* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Dale A. Kimball, United States Distri ct Judge for the District of Utah, sitting by designation. 

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

### DEC 9 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MALCOLM EUGENE MOORE, Defendant-Appellant. No. 98-5231 (D.C. No. 98-CR-44-H) (N.D. Okla.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, LUCERO and KIMBALL , ** Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e cause is therefore ordered submitted without oral argument.-2-

This direct appeal arises from Malcolm Eugene Moore ’s conviction and sentencing in federal district court for his commis sion of several bank robberies. On March 5 and April 3, 1998, two Tulsa banks were robbed by two men, one of whom carried a gun. The jury found Mr. Moore guilty of committing each of these robberies and of aiding and abetting his co-d efendant’s use of the firearm during a crime of violence in violation of 18 U.S.C . § 924(c). The district court sentenced Mr. Moore to 690 months pursuant to the U nited States Sentencing Guidelines. Mr. Moore first argues there was insufficient evide nce to uphold his conviction for aiding and abetting his co-defendan t, Jerome Brown, in the use of a firearm. According to Mr. Moore, there was no ev idence presented showing he actively facilitated Mr. Brown’s use of the gun, no r that he even had any prior knowledge Mr. Brown had a gun or was planning on us ing a gun during the bank robberies. When reviewing a conviction for insuffi cient evidence, we consider all the evidence in a light most favorable to the gover nment to determine if a reasonable jury could find the defendant guilty bey ond a reasonable doubt. See United States v. Esparsen , 930 F.2d 1461, 1470 (10th Cir. 1991). “To be gui lty of aiding and abetting a crime, the defendant must willfully associate himself with the crime and seek to make it succeed through some action on his part.” Id. Our review of the record convinces us the evidence was sufficient to show that Mr.-3-

Moore knowingly and actively participated in the ar med robberies during which he knew Mr. Brown was carrying a firearm. See United States v. Wiseman , 172 F.3d 1196, 1217 (10th Cir. 1999) (knowingly and act ively participating in armed robberies sufficient to uphold § 924(c) conviction) , cert. denied 120 S. Ct. 211 (1999); United States v. Bindley , 157 F.3d 1235, 1238 (10th Cir. 1998) (same), cert. denied

119 S. Ct. 1086 (1999). Furthermore, Mr. Moore di rectly facilitated and was benefitted by Mr. Brown’s use of the firearm by collecting the robbery proceeds while Mr. Brown brandished the weapon. See , e.g. , Bazemore v. United
States , 138 F.3d 947, 949-50 (11th Cir. 1998) (upholding § 924(c) conviction because defendant knowingly accepted protection aff orded by co-defendant’s use of a gun). As the court pointed out in United States v. Price , 76 F.3d 526, 529-30 (3rd Cir. 1996), even if the defendant did not knowin advance that his codefendant was going to use a gun during the robbery , defendant’s continued participation in the robbery while his co-defendantused the gun supports the section 924(c) conviction. See also United States v. Morrow , 977 F.2d 222, 230- 31 (6th Cir. 1992) (en banc) (upholding § 924(c) co nviction since co-defendant’s use of firearm emboldened and protected defendant d uring commission of underlying crime). The evidence here was sufficien t for the jury to find Mr. Moore aided and abetted Mr. Brown’s use of a firearm during the bank robberies. Mr. Moore next challenges his sentence. He contend s his criminal history-4-

was overstated by the sentencing guidelines’ failur e to take into account the nonviolent nature of his prior convictions, thereby cr eating a distortion which takes his case out of the heartland of cases contemplated by the Sentencing Commission. He further argues that the district co urt abused its discretion by refusing to depart downward given Mr. Moore’s wholl y non-violent criminal history. The Sentencing Commission has found the likelihood of recidivism greater when a defendant has a criminal history, without di stinguishing whether that history is violent or non-violent. See USSG Ch.4, intro. comment. The Commission is within its statutory authority to wei gh policy issues and make such determinations. See 18 U.S.C. § 3553(a)(4), (5). Thus, we cannot say the sentencing guidelines distorted Mr. Moore’s crimina l history. Under the guidelines, Mr. Moore was assigned a crim inal history category of VI. This level was combined with the offense le vel of twenty-six to arrive at a maximum total sentence of 690 months. The districtcourt refused to grant a downward departure from the guidelines due to its c onclusion that Mr. Moore’s case was not outside the heartland of cases conside red by the Sentencing Commission. A district court’s refusal to depart f rom the guidelines is a discretionary decision that cannot be appealed. See United States v. Jones , 80 F.3d 436, 439 (10th Cir. 1996). If the district co urt unambiguously states it lacks-5-

the authority to depart from the guidelines in a pa rticular case, however, we can review that conclusion de novo. See United States v. Mitchell , 113 F.3d 1528, 1534 (10th Cir. 1997), cert. denied 118 S. Ct. 726 (1998). The threshold issue for us to determine, therefore, is whether the districtcourt unambiguously stated it lacked the authority to make a downward departure. The district court held Mr. Moore’s case was not outside the heartland of cases considered by the Sentencing Commission “for purposes of this Court having any freedom to engage in a downward departur e.” Rec. vol. XIII at 8. Assuming the district court was ambiguous regarding its authority to grant a departure, that ambiguity is not enough for this co urt to review its decision. The district court must unambiguously state it lacks authority to downward depart before we will review the decision not to depart. See United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994). Absent such an unambiguous statement, we assume the district court “made a discretionary dec ision not to depart, not a legal decision that it had no authority to depart.” United States v. Fortier , 180 F.3d 1217, 1231 (10th Cir. 1999). We therefore have no jurisdiction to review the district court’s decision not to depart from the gu idelines when it sentenced Mr.
Moore.-6-

For the reasons stated above, we AFFIRM

. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge