believed was necessary
for completion of an armed robbery. He had instructed Stapleton on how to carry
out the robbery and Stapleton had left the car in possession of a gun. As the
getaway driver, Bolden was merely waiting for Stapleton to return with the
money. Bolden’s role in the offense was substantially completed. He therefore
was not entitled to a three-level reduction.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED.
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United States v. Bolden
Court: Court of Appeals for the Tenth Circuit
Date filed: 1997-12-30
Citations: 132 F.3d 1353
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