United States v. Gibson

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 9 1998 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, vs. No. 97-8074 (D.C. No. 97-CR-27-4) KIMBERLY GIBSON, (D. Wyo.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before PORFILIO, KELLY, and HENRY, Circuit Judges. **

Defendant-appellant Kimberly Gibson pleaded guilty to one count of

conspiracy to commit bank robbery, see 18 U.S.C. §§ 371 & 2113, and was

sentenced to thirty-seven months imprisonment to be followed by three years of

supervised release. In calculating her sentence, the district court enhanced Ms.

Gibson’s base offense level by two levels pursuant to USSG § 1B1.2(d) to adjust

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument. for her participation in two of the four bank robberies which were the objects of

the conspiracy. The district court refused to grant Ms. Gibson’s request for

downward adjustment as a minor or minimal participant pursuant to USSG

§ 3B1.2. Ms. Gibson appeals these determinations. Our jurisdiction arises under

28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

Ms. Gibson argues that the application of USSG §1B1.2(d), which allows

the court to consider the number of offenses which a defendant conspires to

commit for purposes of sentencing, violates the Indictment Clause of the Fifth

Amendment because it allows her to be punished as if she had been convicted of

two separate conspiracies. Ms. Gibson pled guilty to the conspiracy charge, and

the indictment specified the two bank robberies she admitted she participated in

as overt acts. See I R. doc. 28 at 4-6; II R. at 35-40; United States v. Allen, 24

F.3d 1180, 1183 (10th Cir.), cert. denied, 513 U.S. 992 (1994) (explaining that

guilty plea constitutes admission of acts described in indictment). The question

of waiver aside, an indictment “need not set forth factors relevant only to the

sentencing of an offender found guilty of [a] charged crime.” Almendarez-Torres

v. United States, 118 S. Ct. 1219, 1223 (1998). We thus reject Ms. Gibson’s

Indictment Clause argument.

Ms. Gibson also argues that in its application of USSG § 1B1.2(d), the

district court erroneously found that she participated in two separate conspiracies.

-2- Ms. Gibson’s argument, however, confuses the two objects of the conspiracy with

the conspiracy itself. Ms. Gibson admitted that she participated in both the

Powell and Worland bank robberies, which supports the district court’s finding

that Ms. Gibson conspired to commit these objects of the conspiracy for purposes

of USSG § 1B1.2(d). Ms. Gibson’s § 1B1.2(d) argument is accordingly

unavailing.

Ms. Gibson finally argues that the district court’s denial of a downward

adjustment for minimal or minor participation pursuant to USSG § 3B1.2 was

error. She asserts that the district court improperly considered her role in each

overt act separately for purposes of assessing her involvement in the conspiracy

pursuant to USSG § 3B1.2. The record belies this assertion, as the district court

considered all the evidence before it relating to Ms. Gibson’s participation in the

conspiracy. See III R. at 24-25. Moreover, the district court may, but need not,

make a specific comparison of the defendant’s role in the conspiracy to that of her

co-conspirators. See United States v. Caruth, 930 F.2d 811, 815 (10th Cir. 1991).

In any event, the district court’s determination that Ms. Gibson was more than a

minor or minimal participant was not clearly erroneous. See United States v.

McCann, 940 F.2d 1352, 1359 (10th Cir. 1991). Ms. Gibson admitted driving the

getaway vehicle for the robbery in Worland. See II R. at 35-37. She knew about

and was present during the Powell robbery; in fact, her need for travel money was

-3- a partial motivation for the robbery. See III R. at 17-18. Finally, she admitted

she profited either directly or indirectly from the proceeds of three of the

robberies. See II R. at 39-40. The district court’s determination of this issue is

fully supported by the record.

AFFIRMED. Ms. Gibson’s Motion [to Set] Oral Argument or in the

Alternative for a Decision on the Merits filed June 26, 1998 is deemed moot.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

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