## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 30 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. DONNIE R. BOLDEN,

Defendant-Appellant. No. 96-3274

Appeal from the United States District Court

for the District of Kansas (D.C. No. 95-CR-40062)

Randy M. Hendershot, Assistant United States Attorn ey, (Jackie N. Williams, United States Attorney, with him on the brief), Uni ted States Attorney’s Office, Topeka, Kansas, for Appellee. Charles D. Dedmon, Assistant Federal Public Defende r, (David J. Phillips, Federal Public Defender, with him on the brief), Fe deral Public Defender for the District of Kansas, Topeka, Kansas, for Appellant

Before TACHA, McKAY, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.1 The 1995 United States Sentencing Guidelines are ap plied in this case. All

citations to the Sentencing Guidelines therefore re ference the Guidelines in effect in 1995. -2- Donnie Bolden pleaded guilty to attempted bank robb ery and was sentenced to a fifty-one month term of imprisonment pursuant to the United States Sentencing Guidelines (“U.S.S.G.”). 1 Bolden appeals his sentence on two grounds. First, he claims the district court erredin enhancing his sentence five levels for possession of a firearm. Second, Boldencontests the district court’s failure to reduce his sentence under U.S.S.G. § 2X1 .1, which addresses attempts. We affirm.
BACKGROUND In 1995, Chris Stapleton, an acquaintance of Bolden , became a confidential informant for the Kansas Bureau of Investigation. Bolden and Stapleton planned a robbery of Bank IV in which they would split the proceeds. Through use of a wire worn by Stapleton, the FBI was able to monitorconversations between Bolden and Stapleton regarding the logistics of the robbery plan. Pursuant to their robbery plan, Stapleton obtained a firearm. The firearm was an inoperable weapon supplied by the Kansas Bureau of Investigati on. On August 18, 1995, the two arrived at Bank IV and parked their car. According to their plan, Bolden was to wait in the car for Stapleton to complete-3-

the bank robbery and then Bolden would drive the ge taway car. Stapleton left the car with the firearm and walked towards the bank. As soon as Stapleton was out of Bolden’s view, Bolden was arrested. Bolden plea ded guilty to attempted bank robbery and was sentenced to a fifty-one month termof imprisonment pursuant to the Sentencing Guidelines. This court reviews legal questions regarding the ap plication of the Sentencing Guidelines de novo. See United States v. Farnsworth , 92 F.3d 1001, 1007 (10th Cir.), cert. denied, 117 S. Ct. 596 (1996); United States v. Santiago , 977 F.2d 517, 524 (10th Cir. 1992). Factual findin gs of the district court are reviewed for clear error. See United States v. Kissick, 69 F.3d 1048, 1051 (10th Cir. 1995); Santiago , 977 F.2d at 524.
FIREARM ENHANCEMENT Section 2X1.1 of the Sentencing Guidelines, which c overs attempt, solicitation, and conspiracy, provides that the bas e offense level for an attempted offense is “[t]he base offense level from the guide line for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” U.S .S.G. § 2X1.1(a). “Substantive offense” is defined in the commentary as “the offen se that the defendant was convicted of soliciting, attempting, or conspiring to commit.” Id. § 2X1.1 Application Note 2.-4-

In this case, Bolden pleaded guilty to attempted ro bbery. The substantive guideline covering robbery provides a five-level en hancement “if a firearm was brandished, displayed, or possessed.” Id . § 2B3.1(b)(2)(C). Bolden contends the district court erred in imposing a five-level enha ncement pursuant to this section for two reasons. First, Bolden argues the governme nt failed to meet its burden of proving the firearm was “brandished, displayed or p ossessed” during the course of the attempted robbery. In his written objections t o the Presentence Investigation Report, he asserted: Certainly, the weapon was not brandished or display ed to any of the victims. In addition, while the weapon apparently was possessed at some time by the government agent, it was not posse ssed in the bank by the government agent. Second, Bolden challenges the district court’s conc lusion that the firearm possessed solely by Stapleton could be attributed t o Bolden for purposes of enhancing his sentence. Both of these arguments fa il. Section 2X1.1 of the Sentencing Guidelines clearly provides that the base offense level for a defendant who “attempts” to com mit a substantive offense is adjusted “for any intended offense conduct that can be established with reasonable certainty.” Id . § 2X1.1(a). In sentencing a defendant who attemp ts to commit a crime, therefore, the court looks not only at the completed conduct but also at conduct intended by the defendant. The com mentary explaining the application of this guideline clearly illustrates t hat when a defendant plans an-5-

armed robbery, the defendant’s sentence may be enha nced for the possession of a weapon even if the robbery is thwarted by law enfor cement officers before its execution. It states: [I]f two defendants are arrested during the conspir atorial stage of planning an armed bank robbery, the offense level o rdinarily would not include aggravating factors regarding possible injury to others, hostage taking, discharge of a weapon, or obtaining a large sum of money, because such factors would be speculative. The offense level would simply reflect the level applicable to robbery of a financial institution, with the enhancement for possession of a weapon

