United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-3270

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Jedediah W. Regenwether, * [PUBLISHED]

*

Appellant. *

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Submitted: May 14, 2002

Filed: August 27, 2002

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Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.

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PER CURIAM.

Jedediah Regenwether was convicted of two counts of solicitation to commit

a crime of violence, one count of aiding and abetting attempted bank robbery, one

count of aiding and abetting bank robbery, and one count of conspiracy to commit

bank robbery. He was sentenced to 135 months’ imprisonment on each of the aiding

and abetting charges, 120 months’ imprisonment on each of the solicitation charges,

and 60 months’ imprisonment on the conspiracy charge, to be served concurrently.

The district court imposed a three-level sentencing enhancement under U.S.S.G. §

2B3.1(b)(2)(E) after finding that Regenwether’s possession of a firearm was relevant
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conduct under U.S.S.G. § 1B1.3. It is from this three-level enhancement that

Regenwether appeals.

This case involves two sets of interrelated criminal convictions. On March 13,

1998, Regenwether and Vincent Abney robbed the Boone County Community Credit

Union (the Credit Union robbery). In addition to having perpetrated the Credit Union

robbery, Regenwether and Abney also had attempted to rob the Security State Bank

in Radcliffe, Iowa (the Radcliffe bank). Subsequently, Regenwether attempted to

recruit James Olscewski for a second attempt to rob the Radcliffe bank. Olscewski

became an FBI informant, and Regenwether was arrested. Regenwether cooperated

with the FBI and during the course of that cooperation he admitted that he had

purchased a shotgun to use in the Credit Union robbery. A tape recording of his

attempt to recruit Olscewski revealed that part of Regenwether’s plan for robbing the

Radcliffe bank was to brandish the shotgun in an effort to intimidate bank personnel

into giving him the money. No charges resulted from the conduct surrounding the

Radcliffe bank. Regenwether pleaded guilty to the Credit Union robbery and was

sentenced to eighteen months in prison.

Upon Regenwether’s release from prison he entered a halfway house, where

he met Benjamin Kirk. After their release from the halfway house, Kirk and

Regenwether conspired on a third attempt to rob the Radcliffe bank. On September

30, 1999, Kirk, following Regenwether’s instructions, entered the bank but left

without receiving any money. On November 10, 1999, Regenwether and Kirk

successfully robbed the First American State Bank and were arrested on November

22, 1999. Regenwether was charged for conduct related to the First American

robbery and the aborted Radcliffe bank attempt. The Radcliffe bank charges included

a conspiracy charge that dated back to Regenwether’s aborted attempts to rob the

Radcliffe bank with Abney and Olscewski. Regenwether was convicted on all

charges in May of 2001.
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At sentencing, the government objected to the presentence report’s failure to

include an enhancement for possession of the shotgun as conduct relevant to the

Radcliffe bank charges. Following a hearing, the district court determined that

Regenwether’s possession of the shotgun before his conviction for the Credit Union

robbery was conduct relevant to the Radcliffe bank charges. The court made two

alternative findings of fact. First, possession of the shotgun was relevant conduct

because Regenwether intended to use the shotgun in the second attempt to rob the

Radcliffe bank. Second, possession of the shotgun was relevant conduct because

Regenwether used it to try to recruit Olszewski as a co-conspirator to rob the

Radcliffe bank.

“Whether an act or omission constitutes relevant conduct is a factual

determination.” United States v. Plumley, 207 F.3d 1086, 1091 (8th Cir. 2000)

(citing United States v. Georges, 146 F.3d 561, 562 (8th Cir. 1998)). Thus, we

review for clear error. United States v. Larson, 110 F.3d 620, 627 (8th Cir. 1997)

(citing United States v. Lamere, 980 F.2d 506, 510 (8th Cir. 1992)). 

Regenwether argues that his 1998 conviction mooted any relevancy of the 1998

conduct to the 1999 charges. Regenwether acknowledged at sentencing that the

shotgun was not used to enhance his sentence for the Credit Union robbery.

Possession of the shotgun was relevant conduct as to the conspiracy to rob the

Radcliffe bank. The dates of the conspiracy, as charged in the indictment, were from

March 1998 until November 10, 1999. The jury found that a visit to the Radcliffe

bank on March 31, 1998, and the meeting between Regenwether and Olscewski on

April 1, 1998, were overt acts in furtherance of the conspiracy. Both of those acts

predate Regenwether’s first conviction and clearly relate to the conspiracy to rob the

Radcliffe bank. Thus, we find that the district court did not commit clear error in

determining that possession of the shotgun was relevant conduct and in imposing the

three level increase. 
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We also reject Regenwether’s assertion that Application Note 8 to § 1B1.3

prohibits the consideration of the shotgun as relevant conduct in this case.

