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UNITED STATES v. BOGAN

April 24, 1992

UNITED STATES Plaintiff,
v.
GREGORY BOGAN, ELVIS ROBINSON, MANUEL ROBINSON, Defendants.



The opinion of the court was delivered by: VAUGHN R. WALKER

AMENDED ORDER MODIFYING SENTENCES FOLLOWING RECONSIDERATION

 Believing that such periods of incarceration understated the seriousness of defendants' criminal conduct, the government sought to increase the severity of defendants' sentences. Although rejecting the government's rationalizations for such increases, the court nonetheless found itself in agreement that these sentences were too lenient and, therefore, decided to order defendants also to reimburse the government for the cost of their incarceration.

 On March 13, 1992, defendants moved to set aside the portion of their sentences requiring reimbursement on the ground that defendants are poor, making such an obligation inappropriate. This, contend defendants, is a fine that should be reserved for criminal defendants who have the means to pay it.

 The government endorses a reimbursement obligation, but suggests that the court has not adequately explained its reasoning. At a hearing conducted on March 27, 1992, upon inquiry by the court all defendants and the government agreed that the court could modify the sentences and supplement the record notwithstanding defendants having filed appeals, a step requiring the finality of this court's judgments and a resulting end of its jurisdiction over these cases. 28 USC § 1291. The exclusivity of appellate jurisdiction is a rule of judicial prudence and not absolute, see Masalosalo by Masalosalo v. Stonewall Insurance Co., 718 F.2d 955, 956-57 (9th Cir 1983). Because, upon reflection, the court agrees that its sentencings require further explanation and modification to conform to the Sentencing Guidelines, it enters this order as requested by the parties.

 I.

 In addition to the two offenses to which defendants pleaded, the indictment charged all three defendants with violation of 18 USC § 924(c), carrying a firearm during a crime of violence, and Bogan with violation of 18 USC § 922(g)(1), felon in possession of a firearm. Conviction on these charges as well as the robbery counts would have tacked five years onto defendants' sentences. 18 USC §§ 922(c)(1), 929(a)(1). But it developed that the gun in question was manufactured in 1897 and thus an "antique firearm" under 18 USC § 921(a)(16). The enhancement statute for crimes involving a firearm expressly excludes guns manufactured before 1898, 18 USC § 921(a)(3), a legislative ornament of doubtful appeal to anyone on the wrong end of such a curio.

 Nonetheless, the government pointed to Bogan's possession of this weapon as a basis to enhance the sentences of all three defendants. The government claimed that the weapon was "otherwise used," which would have had the effect of adding four points to the 20 point base offense level for the robbery counts. Sentencing Guidelines § 2B3.1(b)(2)(B). Defendants maintained that the gun was merely "brandished," yielding only a three point increase. Sentencing Guidelines § 2B3.1(b)(2)(C).

 To be sure, the Guidelines' distinction between "brandished" and "otherwise used" entails some subtlety. The former means that "the weapon was pointed or waved about or displayed in a threatening manner" while the latter means less than "discharge" but "more than brandishing, displaying or possessing a firearm." Sentencing Guidelines § 1B1.1 Appl. Notes 1 (c), (g).

 The government further contended that the credit union employees were restrained, which would have warranted a two point increase for "physical restraint." Sentencing Guidelines § 2B3.1(b)(4). But the evidence did not reasonably establish that anyone had been "physically restrained," as opposed to being pushed, pulled or grabbed. Accordingly, the court found this increase also inappropriate.

 Finally, the government asserted that the credit union employees suffered serious emotional and psychological trauma as a result of the robbery, permitting a two point increase in the Guidelines tally. Sentencing Guidelines § 5K2.3. But the evidence, while demonstrating that the robbery traumatized the employees, did not establish extreme psychological injury as specified in the Guidelines.

 The credit union employees' declarations recount an all too common modus operandi for crimes of this nature. The robbers stormed into the credit union, two jumping over a teller counter, grabbing and pushing one employee, pulling another to the floor, saying, "Drop what you're doing," "Get your hands up and get away from the desk," "Lie down or I'll shoot you," "Shut up bitch," "Don't look at me, I know you're trying to I.D. me," "Shoot 'em, shoot 'em" and the like. Declarations of Wagner, Garibaldi, Price, Almeida. The employees, of course, were terrorized. One declared that she now gets a "sick feeling in the pit of my stomach" when a stranger enters her office and knows she will never feel safe again; another's fright caused her to soil herself and she now feels jumpy when someone comes into the credit union. Declarations of Wagner, Garibaldi.

 The government contends that these reactions are extreme. In doing so, the government demeans its own declarants. Their reactions appear, to this judge at least, quite normal, far from extreme, and certainly do not evince susceptibility to fright out of the ordinary. Decent and law abiding citizens are entitled to feel the terror, fright and outrage described by declarants in the face of armed robbery without their ...


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