Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

MEMORANDUM^** 

Chambers appeals from the sentence he received after pleading guilty to one count of conspiracy to embezzle funds from a federally insured bank. The district court upwardly departed from the sentencing guidelines after finding that Chambers and an unindicted co-conspirator had used a firearm to steal the proceeds of the embezzlement from one of their co-conspirators. The sole issue raised on appeal is whether the district court erred in finding that Chambers had been a party to the armed robbery. We conclude that the district court's findings were not clearly erroneous, and affirm.

When a district court upwardly departs from the sentencing guidelines, we review for clear error the factual circumstances relied on for departure. United States v. Martinez-Duran, 927 F.2d 453, 455 (9th Cir. 1991) (citing, United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 110 S. Ct. 177 (1989)).

Facts in the record support the district court's finding that Chambers and the unindicted co-conspirator used a firearm to take the proceeds of the embezzlement. The undisputed facts in the presentence report indicate that Chambers conspired with Corinna Wilde to embezzle the funds in question. The plan called for Chambers to pick up Wilde at the bank after she had removed the cash from the vault. Chambers was to drive a car owned by the unindicted co-conspirator, Carlton Greer. Wilde was then supposed to buy Greer's car with some of the embezzled funds. However, when Chambers and Greer picked Wilde up, Greer pulled a nine millimeter pistol, and ordered Wilde to surrender a large portion of the money. Wilde gave him $250,000 of the $351,200 in cash she had removed from the bank and kept the remainder. Chambers and Greer dropped Wilde off near her residence, and then split the proceeds in an unknown proportion. In his presentence report and at the time of sentencing, Chambers denied that he had any prior knowledge that Greer planned to rob Wilde. He also denied any involvement in the armed robbery beyond accepting part of the proceeds.

The district court heard argument as to whether a four-point upward departure was warranted due to the use of a firearm in carrying out the armed robbery of Wilde. An "abettor's criminal intent may be inferred from the attendant facts and circumstances and need not be established by direct evidence." United States v. Reese, 775 F.2d 1066, 1072 (9th Cir. 1985). The district court considered the evidence that Chambers was the driver of Greer's car, that Greer did not order Chambers out of the car when Wilde was released, and that Chambers shared in the fruits of the robbery with Greer. From these facts the district court inferred that Chambers was a willing participant in the robbery.

AFFIRMED.