. Id. § 2X1.1 Application Note 2 (emphasis added); see also United States v. Jones , 950 F.2d 1309, 1316-17 (7th Cir. 1991) (upholding w eapon enhancement for defendant who pleaded guilty to soliciting another person to help commit bank robbery because there was ample evidence the defend ant planned to use a firearm during the robbery and noting “[t]hat the robbery n ever actually took place is irrelevant to the district court’s computation”). The government was therefore not required to prove that the firearm was actually “brandished, displayed, or possessed” duri ng the robbery, but only that it was Bolden’s intent that such conduct would take pl ace. Bolden does not dispute that this was his intent. The count to which he pl eaded guilty explicitly stated that the defendant, Donnie R. Bolden, did knowingly and intentionally attempt to take from the person or presence of anot her, money or property or a thing of value, to wit: United States currency, by force, violence and intimidation . . . and in committing s aid offense, the2 Given this court’s determination that there did notneed to be actual

brandishment, display, or possession of the firearmin the bank as long as intent to engage in such conduct was established with reasonable certainty under § 2X1.1(a), we need not consider the defendant’s ar gument that the district court failed to make an appropriate factual finding on th is matter nor do we need to address the government’s waiver argument. -6- defendant did assault and put in jeopardy the lives of other persons by the use of a dangerous weapon, to wit: a handgun

. (Emphasis added.) Furthermore, at the sentencing h earing, Bolden’s counsel explicitly agreed it was Bolden’s intent that Stapl eton would use the firearm during the robbery. In arguing before the districtcourt, counsel stated: “Mr. Bolden expected [Stapleton] to use the gun. . . . s o there was intent.” Bolden’s only contention is that the government failed to pr ove Stapleton actually entered the bank with the firearm. Under U.S.S.G. § 2X1.1( a), such a showing was not
necessary. 2 Bolden’s second argument in opposition to the enhan cement is that the possession of a firearm by Stapleton could not be attributed to him as relevant conduct. Under § 1B1.3(a)(1)(A) of the Sentencing Guidelines, a defendant’s base offense level and specific offense characteris tics are determined on the basis of “all acts and omissions committed, aided, abette d, counseled, commanded, induced, procured, or willfully caused by the defen dant.” Bolden contends that there was no “act” for purposes of § 1B1.3(a)(1)(A) because the government did not prove the firearm was actually possessed in the bank. U.S.S.G. § 2X1.1(a),-7-

however, requires this court to examine all intende d offense conduct that is established with reasonable certainty. To enhance Bolden’s sentence, the facts need only s how that Bolden aided, abetted, or counseled possession of the firearm pur suant to the intended robbery plan. This is clearly established by the record. Together Bolden and Stapleton formulated the robbery plan which included use of afirearm; Bolden instructed Stapleton on how to enter the bank and threaten the bank teller; and Bolden does not contest he intended that Stapleton would use th e firearm in the robbery. These facts show that Bolden aided, abetted, and co unseled an attempted armed bank robbery. Bolden is therefore liable for Stapl eton’s possession of a gun pursuant to the robbery plan. Cf. United States v. Lockhart , 37 F.3d 1451, 1454 (10th Cir. 1994) (holding quantity of drugs, even i f not foreseeable to defendant, may be attributed to him under U.S.S.G. § 1B1.3(a)( 1)(A) where he “personally participated” in the transaction by driving co-defe ndant to location where transaction was to take place with knowledge that p urpose of trip was to obtain cocaine); United States v. Lambert , 995 F.2d 1006, 1008 (10th Cir. 1993) (focusing inquiry of whether defendant is liable fo r co-defendant’s express threat of death during robbery under U.S.S.G. § 1B1.3(a)(1 )(A) on intent and stating “if defendant intended that the death threat was to be made, he would then be responsible for it under [§ 1B1.3(a)(1)(A)]”).3 Having determined that Bolden aided, abetted, and c ounseled the

