Unpublished Disposition, 919 F.2d 146 (9th Cir. 1990)

MEMORANDUM^** 

Leon Murphy appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.) following his conviction on a guilty plea, for armed bank robbery.¹  Murphy claims the district court erred by increasing his base offense level nine levels pursuant to U.S.S.G. Secs. 2B3.1(b) (2) and 2B3.1(b) (3) because his codefendant discharged a firearm and injured a victim. Murphy argues that the adjustment was inappropriate because the government failed to show that he knew that his codefendant would use a gun in the course of the robbery. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review de novo a district court's construction of the Sentencing Guidelines. United States v. Carvajal, 905 F.2d 1292, 1294 (9th Cir. 1990). We review for clear error the factual findings that underlie a district court's sentence determination. 18 U.S.C. § 3742(e); United States v. Wills, 881 F.2d 823, 825 (9th Cir. 1989). The district court may accept a guilty plea from a defendant who simultaneously claims his innocence. North Carolina v. Alford, 400 U.S. 25, 38 (1970). When an Alford plea is offered, the trial judge must establish the factual basis of the guilty plea independent of the defendant's statements. Id. There is no practical difference, otherwise, between an Alford plea and an ordinary guilty plea. See, e.g., United States v. Roberson, No. 89-10049 (9th Cir. Oct. 23, 1990); United States v. Read, 778 F.2d 1437, 1440 (9th Cir. 1985), cert. denied, 479 U.S. 835 (1986). By entering a guilty plea, a defendant admits all the elements of a formal criminal charge and all factual allegations of the indictment. United States v. Mathews, 833 F.2d 161, 163 (9th Cir. 1987); United States v. Davis, 452 F.2d 577, 578 (9th Cir. 1971). A guilty plea precludes a reviewing court from deciding whether the requisite elements of the offense were established. United States v. Benson, 579 F.2d 508, 509 (9th Cir. 1978).

U.S.S.G. Sec. 2B3.1(b) (2) authorizes a five level increase in the base offense level for robbery "if a firearm was discharged." Section 2B3.1(b) (3) (C) authorizes a six level increase for robbery "if any victim sustained permanent or life-threatening bodily injury." Section 2B3.1(b) (3), however, limits the cumulative adjustments from (2) and (3) to nine levels. U.S.S.G. Sec. 1B1.3(a) (1) mandates application of these enhancements to "all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable." See, e.g., United States v. Garcia, 909 F.2d 1346 (9th Cir. 1990) (codefendant's possession of gun warranted enhancement even though gun was hidden and it was not shown that defendant had actual knowledge of gun's presence); United States v. Willis, 899 F.2d 873 (9th Cir. 1990) (codefendant's possession of gun warranted enhancement of defendant's sentence).

Here, Murphy drove his codefendant, Kevin Johnson, to and from the scene of an armored car heist. Murphy knew that Johnson intended to commit the robbery. Johnson shot and seriously injured the custodian of $230,000 as the custodian loaded the money onto a hand truck in front of a Wells Fargo Bank. Johnson then took the money and fled to the getaway car where Murphy waited. Although Murphy conceded that "it's reasonably foreseeable that weapons would be carried in an armed bank robbery at broad daylight," he claimed that he did not make "that particular reasonable conclusion" (RT 7/5/90 [sic] at 14).

Murphy was sentenced as a "minor participant" in an armed bank robbery.²  The facts of the crime are not contested. Murphy argues that his Alford plea to the generic charge of armed bank robbery permitted him to deny full liability for the consequences of this armed bank robbery. Nevertheless, Murphy's plea precluded him from parsing the charge into separate allegations, and required the district court to sentence him as an armed bank robber. See, e.g., Read, 778 F.2d at 1439. The district court properly established a factual basis for Murphy's plea, see Alford, 400 U.S. at 38, and we do not look beneath this finding on appeal. See Benson, 579 F.2d at 509. Murphy's conduct made him fully liable for Johnson's reasonably foreseeable actions during this armed bank robbery. See Garcia, 909 F.2d at 1350; Willis, 899 F.2d at 875. Thus, the district court correctly adjusted Murphy's base offense level. See Carvajal, 905 F.2d 1292 (9th Cir. 1990).

AFFIRMED.