United States v. Ricardo Morris-Antonio Pitcher, Defendandt-Appellant

122 F.3d 1075, 1997 WL 542239

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 1997
• Docket: 96-50623
• Status: Unpublished

Opinion

122 F.3d 1075

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Ricardo Morris-Antonio PITCHER, Defendandt-Appellant.

No. 96-50623.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 25, 1997.**
Decided Aug. 28, 1997.

Appeal from the United States District Court for the Central District of California Mariana R. Pfaelzer, District Judge, Presiding

Before: SCHROEDER, FERNANDEZ and RYMER, Circuit Judges.

MEMORANDUM*

Ricardo Morris-Antonio Pitcher appeals his court trial conviction and the seventy-two month sentence imposed for conspiracy to commit armed bank robbery, and use of a firearm during a crime of violence, in violation of 18 U.S.C. §§ 371, 924(c), 2113(a). Pitcher contends that since Bailey v. United States, 116 S.Ct. 501, 505 (1995), limited "use of a firearm" in section 924(c)(1) to cases where the defendant actively used the firearm, the Pinkerton doctrine of vicarious liability by coconspirators is no longer applicable to him because the firearm was only used by Pitcher's codefendant, without any active employment by Pitcher.

We reject this contention in light of our recent opinion in United States v. Fonseca-Caro, 114 F.3d 906, 907 (9th Cir.1997), which held that the Pinkerton doctrine is applicable to a section 924(c)(1) charge after Bailey. See also, United States v. Lopez, 100 F.3d 98 (9th Cir.1996), cert. denied, 117 S.Ct. 1824 (1997). Here, it is apparent under the Pinkerton doctrine that substantial evidence supports Pitcher's conviction in that Pitcher could reasonably have foreseen that it was a natural consequence of the bank robbery conspiracy that his codefendant would use the firearm. See Fonseca-Caro, 114 F.3d at 908.

AFFIRMED.

** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3