possession of a firearm under U.S.S.G. § 1B1.3(a)(1 )(A), this court need not decide whether the act of an informant which is notdirectly aided, abetted, or counseled by a defendant may nevertheless be attrib uted to the defendant as relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). -8- Bolden also argues that conduct engaged in by a con fidential informant should not be considered an “act” within the meanin g of § 1B1.3(a)(1)(A) because the informant lacks criminal intent. We disagree. Bolden intended that a firearm would be used to rob the bank and he counseled thatact. Under the plain language of the Sentencing Guidelines, Bolden is li able for all acts that he “aided, abetted, counseled, commanded, induced, procured, o r willfully caused.” U.S.S.G. § 1B1.3(a)(1)(A). The fact that Bolden’s coconspirator was an informant and therefore not criminally liable for t he conduct himself does not absolve Bolden from responsibility for an act he di rectly aids, abets, and counsels. The district court therefore did not error in enhan cing Bolden’s sentence five levels for the possession of a firearm. 3

DENIAL OF A REDUCTION UNDER § 2X1.1 Bolden’s second contention on appeal is that the d istrict court erred in not granting him a three-level reduction pursuant to § 2X1.1(b)(1), which provides: If an attempt, decrease by 3 levels, unless the defendant completed all the acts the defendant believed necessary for s uccessful completion of the substantive offense or the circum stances demonstrate that the defendant was about to complet e all such acts-9-

but for apprehension or interruption by some similar event beyond the defendant’s control. Id. § 2X1.1(b)(1). The district court found that Bolden had “completed all of the acts which he believed to be necessary for the successful comp letion of the substantive offense” and that Bolden did nothing to interrupt t he completion of the criminal conduct. Bolden does not appear to dispute these f actual findings and we cannot say the district court’s findings are clearly erron eous. The undisputed facts indicate that Bolden drove Stapleton to the bank, i nstructed him on how to proceed with the robbery, and was merely waiting fo r Stapleton to return with the
money. When a defendant has completed all acts he believes are necessary for the successful completion of an offense, he is not enti tled to a reduction under § 2X1.1(b)(1). See Santiago , 977 F.2d at 527 (holding defendant not entitled t o reduction under U.S.S.G. § 2X1.1(b)(1) when he had completed all acts he believed necessary to carry out fraud); United States v. Medina , 74 F.3d 413, 418 (2d Cir. 1996) (denying reduction and stating “[t]h e fact that [defendant’s] scheme was monitored by the police from an early st age does not render him and his co-conspirators any less accountable for arrivi ng at the construction company’s doorstep armed and ready to execute their[robbery] plan”); United States v. Johnson , 962 F.2d 1308, 1313-14 (8th Cir. 1992) (finding n o reduction is-10-

warranted when bank robberies would have been compl eted but for intervention of law enforcement officers). Bolden, however, argues that under Application Not e 4 to U.S.S.G. § 2X1.1, the district court was required to grant h im a three-level downward adjustment in light of its enhancement of his sente nce for firearm possession. The Application Note provides: In certain cases, the participants may have complet ed (or have been about to complete but for apprehension or interrupt ion) all of the acts necessary for the successful completion of part, but not all, of the intended offense. In such cases, the offense level for the count (or group of closely related multiple counts) is whiche ver of the following is greater: the offense level for the in tended offense minus 3 levels (under § 2X1.1(b)(1), (b)(2), or (b)(3)(A) ), or the offense level for the part of the offense for which the nec essary acts were completed (or about to be completed but for apprehe nsion or interruption). For example, where the intended off ense was the theft of $800,000 but the participants completed (or were about to complete) only the acts necessary to steal $30,000, the offense level is the offense level for the theft of $800,000 minu s 3 levels, or the offense level for the theft of $30,000, whichever i s greater. U.S.S.G. § 2X1.1 Application Note 4. Bolden admits that he completed all of the acts nec essary for part of the offense , attempted robbery without the use of a firearm, b ut contends he had not completed and was not about to complete the acts ne cessary for the entire offense , armed robbery. Bolden argues that because he was apprehended by law enforcement officers prior to any possession of the firearm in the bank, he was not able to control how far the offense conduct wou ld go and therefore should not4 This includes a two-level enhancement under U.S.S.G . § 2B3.1(b)(1)(A)

