United States v. Bandy

59 F. App'x 611
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 9, 2003
DocketNo. 01-6024
StatusPublished
Cited by2 cases

This text of 59 F. App'x 611 (United States v. Bandy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bandy, 59 F. App'x 611 (6th Cir. 2003).

Opinion

PER CURIAM.

This case requires us to review for a second time Defendant-Appellant Michael Bandy’s sentence for armed bank robbery, use of a firearm during commission of a felony, and aiding and abetting. This court previously affirmed Bandy’s convictions “for armed robbery, in violation of 18 U.S.C. § 2113, using and carrying a firearm in the commission of a bank robbery, in violation of 18 U.S.C. § 924(c), and aiding and abetting, in violation of 18 U.S.C. § 2”, but vacated his sentence for using and carrying a firearm in the commission of a bank robbery, in violation of 18 U.S.C. § 924(c), and remanded for resentencing. United States v. Bandy, 239 F.3d 802, 807-OS (6th Cir.2001) (“Bandy I”). We instructed the district court that, at resentencing, “the short-barreled shotgun may not be used to impose a mandatory ten-year sentence under 18 U.S.C. § 924(c)(1)(B)®, but may be considered for any other authorized purpose under the Sentencing Guidelines.” Id. at 808.

Bandy was resentenced in June 2001 and now appeals raising three arguments:

(1) the district court exceeded the scope of remand issued by this Court in Bandy I;

(2) the district court imposed a sentence that violated the Ex Post Facto Clause of Art. I, Section 9, of the United States Constitution; and (3) the district court incorrectly applied United States Sentencing Guideline (“U.S.S.G.”) § 2K2.4. For the reasons set forth below, we AFFIRM the district court’s judgment.

I. Factual and Procedural Background

A detailed discussion of the facts leading to Bandy’s conviction and sentencing for armed robbery, using and carrying a firearm in the commission of a bank robbery, and aiding and abetting can be found in Bandy I. We discuss here the procedural history relevant to Bandy’s current appeal.

In July of 1998, Bandy was tried by a jury and convicted on both counts of a two-count indictment charging him with armed robbery, in violation of 18 U.S.C. § 2113, and aiding and abetting, in violation of 18 [613]*613U.S.C. § 2 (Count One), and using and carrying a firearm in the commission of a bank robbery, in violation of 18 U.S.C. § 924(c), and aiding and abetting, in violation of 18 U.S.C. § 2 (Count Two). The type of firearm used in the bank robbery, a short-barreled shotgun, was not specified in the indictment.

Bandy was sentenced in February of 1999. The district court sentenced him to consecutive terms of 78 months of imprisonment on Count One and 120 months of imprisonment on Count Two, for a combined sentence of 198 months. As to the sentence for the § 924(c) conviction, the district court “determined that the shotgun was a short-barreled shotgun under 18 U.S.C. § 921(a)(6) and sentenced [Bandy] under 18 U.S.C. § 924(c)(1)(B)®, which imposes a ten-year statutory minimum.” Bandy I, 239 F.3d at 805. Bandy appealed, raising challenges to his conviction and sentence on Count Two.

As to his conviction, Bandy argued that there was insufficient evidence to convict him of using and carrying a firearm in violation of 18 U.S.C. § 924(c) because it had not been established that the short-barreled shotgun used in the bank robbery was operable. This court rejected that argument and held that Bandy “possessed a gun for purposes of § 924(e).” Id. at 806.

As to his sentence for violating § 924(c), Bandy argued, inter alia, that the district court erred when it sentenced him because it relied on its factual finding, made under a preponderance of the evidence standard, that the firearm used in the robbery was a short-barreled shotgun. See id. This court reversed Bandy’s mandatory minimum ten-year sentence imposed under 18 U.S.C. § 924(c)(1)(B)®. We concluded that “the district court’s finding was legally insufficient for sentencing under 18 U.S.C. § 924(c)(1)(B)® because the jury did not find [the fact that the firearm used in the robbery was a short-barreled shotgun] beyond a reasonable doubt during the liability phase of the trial.” Id. We observed that “[b]ecause the particular type of weapon ... increases the maximum sentence, it is an element of the crime and must be proven beyond a reasonable doubt before the trier of fact, and not by merely a preponderance of the evidence before a judge at sentencing.” Id. at 807. We remanded the matter back to the district court for resentencing with instructions that “the short-barreled shotgun may not be used to impose a mandatory ten-year sentence under 18 U.S.C. § 924(c)(1)(B)®, but may be considered for any other authorized purpose under the Sentencing Guidelines.” Id. at 808.

On remand, the district court granted in part the government’s motion for an upward departure, pursuant to U.S.S.G. § 2K2.4, Application Note 2, and in June of 2001, sentenced Bandy to 102 months of imprisonment on Count One (§ 2113 offense) and to the mandatory 60 months of imprisonment on Count Two (§ 924(c) offense), for a combined sentence of 162 months. To arrive at Bandy’s 162 months of imprisonment, the district court reevaluated Bandy’s sentence under both Counts One and Two of the indictment.

Bandy filed a timely appeal raising three arguments: (1) the district court exceeded the scope of remand issued by this Court in Bandy I; (2) the district court imposed a sentence that violates the Ex Post Facto Clause of Art. I, Section 9, of the United States Constitution; and (3) the district court incorrectly applied U.S.S.G. § 2K2.4.

II. Analysis

A. Scope of Remand in Bandy I

Bandy argues that the district court exceeded the scope of our remand in Bandy I and thus violated the mandate rule when it reevaluated his sentence in its [614]*614entirety, granted a one-level upward departure pursuant to U.S.S.G. § 2K2.4, and increased the sentence originally imposed in connection with his bank robbery conviction. Bandy contends that the Bandy I

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Warner Crider
468 F. App'x 457 (Sixth Circuit, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
59 F. App'x 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bandy-ca6-2003.