United States v. Michael Bandy

Citations: 239 F.3d 802; 2001 U.S. App. LEXIS 1190; 2001 WL 69052Docket: 99-5242

Court: Court of Appeals for the Sixth Circuit; January 30, 2001; Federal Appellate Court

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Michael Bandy was convicted of armed bank robbery, use of a firearm during a felony, and aiding and abetting. The incident occurred on November 28, 1997, when Bandy and accomplice Roger Jones robbed the Citizens Bank in Red Boiling Springs, Tennessee, with Bandy wielding a pellet gun and Jones carrying a short-barreled shotgun. They stole approximately $96,809.00 and fled in a getaway car driven by Harvey Webb, which was later abandoned. 

Police discovered the vehicle and found a pawn ticket linked to Bandy inside. Following leads, Officer Hal Parrish located Bandy and other suspects in a truck in Holland, Kentucky, where they recovered $92,532.00 in cash, including money with recorded serial numbers from the robbery, and a loaded shotgun identified by a witness as the weapon used during the heist. 

Bandy, Jones, and Webb confessed to their roles in the robbery, with Bandy admitting he planned the crime and provided the weapons. The appellate court affirmed Bandy's convictions but reversed his sentence for the firearm charge, remanding for resentencing in accordance with *Castillo v. United States*.

Defendant faced charges for armed bank robbery under 18 U.S.C. § 2113, using a firearm during the commission of the robbery under 18 U.S.C. § 924(c), and aiding and abetting under 18 U.S.C. § 2, resulting in convictions for all charges. The district court categorized Defendant as a leader and organizer and classified the firearm as a short-barreled shotgun under 18 U.S.C. § 921(a)(6), imposing a ten-year minimum sentence under 18 U.S.C. § 924(c)(1)(B)(i). 

Defendant argues that the evidence was insufficient to support the firearm charge, claiming the Government failed to demonstrate the weapon was operable or provided proof of its intended design. However, the court stated it would only grant relief on such claims if no rational jury could find guilt beyond a reasonable doubt. Under 18 U.S.C. § 924(c), using or carrying a firearm during a violent crime constitutes an offense. The definition of "firearm" includes any weapon that can expel a projectile by explosive action, and armed bank robbery qualifies as a "crime of violence."

The court clarified that a defendant can be liable for a § 924(c) violation as an aider and abettor even without actual possession of a firearm. Importantly, the requirement for a firearm to be operable is not necessary for a conviction under § 924(c); it is sufficient for the firearm to be real, and it need not be loaded or operable. 

The evidence presented indicated that Defendant's accomplice carried a loaded short-barreled shotgun during the robbery, which was later test fired successfully, supporting the jury's ability to find beyond a reasonable doubt that Defendant possessed a firearm for the purposes of § 924(c). Thus, the court found the arguments by Defendant unpersuasive.

Defendant contends that the district court made an error in sentencing by determining, based on a preponderance of evidence, that a short-barreled shotgun was used in the robbery. The appellate court reviews factual findings from sentencing under a "clearly erroneous" standard, meaning a finding is "clearly erroneous" if the reviewing court is firmly convinced a mistake was made, despite some supporting evidence. A witness identified the weapon used in the robbery as a short-barreled shotgun, which is defined under 18 U.S.C. § 921(a)(6) as having barrels less than 18 inches in length. Testimony from an FBI special agent confirmed the weapon was a shotgun, and even the Defendant acknowledged this classification. The shotgun's barrel measured approximately thirteen and a half inches, thereby qualifying under the statute regardless of the overall length of about twenty-eight inches. Consequently, the district court's finding was not clearly erroneous. However, it was legally insufficient for sentencing under 18 U.S.C. § 924(c)(1)(B)(i) since the jury did not establish this fact beyond a reasonable doubt.

Additionally, the Defendant argues that the district court erred in finding him to be a leader or organizer of the robbery. Similar to the previous finding, the court's determinations during sentencing are also reviewed under a "clearly erroneous" standard. According to Section 3B1.1(c) of the Sentencing Guidelines, if a defendant is found to be an organizer, leader, manager, or supervisor in a criminal activity involving fewer than five participants, the offense level should be increased by two. Evidence presented at trial and sentencing indicated that the Defendant was indeed a leader in the bank robbery, as he obtained the weapons, stole the getaway car, and directed the actions of his accomplices. Therefore, the district court's conclusion that the Defendant was an organizer was upheld, and the increase in his offense level by two levels was deemed appropriate.

The defendant contends that the district court improperly imposed a mandatory minimum ten-year sentence under 18 U.S.C. § 924(c)(1)(B)(i) based on the finding that a short-barreled shotgun was used during the bank robbery, using a preponderance of the evidence standard. The Supreme Court has clarified that any fact that increases a crime's maximum penalty must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt, as established in cases like Jones v. United States and Apprendi v. New Jersey. In the case of Castillo, the Supreme Court determined that the type of firearm used is a critical element of the crime, not merely a sentencing factor, and must be proven beyond a reasonable doubt. 

In this instance, the district court treated the use of the short-barreled shotgun as a sentencing factor, establishing its usage by a preponderance of the evidence, which contradicts the ruling in Castillo. Consequently, the appellate court reversed the district court's sentence and remanded the case for resentencing, affirming the defendant's convictions for armed bank robbery and related charges. The court indicated that while the short-barreled shotgun cannot be used for a mandatory minimum sentence under § 924(c)(1)(B)(i), it may still be considered for other purposes under the Sentencing Guidelines.