United States v. Carr, No. 12-50082 (9th Cir. 2014)
Annotate this CaseDefendants Carr, Anderson, and Franklin appealed their convictions and sentences for three counts related to the armed robbery of a federal credit union. The government cross-appealed defendants' sentences. The court concluded that: (1) if the district court vacated Anderson's conviction for false accompaniment under 18 U.S.C. 2113(e), it erred and the court reversed this portion of the judgment and granted the government's cross appeal; (2) if the district court vacated Franklin's conviction for false accompaniment under section 2113(e), it erred and the court reversed this portion of the judgment and granted the government's cross-appeal; (3) the government's cross-appeal regarding Franklin's gun conviction under 18 U.S.C. 924(c) and corresponding sentencing enhancement under section 2113(d) is denied; (4) on remand, the district court shall enter a corrected judgment reflecting its acquittal of Franklin on the section 924(c) gun charge and the section 2113(d) gun enhancement; and (5) the court affirmed remainder of the district court's judgments.
Court Description: Criminal Law. The panel affirmed in part, reversed in part, and remanded, in appeals and government cross-appeals arising from a case in which a jury convicted Edwin Carr, Damien Anderson, and Mark Franklin on counts related to the armed robbery of a federal credit union. The panel held that the district court did not err by admitting an eyewitness’s pretrial identification testimony. The panel held that the pretrial identification procedure was not impermissibly suggestive, and that despite an eighteen- month delay between the robbery and the eyewitness’s interrogation, the district court did not err by allowing the jury to weigh her identification testimony. The panel held that the evidence supports the jury verdict that Carr was guilty of forced accompaniment under 18 U.S.C. § 2113(e). The panel held that the evidence supported the jury’s finding that forced accompaniment was foreseeable to all three defendants, and that to the extent the district court vacated Anderson’s and Franklin’s convictions under § 2113(e), it erred. The panel held that the district court did not err by ruling that the evidence did not support Franklin’s convictions for use of firearms under 18 U.S.C. §§ 2113(d) and 924(c). Noting that the written judgment is inconsistent with the district court’s oral explanation of its decision to vacate Franklin’s conviction under § 2113(d), the panel instructed the district court on remand to enter an amended judgment reflecting that Franklin was acquitted of the § 924(c) gun charge and the § 2113(d) gun enhancement. The panel held that the district court’s Alleyne error – application of the ten-year mandatory minimum pursuant to 18 U.S.C. § 924(c)(1)(A)(iii) without a supporting jury finding – was harmless because all of the trial evidence supported the court’s implicit finding that guns were discharged during the course of the robbery. The panel held that the district court sufficiently justified its departure from the recommended guidelines range when sentencing Franklin, and rejected Franklin’s argument that his sentence is substantively unreasonable.
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