Opinion
No. CR89-0021.
January 14, 1999.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to the defendant's April 23, 1997, petition pursuant to 28 U.S.C. § 2255. By order dated July 23, 1998, this matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the petition be denied.
NATURE OF THE CASE
On September 27, 1989, the defendant, Barton Ray Crandall, was charged in an eight-count indictment. He was charged in Count 1 with robbery of the Norwest Bank of Newhall, Iowa, on April 25, 1989, in violation of Title 18 U.S.C. § 2113(d). In Count 2 he was charged with the July 19, 1989, robbery of the Atkins Savings Bank and Trust in violation of Title 18 U.S.C. § 2113(d). In Counts 3 and 4 he was charged with using and carrying a firearm during and in relation to the bank robberies charged in Counts 1 and 2 respectively. Count 5 charged the defendant with being a felon in possession of a firearm. Count 6 charged the defendant with possessing a firearm which had not been registered to him in the National Firearms Registration and Transfer Record. Count 7 charged a conspiracy to commit armed bank robbery, to use a firearm during the commission of a violent felony, to possess a firearm by a convicted felon, and to possess an unregistered sawed-off shotgun. Count 8 charged him with the possession of marijuana. Count 8 was severed out. The defendant pleaded guilty to Count 5 of the Indictment.
The case was tried to a jury commencing on January 23, 1990. It was submitted to the jury for deliberations on February 2, 1990. That same day, the jury returned a verdict finding the defendant guilty of the crimes charged in Counts 1, 2, 3, 4, 6, and 7. The defendant was sentenced on April 2, 1990, to a term of imprisonment of 262 months for each of Counts 1 and 2 to be served concurrently, 60 months for Count 3 to be served consecutively, 240 months for Count 4 to be served consecutively, 120 months for Count 5 to be served concurrently with Counts 1 and 2, 120 months for Count 6 to be served concurrently with Counts 1, 2, and 5, 60 months for Count 7 to be served concurrently with Counts 1, 2, 5 and 6.
The defendant appealed. In his appeal he argued that the trial court erred in excluding the testimony of a police officer who was called as a witness by the defendant. He further alleged plain error in the government's cross-examination of the defendant and in the introduction of certain evidence. He appealed the imposition of five and 20-year consecutive sentences received under Counts 3 and 4. He also appealed his sentences under Counts 1 and 2 and alleged that his codefendant received a disproportionately lower sentence. The Court of Appeals noted that the codefendant was not the ringleader or a career offender and that he cooperated with the government, pleaded guilty, and accepted responsibility for his actions. Accordingly, the Court of Appeals found that the defendant's sentence did not violate the Eighth Amendment.
Crandall's § 2255 Petition
In this petition, the defendant alleges that his consecutive sentences for violation of 18 U.S.C. § 924(c)(1) violate the Double Jeopardy Clause of the United States Constitution. Second, he alleges that there is no evidence that he used or possessed a firearm during either of the bank robberies. Third, the defendant alleges that he is not a career offender and that the district court improperly failed to depart downward from his Guidelines sentence. Finally, the defendant alleges that his attorney was ineffective for his failure to object to the § 924(c) jury instruction.
Double Jeopardy
The defendant contends that because he was convicted in one proceeding on two violations of 18 U.S.C. § 924(c)(1) he was punished twice for the same offense. He contends that he was sentenced twice for convictions that arose out of the same proceeding and not in a "second" or "subsequent" proceeding. This argument is the subject of procedural default for failure to raise it with the related argument concerning an Eighth Amendment violation made on his direct appeal.
Aside from the issue of procedural default, the claim must fail on its merits. Pursuant to 18 U.S.C. § 924(c)(1):
In the case of his second or subsequent conviction under this subsection, such persons shall be sentenced to imprisonment for 20 years. . . .
It is now settled in this circuit that the second of two § 924(c) convictions from the same indictment qualifies for the 20-year consecutive sentence. United States v. Mabry, 3 F.3d 244, 249 (8th Cir. 1993). Further, there is no violation of the Double Jeopardy Clause. With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359 (1983). The plain language of § 924(c) shows that the 20-year term is to be imposed upon the defendant's second or subsequent conviction. Congress' intent is clear. The statute does not refer to a second or subsequent proceeding as the defendant argues, but rather refers to a second or subsequent conviction.
Use or Possession of A Firearm
The defendant contends that § 2255 relief is required under Counts 3 and 4 of the Indictment because he did not use or carry the firearms in question during and in relation to the crimes of bank robbery. This challenge should be rejected on its merits. The defendant contends that after Bailey v. United States, 516 U.S. 137 (1995), a person cannot be convicted of using or carrying a firearm pursuant to 18 U.S.C. § 924(c) unless the defendant himself physically used or carried the weapon. Here, the record is uncontradicted that the codefendant carried the firearm in both bank robberies.
