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Sheldon J. Sperling, Asst. John Raley, U. The appellants claim that the trial judge improperly departed upwards from the Sentencing Guidelines in passing sentence. Baird makes the additional claim that he was wrongfully deprived of notice of the trial judge's intention to depart upward prior to such departure from the Sentencing Guidelines. Although they have appealed separately, due to overlap of the issues and the underlying facts of the cases involving one trial, we shall address both appellants' claims in this one opinion.
The three co-conspirators proceeded with the robbery as planned. Baird and Pool remained in Baird's car and parked near the bank while Taylor, the juvenile, entered the bank and presented a robbery note to a teller. The teller asked Taylor if she was serious and Taylor responded by pulling back her jacket and pointing to her chest as if concealing a gun.
The teller then said that she had no money, but would give the note to someone who did. Taylor said to forget it and left the bank to meet the appellants and drive away. Baird was driving the car, and Pool had written out the note. The teller asked Taylor if she really wanted to do this and Taylor said yes. The three then left town in Baird's automobile. Also found, in Taylor's jacket, was a toy cap pistol. The presentence report PSR for Pool recommended a total offense level of 23 with a criminal history category of I for a total sentencing range of 46 to 57 months.
Baird's PSR recommended the same offense level of 23 as for Pool, but with his criminal history category of III, the total sentencing range was from 57 to 71 months. The PSR recommendations for both Baird and Pool included several adjustments: a two level enhancement for robbery of a financial institution under Sec.
Pool filed an objection to the PSR, stating that the dangerous weapon enhancement was not warranted as there was no evidence before the court that Pool knew or should have known that Taylor had a dangerous weapon. Baird made a similar objection to the PSR, but also advanced the additional argument that a toy pistol should not be considered a dangerous weapon. The addenda stated that both Pool's and Baird's fingerprints were on both robbery notes. The addenda Fuck for free Antlers Oklahoma stated that for approximately four days immediately prior to the robbery and attempted robbery, the three conspirators had stayed in the same hotel room.
Under these circumstances, the PSRs suggested that it was "unbelievable" that Pool and Baird could not have known about the toy gun. At the sentencing hearing the district judge announced that he was going to depart upward from the Guidelines under U. III R. The judge stated that the departure was due to the two adults' involvement of the juvenile, Taylor, in the robbery. Thus, Baird received 71 months, the maximum sentence within his guidelines range, plus an upward departure of 60 months for a total of months.
Pool received 57 months, the maximum sentence for her guidelines range, plus an upward departure of 60 months for a total of months. On appeal, Pool and Baird both argue that the district court erred in making its departure upwards. Baird also argues that he was improperly not notified of the judge's intention to depart upward until the sentencing hearing.
Pool also argues that the district court erred in failing to sustain her objection to the dangerous weapon enhancement made under Sec. We address these issues in reverse order. First, we turn to the contention that the district court erred in upwardly adjusting Pool's and Baird's offense levels under Sec.
We review factual Fuck for free Antlers Oklahoma underlying upward adjustments with deference, overturning them only upon a determination that the findings were clearly erroneous or without factual support in the record such that our review leaves us with the firm and definite conviction that a mistake has been made.
United States v. Beaulieu, F. Section 2B3. The district judge found, after both counsel had addressed the issue, that by a preponderance of the evidence the PSRs' recommendations to enhance by three points were correct. The PSRs indicated that the bank robbery notes presented in Hugo and in Antlers threatened violence from a firearm. Pool and Baird testified at the presentencing hearing that Pool had written the robbery note for the successful Antlers robbery. Pool's and Baird's fingerprints were found on both robbery notes.
Baird testified that Taylor had a toy cap gun with her when she entered the Antlers bank. At the Hugo bank, Taylor pointed to part of her jacket to indicate the presence of a gun. When the three coconspirators were arrested soon after the Antlers robbery, the toy gun was found in Taylor's jacket.
We, therefore, find no error in the trial court's upward adjustment under Sec. The second claim of error is that no notice of departure was given prior to the 60 months' upward departure from the Guidelines. This claim is argued only by Baird. Here the PSRs specifically stated that there were no factors that may warrant departure. The trial judge stated at the presentencing hearing that departures were seldom made with any success and that he would decide whether to depart.
At the presentencing hearing, there was no other discussion of departure, nor of any possible reasons for an upward departure for the appellants. At the sentencing hearing, however, the judge told Pool and Baird that he intended to depart upward by 60 months on of the juvenile's involvement in the crimes.
The judge then offered some time to Baird's counsel, stating it was permissible "if you want to have a seat at counsel table and talk with your client. The judge told counsel for Baird and Pool:.
I just wanted to tell you that in advance so that will give you an opportunity. I haven't heard what you have to say, but I certainly will. And I haven't sentenced either of them at this time so I just want to give you that advantage, so you might want to talk with both of them, and then we can proceed.
We note that neither counsel for Baird nor for Pool made any request for additional time or a continuance at the sentencing hearing. Baird's counsel simply asked "to have a few minutes and possibly go across the hall and we [Baird and counsel] can sit down at a table and discuss this Counsel for Pool was asked by the court, "Have you had sufficient time to discuss this with your client, or do you need additional time in which to prepare and submit evidence, or is there anything else you need to do preparatory to sentencing?
No objection to the court's procedure was made by either counsel and there was no request for a continuance. In these circumstances the claim of error due to lack of notice of departure is not persuasive. However, since we are obliged to remand these cases for the district judge to state the reasons for the extent of the departure, as explained below, the court should give notice in advance of resentencing of any departure contemplated and afford an opportunity to the parties to address the matter of departure.
A recent decision of the Supreme Court, Burns v. United States, U. The Supreme Court expressed no opinion on the timing of the reasonable notice required, leaving this matter to the lower courts which remain free to adopt local rules on this procedure. After Burns, we must be sensitive to the matter of affording notice. The final claim of error to be addressed is that the district court erred in making the upward departure from the Sentencing Guidelines, adding 60 months to the sentences of Pool and of Baird.
The appellants both argue that the record contains no factual basis for the district court's findings which served as a basis for the departure. In the alternative, the appellants argue that the degree of departure was not adequately explained by the judge. A district court's decision to depart from the Guidelines is reviewed in a three step analysis. First, this court must determine whether the circumstances cited by the district court justify departure. Second, we must review the district court's factual determinations under the clearly erroneous standard. Finally, we must Fuck for free Antlers Oklahoma the reasonableness of the degree of departure.
Julian, F. White, F. The district judge cited the appellants' involvement of a 16 year old juvenile in the bank robberies Fuck for free Antlers Oklahoma the basis for departure, stating that the defendants "used a juvenile in perpetrating the crime, and if they did not send her in then they at least allowed her to go in, and she was a part of it, and it endang [ere]d her life.
The judge also noted that the involvement of a juvenile in a robbery is an aggravating circumstance which was not considered in the formulation of the Sentencing Guidelines. The appellants argue that there is inadequate evidence in the record to support a finding that Pool and Baird exercised any coercion or influence over Taylor to involve her in the robbery. The district judge, however, said only that the circumstances requiring departure were that "if they [Pool and Baird] did not send her [Taylor] in, they at least allowed her to go in.
The judge found the involvement of the juvenile to be especially egregious because she, as the only robber to actually enter the bank, was the only one in serious danger of being killed by a bank guard.Fuck for free Antlers Oklahoma
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