because the object of the offense was the taking of property of a financial institution. Bolden does not contest this enhancem ent. The adjusted offense level also includes a three-level decrease for Bolden’s a cceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b), which the district court applied. -11- be responsible for Stapleton’s alleged possession o f the gun in the bank. Additionally, Bolden believes that the crime was in terrupted as soon as Stapleton disappeared from Bolden’s view. Because Stapleton no longer had any reason to carry out the offense after leaving Bolden’s sight, Bolden contends that any additional acts by Stapleton were meaningless and s hould not be attributed to him. Based on his belief that only part of the offense w as completed, Bolden asserts that under Application Note 4 he should hav e received the greater of (1) the offense level for the part of the offense f or which the necessary acts were completed or about to be completed but for the appr ehension or interruption, in this case bank robbery without use of a firearm, or(2) the offense level for the entire intended offense, armed bank robbery, minus three levels. Had Bolden been sentenced for robbery of a financia l institution without an enhancement for possession of a firearm, he would h ave an adjusted offense level of nineteen. 4 The district court, however, applied the offense level applicable to bank robbery with a firearm, which Bolden admits wa s the entire intended offense. The resulting offense level was twenty-fo ur. Bolden contends, however, that because the district court sentenced him accor ding to the entire intended-12-

offense conduct, bank robbery with a firearm, rathe r than just the completed offense, bank robbery without a firearm, it was req uired to grant him a three-level reduction under § 2X1.1(b)(1). Had Bolden been granted this reduction, his adjusted offense level would be twenty-one. Becaus e, under Application Note 4, a defendant receives the greater of (1) the offense level for the completed conduct, which Bolden believes is nineteen, or (2) the offense level for the intended conduct minus three levels, which would be twenty-one, Bolden argues that his offense level should have been twenty-one rather than twenty-four. Bolden’s argument fails for a number of reasons. B olden’s proposed interpretation of Application Note 4 ignores the pl ain language of the § 2X1.1. Under the guideline, a defendant’s offense level is determined based on “any intended offense conduct that can be established wi th reasonable certainty.” Id

. § 2X1.1(a). The offense level is then decreased by three level s “unless the defendant completed all the acts the defendant beli eved necessary for successful completion of the substantive offense or the circum stances demonstrate that the defendant was about to complete all such acts but f or apprehension or interruption by some similar event beyond the defendant’s contro l.” Id. § 2X1.1(b)(1). Bolden completed all acts he believed were necessary for completion of the armed robbery. But for events beyond his control, his ap prehension and the fact that his coconspirator was an informant, the armed robbery w ould have been completed.-13-

The district court therefore did not err in basing Bolden’s sentence on the intended offense, armed robbery, while denying him a three-level reduction. Bolden’s argument also misconstrues Application Not e 4. The note only deals with offenses for which the defendant has completed or was about to complete the acts necessary for part, but not all , of the intended offense. Here Bolden had completed, or would have completed but f or his apprehension and the interruption which was beyond his control, all of the acts necessary for the entire offense. The note therefore does not apply to Bold en’s case. Cf. Santiago , 977 F.2d at 527 (finding Application Note 4 inapplicabl e when defendant had completed all acts he believed necessary for fraud, but fraud was not “partially successful” because defendant had received none of the intended proceeds). Even if the note did apply, however, Bolden’s sentence w ould be the same. The note provides that a defendant’s offense level may be ba sed on “the part of the offense for which the necessary acts were completed (or abo ut to be completed but for apprehension or interruption).” U.S.S.G. § 2X1.1 Application Note 4. In this case Bolden had completed, or was about to complete but for his apprehension and the interruption, all acts necessary for an armed bank robbery. The appropriate offense level under the completed condu ct provision of Application Note 4 therefore includes the weapon enhancement an d is thus twenty-four.-14-

Finally, in an attempt to stretch the meaning of Ap plication Note 4, Bolden ignores relevant background commentary, which state s: In most prosecutions for conspiracies or attempts, the substantive offense was substantially completed or was interrup ted or prevented on the verge of completion by the intercession of l aw enforcement authorities or the victim. In such cases, no reduc tion of the offense level is warranted. Id. § 2X1.1 Background. Bolden had done everything h e believed was necessary for completion of an armed robbery. He had instruc ted Stapleton on how to carry out the robbery and Stapleton had left the car in p ossession of a gun. As the getaway driver, Bolden was merely waiting for Stapl eton to return with the money. Bolden’s role in the offense was substantia lly completed. He therefore was not entitled to a three-level reduction. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED

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