United States of America, Plaintiff-appellee, v. Michael Anthony Barker, Defendant-appellant, 972 F.2d 1343 (9th Cir. 1992)

Before WALLACE, Chief Judge, GOODWIN, Circuit Judge, and LEVI, District Judge.^** 

MEMORANDUM^*** 

Appellant Michael Anthony Barker pleaded guilty to one count of bank robbery under 18 U.S.C. § 2113(a). Although § 2113(a) provides a maximum penalty of 20 years in prison, Barker asserts that the maximum sentence he could receive for this offense is 12 years under 18 U.S.C. § 3581(b). He appeals from the district court's sentence of 189 months. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291. We affirm.

The issue presented is a legal question subject to de novo review. United States v. Keene, 933 F.2d 711, 712 (9th Cir. 1991).

Barker argues that the maximum sentence for bank robbery is twelve years under 18 U.S.C. §§ 3559 and 3581(b). Under § 3559(a) (3), bank robbery is classified as a Class C felony, because it is an offense which is not specifically classified by letter grade and bears a maximum sentence of "less than 25 years but ten or more years." Barker reasons that since the authorized maximum term of imprisonment for a class C felony is twelve years under 18 U.S.C. § 3581(b) (3), twelve years is the maximum term for bank robbery despite Congress's provision for a maximum sentence of twenty years in § 2113(a).

This argument ignores 18 U.S.C. § 3559(b), which provides:

An offense classified under subsection (a) carries all the incidents assigned to the applicable letter designation, except that the maximum term of imprisonment is the term authorized by the law describing the offense.

Id. § 3559(b) (emphasis added). This language could scarcely be clearer. Under its terms, the maximum sentence under 18 U.S.C. § 2113(a) is that prescribed in the section describing the offense--twenty years imprisonment.

We recently rejected the same argument advanced here by Barker in United States v. Schiffbauer, 956 F.2d 201 (9th Cir. 1992). Schiffbauer held that the maximum sentence for bank robbery is 20 years under § 2113(a) rather than 12 years as a Class C offense under § 3581(b). See also United States v. LaFleur, 952 F.2d 1537 (9th Cir. 1991) (holding that § 3581 was not intended to modify established statutory sentences). The Second and Third Circuits similarly reject the argument Barker proffers. See United States v. Gonzalez, 922 F.2d 1044, 1050 (2nd Cir. 1991) (assignment of letter classification to existing statutory offenses does not require the imposition of a sentence according to the letter classification of § 3581); United States v. Donley, 878 F.2d 735 (3rd Cir. 1989) (holding that § 3581 applies only to offenses for which Congress assigns a letter in the statute creating the offense).¹ 

For the reasons stated in Schiffbauer and because Congress has not yet enacted a letter-grade system of offenses, "s 3581 is inapplicable to the existing bank robbery offense." Schiffbauer, 956 F.2d at 203.

For similar reasons we reject Barker's second argument that 28 U.S.C. § 994(h) requires that he be sentenced to a term of no more than 12 years. Section 994(h) provides, in relevant part, that the Sentencing Commission should "assure that the [career offender] guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized." Barker contends that the phrase "maximum term authorized" in § 994(h) refers to the maximum term in 18 U.S.C. § 3581(b) rather than to the statutory maximum in the law describing the offense. Barker concludes that the career offender provision of the United States Sentencing Commission, Guidelines Manual § 4B1.1 (Nov.1990), violates § 994(h) because it does not rely on § 3581(b).

There is no merit to this reasoning. Section 994(h) refers to the "maximum term authorized." As discussed in the preceding section, the "maximum term of imprisonment is the term authorized by the law describing the offense." 18 U.S.C. § 3559(b). The authorized terms in 18 U.S.C. § 3581(b) only become relevant if Congress assigns a letter designation within the statute creating the offense.²  Thus, the Sentencing Guideline correctly concludes that the language "maximum term authorized" in § 994(h) refers to the statutory maximum in the law describing the offense. See § 4B1.1, Comment. There is no inconsistency between a natural reading of the language in § 994(h) and Sentencing Guideline § 4B1.1.

A fair consideration of the legislative history also provides no support for Barker's contention. Barker quotes a footnote from the Senate Report concerning § 994(h) that refers to the maximum sentences set forth in § 3581(b). S.Rep. No. 225, 98th Cong., 1st Sess. 114, n. 269 (1983). In context, the reference suggests no more than that § 994(h) refers to the maximum sentences in § 3581(b) when the statute creating the offense contains a letter classification.

AFFIRMED.