United States v. Johnson ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 02-50618
Plaintiff-Appellee, D.C. No.
v.  CR-00-00226-
EDWARD B. JOHNSON, LGB-01
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
Lourdes G. Baird, District Judge, Presiding
Argued June 7, 2004
Submitted April 13, 2006
Pasadena, California
Filed April 13, 2006
Before: Stephen S. Trott, Pamela Ann Rymer, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Trott
4105
UNITED STATES v. JOHNSON 4107
COUNSEL
Mary E. Kelly, Deputy Federal Public Defender, Los Angeles,
California, for the defendant-appellant.
4108 UNITED STATES v. JOHNSON
Cheryl O’Connor Murphy, Assistant United States Attorney,
Los Angeles, California, for the plaintiff-appellee.
OPINION
TROTT, Circuit Judge:
For his role as the getaway driver in a bank robbery,
Edward Johnson was convicted of one count of conspiracy to
commit bank robbery and one count of bank robbery. He was
sentenced to 165 months in prison, well within the 240
months statutory maximum for the crimes of conviction.
Drawing our attention to an array of errors, he appeals both
the conviction and his sentence. We have jurisdiction pursu-
ant to 28 U.S.C. § 1291. We affirm his conviction, but vacate
his sentence and remand for plenary resentencing.
I
On February 23, 2000, Johnson drove the getaway car in a
carefully planned bank robbery, which was executed by
accomplice co-defendants Charley Robinet and Marcus Tim-
mons. During the week before the robbery, Johnson rented
two cars, a Dodge Neon and a Lincoln Navigator. Robinet
was with him when he rented the Navigator. The day before
the crime, Johnson, Robinet, and Timmons left the smaller
Neon in a parking lot several blocks from the bank they
intended to rob. On the day of the robbery, they drove to that
lot, parked the Navigator, and piled into the Neon. Johnson
then drove the Neon to the rear of the bank, where he dropped
off Robinet and Timmons, armed respectively with a handgun
and a rifle, and wearing matching denim overalls and ski
masks.
While Johnson stayed with the Neon, his accomplices
entered the bank from the rear and ordered everyone to the
UNITED STATES v. JOHNSON 4109
floor. Timmons guarded the lobby with the rifle. Robinet
jumped the counter and demanded money from a teller, Ali
Sabzi. Robinet then dragged Sabzi to the vault area. Upon
learning Sabzi did not have the key to access the vault, Robi-
net pistol-whipped and kicked him. From this attack, Sabzi
received bruises, rug burns, and a head laceration requiring
stitches. Robinet independently proceeded to force the bank
manager, Kristie Inglis, to open two vaults at gunpoint. Robi-
net had Inglis place the cash in a bag, and he and Timmons
fled out the front door where Johnson was waiting for them
in the Neon, which Johnson testified was barely large enough
for him and his daughter.
A high speed chase ensued. The three managed to elude
authorities long enough to get to the Navigator and switch
vehicles as planned. Not deceived by the robbers’ chicanery,
the authorities continued their pursuit. With Johnson again at
the wheel, the Navigator collided with a number of vehicles
and fled at dangerous speeds until a spike strip placed across
the freeway blew out the tires, enabling authorities to appre-
hend the trio.
Procedural History
Johnson initially pleaded guilty to the three counts con-
tained in the original indictment. He then successfully moved
to withdraw that plea. Next, a grand jury returned a supersed-
ing indictment charging Johnson with: (1) conspiracy to com-
mit bank robbery, 18 U.S.C. § 371; (2) armed bank robbery,
18 U.S.C. § 2113(a), (d); and (3) brandishing a firearm during
a crime of violence, 18 U.S.C. § 924(c). Johnson admitted
being involved in the crime, but went to trial to contest the
portion of the charges relating to the use of firearms.
At trial, over Johnson’s objection, the government submit-
ted a lesser included instruction to the jury on the second
count, giving the jurors the option of convicting Johnson of
the lesser offense of bank robbery if they could not reach a
4110 UNITED STATES v. JOHNSON
unanimous guilty verdict on the “armed” element of that
count. The jury failed to reach a unanimous verdict on count
3, which charged brandishing of a firearm, or on the armed
element of count 2, so they returned guilty verdicts on only
count 1 and on the lesser included (unarmed) bank robbery on
count 2.
Johnson then moved for acquittal on count 3 pursuant to
Rule 29. Fed. R. Crim. P. 29. The court denied his motion and
granted the government’s motion to dismiss count 3 “without
prejudice.”
Johnson was sentenced in a pre-Blakely/Booker setting —
wherein the Sentencing Guidelines were regarded as manda-
tory — to 165 months imprisonment, 3 years supervised
release, and a $200 mandatory special assessment. Johnson
had zero criminal history points. His sentence was enhanced
(1) six levels for using a firearm, (2) two levels for bodily
injury, and (3) two levels for physical restraint. The court
denied his request for a reduction for acceptance of responsi-
bility.
Johnson appeals the denial of his Rule 29 motion for
acquittal on count 3, brandishing a firearm during a crime of
violence, claiming that the jury’s failure to convict on that
count amounted to an implicit acquittal. He argues from this
asserted premise that principles of double jeopardy and collat-
eral estoppel require the dismissal with prejudice of the
§ 924(c) charge. He argues similarly that application of a sen-
tencing enhancement for using a firearm during commission
of the crime was improper because the jury did not convict on
the gun elements of the indictment. In support of this argu-
ment, he relies again on double jeopardy and collateral estop-
pel. He appeals separate sentencing enhancements for bodily
injury and physical restraint, arguing that they amounted to
impermissible “double counting.” Lastly, he argues that he
was entitled to a three-level reduction for acceptance of
UNITED STATES v. JOHNSON 4111
responsibility, claiming that the court’s denial of this benefit
was punishment for going to trial.
