United States of America, Plaintiff-appellee, v. Ricardo Morris-antonio Pitcher, Defendandt-appellant, 122 F.3d 1075 (9th Cir. 1997)

MEMORANDUM^* 

Ricardo Morris-Antonio Pitcher appeals his court trial conviction and the seventy-two month sentence imposed for conspiracy to commit armed bank robbery, and use of a firearm during a crime of violence, in violation of 18 U.S.C. §§ 371, 924(c), 2113(a). Pitcher contends that since Bailey v. United States, 116 S. Ct. 501, 505 (1995), limited "use of a firearm" in section 924(c) (1) to cases where the defendant actively used the firearm, the Pinkerton doctrine of vicarious liability by coconspirators is no longer applicable to him because the firearm was only used by Pitcher's codefendant, without any active employment by Pitcher.

We reject this contention in light of our recent opinion in United States v. Fonseca-Caro, 114 F.3d 906, 907 (9th Cir. 1997), which held that the Pinkerton doctrine is applicable to a section 924(c) (1) charge after Bailey. See also, United States v. Lopez, 100 F.3d 98 (9th Cir. 1996), cert. denied, 117 S. Ct. 1824 (1997). Here, it is apparent under the Pinkerton doctrine that substantial evidence supports Pitcher's conviction in that Pitcher could reasonably have foreseen that it was a natural consequence of the bank robbery conspiracy that his codefendant would use the firearm. See Fonseca-Caro, 114 F.3d at 908.

AFFIRMED.