Application Note 8 states that “offense conduct associated with a sentence that was

imposed prior to the acts or omissions constituting the instant federal offense . . . is

not considered as part of the same course of conduct . . . as the offense of conviction.”

Application Note 8 is limited by its terms to offense conduct under § 1B1.3(a)(2),

however. In turn, subsection (a)(2) applies only to offenses cross referenced under

§ 3D1.2(d). Bank robbery is not so cross referenced; thus, Application Note 8 does

not apply.

The sentence is affirmed.

BRIGHT, Circuit Judge, concurring.

I have previously written about the upside down world of the Sentencing

Guidelines. See United States v. Smiley, 997 F.2d 475, 483 (8th Cir. 1993) (Bright,

J., dissenting) (suggesting that sentences imposed under the guidelines where no rules

of evidence apply and where sentencing judges often summarily approve probation

officer recommendations seem to come from an Alice in Wonderland world where up

is down and down is up); United States v. Galloway, 976 F.2d 414, 438 (8th Cir.

1992) (Bright, J., dissenting) (comparing sentences imposed under the relevant

conduct provisions of the guidelines to an Alice in Wonderland world in which words

lose their real meaning and down is up and up is down). I am not alone in making

such a comparison. United States v. Frias, 39 F.3d 391, 393 (Oakes, J., concurring).

 

Here we have another example of the application of the Sentencing Guidelines

to inflate a sentence for reasons that seem nonsensical. 

Jedediah Regenwether challenges the district court's application of a threelevel sentencing enhancement under U.S.S.G. § 2B3.1(b)(2)(E) based upon
1

As the majority notes, Regenwether pleaded guilty to the 1998 Credit Union

robbery, but the government did not file charges on the two alleged 1998 attempted

robberies of the Radcliffe Bank. Those attempted robberies, however, are included

in the conspiracy count of the instant case, and form the basis for including the

shotgun as relevant conduct.

2

Regenwether's full argument is that relevant conduct, like conspiracies, must

have a beginning and an end. He argues that his intervening incarceration should

prevent the 1998 gun possession from being considered relevant conduct in the 1999

robberies. Regenwether's 1998 conspiracy with Abney is a distinct conspiracy from

the 1999 association with Kirk. 

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Regenwether's possession of a shotgun, which the district court deemed relevant

conduct under U.S.S.G. § 1B1.3. The government argues that the gun possession was

relevant conduct connected to Regenwether's 1998 robbery activities, which were

incorporated into the instant offense via the conspiracy count. 

Regenwether argues that the three-level increase should not apply because

possessing the shotgun is not relevant conduct with respect to his 1999 crimes in light

of defendant's intervening arrest, prosecution, and incarceration for one of the 1998

robberies.1

 Police seized the gun when they arrested Regenwether in 1998. The

present case stems from 1999 robbery activities. The 1998 possession of a shotgun

should have no impact on the instant case, according to Regenwether, because the

gun played no role in the 1999 robberies as evidenced by the fact that the indictment

makes no mention whatsoever of the gun, and the facts reveal that the gun was not

used in the planning or execution of the 1999 robberies. 

In Regenwether's view, the government is trying to use the conspiracy count

to pull in the 1998 pre-incarceration gun possession as relevant conduct in order to

enhance Regenwether's sentence.2

 I think that Regenwether is absolutely correct.
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Unfortunately, the law of conspiracy and the applicable sections of the Sentencing

Guidelines allow precisely this type of enhancement.

The jury convicted Regenwether of a conspiracy going back to March of 1998.

The attempted Radcliffe bank robbery was an object of this conspiracy, as was the

March 31 meeting between Regenwether and Olszewski. Based on the jury's verdict

and U.S.S.G. § 1B1.3, the trial court could properly determine that the gun was

conduct relevant to the conspiracy count. 

Frankly, it is situations like this that have led me to conclude that many of the

Guidelines make little sense. The defendant committed certain crimes in 1998, he

served time for the charges the government brought at that point, and surrendered his

shotgun. Now his offense level is enhanced three levels for possession of a gun that

he surrendered before the vast majority of the unlawful conduct charged by the

government occurred. This may be the current state of the law, but does it make

sense?

Even though I am obligated under existing law to concur, I say it is time for a

change. Again, I reiterate my call for abolishing or radically changing the Sentencing

Guidelines and adopting a more fair and just system. See e.g., United States v.

England, 966 F.2d 403, 411 (8th Cir. 1992) (Bright, J., concurring) (“In too many

instances, the sentences directed by the guidelines waste the lives of men and women.

. . . It is time for a re-evaluation and change.”) (emphasis in original); see also United

States v. Chavez, 230 F.3d 1089, 1093 (8th Cir. 2000) (Bright, J., concurring) (“‘Is

anyone out there listening?’ If not, isn’t it about time?”).
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.