Unpublished Disposition, 916 F.2d 717 (9th Cir. 1990)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 916 F.2d 717 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.James Frederick REICH, Defendant-Appellant.

No. 89-10483.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 14, 1990.Decided Oct. 17, 1990.

Before WALLACE, ALARCON and WIGGINS, Circuit Judges.


MEMORANDUM* 

James Frederick Reich challenges his sentence of 66 months imposed pursuant to the Sentencing Guidelines as the result of an improper upward departure. We have jurisdiction over Reich's timely appeal pursuant to 28 U.S.C. § 1291 (1988). We vacate Reich's sentence and remand for resentencing.

Reich planned the robbery of the Timberline Community Bank in McCloud, California. Reich then enlisted Thomas W. Metsker to commit the robbery. Reich instructed Metsker on how to rob the bank and supplied him with a ski mask and toy gun. Reich also drove Metsker to the bank. Metsker then robbed the bank. Reich took approximately one half of the robbery proceeds and drove Metsker home. Reich has an extensive criminal record including convictions for theft, attempted murder, possessing a firearm as an ex-convict and forgery. Metsker has only a minor prior criminal record.

On December 2, 1989, a grand jury charged Metsker with armed bank robbery in violation of 18 U.S.C. § 2113(a) and Reich with aiding and abetting that robbery in violation of 18 U.S.C. § 2. Pursuant to a plea arrangement Metsker pleaded guilty to armed bank robbery and agreed to cooperate with the investigation and prosecution of Reich. In return for that cooperation, the government subsequently moved for the sentencing court to depart downwardly. See United States Sentencing Guidelines Sec. 5K1.1 (government may move for downward departure if defendant has provided substantial assistance in investigation or prosecution of another suspect). The sentencing court accepted that motion and sentenced Metsker to 18 months imprisonment.

On February 23, 1989, Reich pleaded guilty to a superseding indictment charging him with armed bank robbery in violation of 18 U.S.C. § 2113(a). Following Reich's objection to the presentence report, the sentencing court assigned Reich a one-level upward departure based on Reich's role in the robbery and imposed a sentence of 66 months imprisonment.

Although we review a sentencing court's application of the Guidelines de novo, we will not overturn its factual determinations unless they are clearly erroneous. United States v. Drabeck, 905 F.2d 1304, 1305 (9th Cir. 1990).

Reich first contends that the sentencing court wrongfully "upwardly departed" after it found that Reich played an "aggravating role" in the robbery. From the outset it is helpful to recognize that this is not an upward departure case. Upward departure cases involve a departure from an established Guideline range after the offense level has been set. See, e.g., United States v. Richison, 901 F.2d 778, 780 (9th Cir. 1990); United States v. Montenegro-Rojo, No. 89-50134, slip op. 7039, 7044 (9th Cir. July 11, 1990).

In this case, the sentencing court did not upwardly depart from the Guideline range established by Reich's offense level--it increased his offense level by one level. See, e.g., United States v. Lofton, 905 F.2d 1315, 1317 (9th Cir. 1990); United States v. Restrepo, 903 F.2d 648, 652 (9th Cir. 1990). That increase resulted in a longer sentence, albeit one within the Guideline range for that offense level.1  The sentencing court enhanced Reich's offense level:

for what the law would call an aggravating role in the offense, not serious enough to amount to a leadership role, but greater than that of a co-equal, since the Court believes that the defendant influenced the codefendant to commit the offense, and that the codefendant was less sophisticated with respect to this than the defendant."

The Guidelines in Adjustments, Part B, Sec. 3B1.1-3B1.4, account for a defendant's role in committing an offense. The only provision which may possibly apply to Reich in Part B is section 3B1.1(c) which permits an enhancement in the offense level:

If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by two offense levels.

However, the sentencing court explicitly found that the circumstances of this case fell short of the enhancement permitted by section 3B1.1(c).

Thus, the issue in this case is whether the sentencing court properly enhanced Reich's offense level due to a finding that Reich played an aggravating role in the commission of the offense, but not a role aggravating enough to qualify for enhancement pursuant to section 3B1.1. A plain reading of the Guidelines prohibits such an enhancement. The Guidelines specifically state in section 3B1.4 that " [i]n any other case, [except for those enumerated in section 3B1.1-3B1.3] no adjustment is made for role in the offense." U.S.S.G. Sec. 3B1.4; see also United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990) (section 3B1.4 of the Guidelines provides, in any other case other than those specified in Part 3B, "no adjustment is made for the role in the offense"). Because the sentencing court explicitly found that Reich's behavior fell short of the "leadership role" required for enhancement in section 3B1.1, we vacate Reich's sentence due to an improper one level enhancement and remand for resentencing. Although it is disturbing to vacate a sentence even though its numerical result could have been properly obtained by an upward departure from Reich's base offense level, the Guidelines clearly bar the offense level adjustment imposed upon Reich.

We vacate Reich's sentence on the ground that the district court improperly assigned a one level enhancement of his offense level and remand for resentencing.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Without the one level enhancement for his offense level, Reich would have been subject to imprisonment for 51 to 63 months. With the one level enhancement, Reich received 66 months

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.