Unpublished Disposition, 918 F.2d 181 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 918 F.2d 181 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.James Ronald LOWE, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.William Harvey NEWMAN, Defendant-Appellant.

Nos. 90-30130, 90-30151.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 7, 1990.* Decided Nov. 16, 1990.

Before EUGENE A. WRIGHT, POOLE and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

This is a consolidated appeal. James Ronald Lowe appeals his sentence under the Sentencing Guidelines. He argues that the district court improperly relied on stipulations in his plea agreement to determine his offense level and improperly failed to depart downward from the sentencing range indicated by the Guidelines.1  William Harvey Newman appeals the denial of his motion to suppress statements he made to federal agents following his arrest. Newman contends that the agents lacked probable cause to arrest him without a warrant and that his statements were involuntary. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

FACTS

On March 20, 1989 the First Interstate Bank of Oregon was robbed by a young black male later identified as Lowe. Lowe had previously been indicted for his role in other bank robberies. Several witnesses identified a black Toyota pickup truck driven by a white male as the getaway vehicle. The truck was registered to Newman's mother who had reported the truck and Newman missing four days previously. The truck was later located at a Portland motel where Newman had rented two rooms. Newman paid cash for the rooms. Bait money from the robbery was found in the motel till. Federal agents observed Lowe leaving the motel. They followed Lowe and arrested him.

Federal agents questioned Newman at the motel, but did not arrest him because they believed they had insufficient probable cause to make a warrantless arrest. Newman did not make any inculpatory statements at this time.

Subsequently, the federal agents who had questioned Newman learned from a colleague that a third suspect in the robbery had identified Newman as the driver of the getaway vehicle. The agents then returned to the motel and placed Newman under arrest. Newman was given his Miranda warnings and made a full confession. Newman entered a conditional plea of guilty in which he reserved his right to appeal the district court's denial of his motion to suppress his confession.

Lowe pleaded guilty to one count of armed bank robbery and one count of using a weapon during the commission of a felony. In his plea agreement he accepted responsibility for three other armed bank robberies. The district court treated these robberies as additional convictions and sentenced Lowe using the multiple-count section of the Guidelines.

ANALYSIS

1. Use of Stipulations in Determining Lowe's Base Offense Level

Although Lowe accepted responsibility for the three additional armed bank robberies that were charged in the indictment, he did not plead guilty to these counts and they were dismissed. Lowe contends that the use of these dismissed counts to determine his base offense level was improper.2 

Section 1B1.2(c) of the Guidelines provides that " [a] conviction by a plea of guilty or nolo contendre containing a stipulation that specifically establishes the commission of additional offenses shall be treated as if the defendant had been convicted of additional count(s) charging those offense(s)." United States Sentencing Commission, Guidelines Manual, Sec. 1B1.2(c) (Nov. 1989). The commentary to this section of the Guidelines is precisely on point: "if the defendant is convicted of one count of robbery but, as part of a plea agreement, admits to having committed two additional robberies, the guidelines are to be applied as if the defendant had been convicted of three counts of robbery." Guidelines Sec. 1B1.2, Application Note 4. This is how the district court applied the Guidelines. Lowe pleaded guilty to one count of armed bank robbery and admitted responsibility for three other such robberies in his plea agreement. The district court used the multiple count section of the Guidelines and sentenced Lowe based upon four counts. In so doing it applied the Guidelines properly.

2. Failure of District Court to Depart Downward

Lowe also contends that the district court should have departed downward from the applicable Guideline range because his stipulation to the other three bank robberies did not represent actual convictions. Aside from the fact that Lowe did not request the district court to make such a departure, we do not review a district court's discretionary failure to make a downward departure. United States v. Morales, 898 F.2d 99, 102 (9th Cir. 1990).

The question whether probable cause existed to arrest Newman is a mixed question of law and fact which we review de novo. United States v. Pinion, 800 F.2d 976, 979 (9th Cir. 1986); United States v. Smith, 790 F.2d 789, 791 (9th Cir. 1986). The findings of the district court regarding the underlying facts supporting the probable cause determination are reviewed under the clearly erroneous standard. Id.