II
We review the denial of Johnson’s motion for acquittal pur-
suant to Rule 29 de novo. United States v. Somsamouth, 352
F.3d 1271, 1274-75 (9th Cir. 2003).
III
Motion for Acquittal
When the jury could not agree to a verdict on the charge of
brandishing a firearm, Johnson moved for acquittal pursuant
to Rule 29. In turn, the government successfully moved for
dismissal without prejudice. In our de novo review of the
denial of Johnson’s motion, “we review the evidence pre-
sented against [Johnson] in the light most favorable to the
government to determine whether any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Somsamouth, 352 F.3d at 1274-75 (inter-
nal quotation marks and citation omitted).
[1] Convictions for the use of firearms during the commis-
sion of certain felonies pursuant to 18 U.S.C. § 924 may be
supported under a conspiracy theory. United States v. Cas-
taneda, 9 F.3d 761, 765 (9th Cir. 1993), overruled on other
grounds, United States v. Nordby, 225 F.3d 1053 (9th Cir.
2000); United States v. Johnson, 886 F.2d 1120, 1123 (9th
Cir. 1989). The record here reveals ample evidence to support
the charge that guns were used during the course of the bank
robbery, and that it was reasonably foreseeable to Johnson
that they would have been. Evidence showed that all three of
the robbers participated in the detailed planning for this crime.
The jury was presented with evidence that upon entry and
exit, Robinet and Timmons were wielding the weapons in an
obvious fashion. The Neon used to approach and leave the
4112 UNITED STATES v. JOHNSON
bank was very small, so it is unlikely that Johnson had not
noticed that one of his confederates was carrying a rifle,
which was most probably transferred from the Navigator to
the Neon in Johnson’s presence. Based on these facts, a ratio-
nal trier of fact could have found the essential elements of the
§ 924(c) charge beyond a reasonable doubt, as evidenced by
the jury’s votes. Some of the jurors, at least, were not con-
vinced of his lack of guilt. Moreover, the jury did not return
a verdict on the armed element of Count 2 or the charge of
brandishing a firearm on Count 3. In simple terms, and con-
trary to his argument, Johnson was not acquitted of these
charges, and he was therefore not entitled to a dismissal with
prejudice of the § 924(c) charge on double jeopardy or collat-
eral estoppel grounds. Thus, the denial of the motion for
acquittal was proper, and the question of the ultimate disposi-
tion of this charge remains open on remand.
Sentencing — Calculation of Sentence1
[2] Now that the dust generated by the Supreme Court’s
decision in Blakely v. Washington, 542 U.S. 296 (2004) has
been mostly settled by United States v. Booker, 543 U.S. 220(2005) and United States v. Ameline, 409 F.3d 1073 (9th Cir.
2005) (en banc), it is clear that Johnson’s sentence is defec-
tive. The jury convicted him of conspiracy to commit
unarmed bank robbery and the lesser included offense of
unarmed bank robbery, but the jury returned no findings of
fact with respect to three factors stemming from the reason-
ably foreseeable conduct of his accomplices which the court
used on the basis of clear and convincing evidence to enhance
his sentence: (1) the use of a weapon,2 (2) the infliction of
bodily injury upon a victim,3 and (3) the physical restraint of
1
Because we remand for plenary resentencing before a new judge, a
review of Judge Baird’s decision not to award credit for acceptance of
responsibility is no longer appropriate.
2
U.S.S.G. § 2B3.1(b)(2).
3
U.S.S.G. § 2B3.1(b)(3).
UNITED STATES v. JOHNSON 4113
the victims.4 Ordinarily, under the authority of Ameline, we
would simply remand Johnson’s sentence “for the purpose of
ascertaining whether the sentence imposed would have been
materially different had the district court known that the Sen-
tencing Guidelines were advisory.” Ameline, 409 F.3d at
1074. Here, however, Judge Baird has retired. Accordingly,
we must vacate Johnson’s sentence and remand for a full
resentencing hearing before a new judge and imposition of a
new sentence. United States v. Sanders, 421 F.3d 1044, 1052
(9th Cir. 2005).
[3] We note, however, that neither principles of double
jeopardy nor collateral estoppel nor Ameline and Booker
would preclude the district court on resentencing from appro-
priately considering factual allegations that Johnson is respon-
sible for the use of weapons during the robbery, as well as
bodily injury and physical restraint. United States v. Watts,
519 U.S. 148, 157 (1997) (“[A] jury’s verdict of acquittal
does not prevent the sentencing court from considering con-
duct underlying the acquitted charge . . . .”).5
Conviction AFFIRMED. Sentence VACATED AND
REMANDED.
4
U.S.S.G. § 2B3.1(b)(4).
5
Johnson’s argument that the rule against “double convicting” prevents
the sentencing court from relying on both bodily injury and physical
restraint as separate conduct has no merit. The robbers’ conduct here with
respect to different victims would support consideration of both factors.
United States v. Fisher, 132 F.3d 1327, 1328-29 (10th Cir. 1997).