The law is clear that Bailey did not alter the government's ability to charge a § 924(c) offense under an aiding and abetting theory or a theory of coconspirator liability. As the Eighth Circuit Court of Appeals recently stated:
We have recognized that a defendant who did not personally use or carry a firearm may be guilty of violating § 924(c)(1) under an aiding and abetting theory . . . and have recently held that Bailey does not preclude the continued application of a coconspirator theory of liability to § 924(c)(1) offenses.Barrett v. United States, 120 F.3d 900, 901 (8th Cir. 1997); United States v. Rodger, 100 F.3d 90, 91 n. 2 (8th Cir. 1996). Defendant Crandall was indicted on an aiding and abetting theory for each of the § 924(c) counts. The court instructed the jury properly on the theory of aiding and abetting in Instruction 7 and specifically told the jury that it applied to Counts 3 and 4. The Bailey decision in fact has little significance to this matter as the evidence affirmatively demonstrated that the codefendant both used and carried the firearm during and relation to both of the bank robberies charged. For all these reasons, the Bailey decision provides no relief for this defendant.
Other circuits are in accord. See Rattigan v. United States, 151 F.3d 551 (6th Cir. 1998); Wright v. United States, 139 F.3d 551 (7th Cir. 1998); United States v. Sorrells, 145 F.3d 744 (5th Cir. 1998); United States v. Wainuskis, 138 F.3d 183 (5th Cir. 1998); United States v. McDonald, 150 F.3d 1301 (10th Cir. 1998).
See Muscarello v. United States, 118 S. Ct. 1911 (1998).
Career Offender and Refusal to Depart Downward
The defendant was sentenced as a career offender because he met all of the characteristics for that status. Further, although the defendant notes that the Guidelines did not list burglary as a crime of violence, he takes no issue with the fact that subsequent case law has unequivocally demonstrated that burglary is a crime of violence for career offender status purposes. He contends that career offender status coupled with consecutive sentences under § 924(c)(1) resulted in a substantially disproportionate sentence. He again compares his sentence to that of the codefendant who cooperated and received a reduced sentence.
The defendant suggests that the trial court was unaware of its power to depart downward with regard to career offender guidelines. However, the trial court stated at the time of sentencing:
This Defendant fits the definition of career offender under the guidelines. To depart downward from the guidelines would be to depreciate unwarrantedly the effect of that career offender designation that he has earned by his prior convictions, and I believe it would be contrary to the tenor of 994(h), and so I decline to exercise my discretion to depart downward from the Level 34, Category 6, position that the Defendant finds himself in because of his designation as a career offender. (emphasis added).
Because the court recognized its discretion to depart downward, the court's refusal to depart is unreviewable on appeal. Further, this issue was raised in the district court and resolved on direct appeal and the defendant has cited no authority for the proposition that it can now be revisited.
The defendant states that there is a high likelihood that the district court would exercise its power to downward depart, particularly in light of the defendant's actual criminal history. This assertion is rejected by an examination of the record. Again, the trial court stated:
There's no doubt that this conduct by Mr. Crandall was very serious criminal conduct and is deserving of very severe punishment. The risk that innocent people were put to by his conduct was very apparent, and this crime of armed bank robbery is one that traditionally has received a very serious treatment by sentencing courts. . . .
Sent. Tr. at p. 102 (emphasis added). Accordingly, the record affirmatively shows that the court considered the defendant's request for a departure, exercised its discretion not to depart, and stated that the defendant was deserving of very severe punishment. Under these circumstances, the defendant cannot show that the trial court erred, that counsel was ineffective, or that any other appellate review could have been successful.
Ineffective Assistance of Counsel, Failure to Object to Jury Instructions
This portion of the § 2255 motion was never briefed. However, this court does not believe that the defendant can show that counsel was ineffective for failing to anticipate the Bailey decision and object to the § 924(c) instructions. More importantly, as noted above, Bailey would provide no relief for this defendant as the record overwhelmingly demonstrates that the firearms associated with the bank robberies were both used and carried during and in relation to these crimes of violence. Again, the defendant was properly indicted and convicted on an aiding and abetting theory.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b) within thirty (30) days of the service of a copy of this report and recommendation, the petition for § 2255 relief be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).
Ordinarily, the rules provide for ten days. However, due to the withdrawal of defense counsel from the practice of law, the court has appointed the Public Defender to represent him by contemporaneous order filed herein. In accepting the appointment, the Public Defender requested time to become acquainted with the record in this matter.