Probable cause to effectuate a warrantless arrest exists when the totality of the facts and circumstances within the knowledge of the arresting agents is sufficient to warrant a prudent person to conclude that there was a fair probability that the individual arrested had committed a crime. United States v. Fixen, 780 F.2d 1434, 1436 (9th Cir. 1986); United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984). Here, the federal agents knew the following when they arrested Newman:

a. the Toyota pickup truck identified as the getaway vehicle was owned by Newman's mother;

b. the pickup truck and Newman were reported missing four days before the bank robbery;

c. the driver of the getaway truck was a white male;

d. the pickup truck was parked at the motel;

e. Newman had rented two rooms at the motel;

f. bait money from the robbery was found in the motel till;

g. a known suspect in the robbery was seen leaving the motel; and

h. Newman was identified as the getaway driver by another suspect.

We conclude that the above-listed facts and circumstances were sufficient to warrant a prudent person to believe that there was a fair probability Newman had committed a crime.2  Thus, there was probable cause for Newman's arrest without a warrant.

We review a district court's conclusion that a confession is voluntary de novo. United States v. Eide, 875 F.2d 1429, 1434 (9th Cir. 1989); United States v. Wolf, 813 F.2d 970, 974 (9th Cir. 1987). We review the district court's determination of the underlying facts supporting its conclusion under the clearly erroneous standard. Wolf, 813 F.2d at 974.

Newman contends that he "was not in a physical or mental condition in which to make a knowing and voluntary waiver of his right to remain silent" due to lack of sleep and withdrawal from narcotics. It is plain, however, that a finding of "coercive police activity is a necessary predicate to the finding that a confession is not voluntary...." Colorado v. Connelly, 479 U.S. 157, 167 (1986). See also Eide, 875 F.2d at 1434; Wolf, 813 F.2d at 974. There was no coercive conduct in this case.3  The facts that agents questioned Newman immediately upon his arrest in the early morning, that Newman had not slept for many hours, and that he was suffering from the effects of withdrawal from narcotics are insufficient to render his statements involuntary. See United States v. Lewis, 833 F.2d 1380, 1383-84 (9th Cir. 1987) (statement voluntary when obtained from a "heroin addict suffering from the effects of withdrawal ... questioned in her hospital bed hours after ... awaken [ing] from a general anesthetic administered during surgery").

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

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

In his brief, Lowe asserts that he joins William Harvey Newman's appeal of the district court's denial of Newman's motion to suppress. Because we conclude that there was probable cause to arrest Newman and that his statements were voluntary, we do not address Lowe's purported joinder in Newman's suppression argument

 2

The district court set Lowe's base offense level at 22. Lowe had a criminal history category of VI. The district court determined that, on the armed robbery count, this resulted in a sentencing range of 84-105 months. On this count, Lowe was sentenced to 95 months in prison and 3 years supervised release. The firearm count carried a mandatory 60-month consecutive sentence, which was also imposed

It appears Lowe may have been sentenced under an inapplicable version of the Sentencing Guidelines. Lowe was sentenced on March 20, 1990. The Guidelines in effect on that date, as amended, were the November 1989 Guidelines. The Guidelines "in effect on the date the defendant is sentenced" are to be applied by the sentencing court. 18 U.S.C. § 3553(a) (4) and (5). The use of the amended November 1989 Guidelines would have resulted in a base offense level of 25 which, when combined with a criminal history category of VI, would have generated a sentencing range of 110-137 months. Because the United States Attorney has not filed a cross-appeal, we do not address this issue.

 2

Newman makes much of the fact that the federal agents believed that the first seven facts did not constitute probable cause and they only arrested Newman after they learned that a third suspect had identified him as the getaway driver. We reject this argument. We examine the totality of the facts and circumstances. Here the totality is sufficient to establish probable cause

 3

Newman did not even argue at his suppression hearing that any law enforcement officer had coerced him. [Newman ER at 13]