                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2345
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Lesia Ann Jackson,                      *
                                        *
             Appellant.                 *
                                   ___________

                          Submitted: June 22, 2005
                              Filed: August 22, 2005
                                   ___________

Before RILEY, BOWMAN, and BENTON, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       Lesia Ann Jackson (Jackson) pled guilty to one count of aiding and abetting
attempted bank robbery, in violation of 18 U.S.C. §§ 2 and 2113(a). The district
court1 sentenced Jackson to 66 months’ imprisonment and 3 years’ supervised release.
Jackson appeals her sentence, arguing the district court misapplied the United States
Sentencing Guidelines (Guidelines). Jackson further argues her sentence violated the
Sixth Amendment. We affirm.


      1
       The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.
I.     BACKGROUND
       From July 22 to September 26, 2002, Jackson worked as a lead teller at the
Wells Fargo Bank in Edina, Minnesota (bank). One of Jackson’s duties as a bank
teller was to close and secure the bank building at the end of the day. The bank
closed its lobby at 5:00 p.m. and offered drive-through service until 6:00 p.m.

      In late October or early November 2002, as Jackson was leaving a check-
cashing establishment, she encountered Tony Banks (Banks) and a man she knew
only as “Derrick,” two men who used to sell her drugs. Banks and Derrick told
Jackson they heard she worked at a bank, and they wanted her to “help them get some
information.” Jackson denied working at a bank and refused to help Banks and
Derrick.

       Jackson tried to avoid Banks and Derrick, but one day Banks and Derrick saw
Jackson outside her friend’s house, and they forced her into their car. Banks and
Derrick threatened to pour gasoline on Jackson and her son and “burn [them] up,” if
she did not help them obtain information from the bank’s computer. Jackson was
very frightened, but she did not report the threats to police.

       Around 4:00 p.m. on November 20, 2002, the day of the attempted bank
robbery, Banks and Derrick telephoned Jackson and said they were on their way to
pick her up. Jackson waited for Banks and Derrick a couple of blocks away from her
home. Inside the car were Banks, Derrick, and another man whom Jackson did not
know. Once inside the car, Jackson saw several book bags, one of which contained
a mask. At this point, Jackson began wondering whether the men intended to rob the
bank rather than simply obtain information from the bank’s computers. Jackson said
she never saw any weapons. Jackson removed her high-heeled shoes, put on gym
shoes which were inside one of the book bags, and placed her high-heeled shoes
inside one of the book bags.



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      Shortly before the bank lobby closed at 5:00 p.m., the vehicle in which Jackson
was riding pulled into the bank’s parking lot. Jackson and the unidentified male
entered the bank and went into the basement. The bank building was used formerly
as a mortuary and has a labyrinth of rooms in the basement. Jackson and the
unidentified male hid in the basement labyrinth while bank employees went
downstairs to get their belongings before leaving. Because Jackson used to work at
the bank, she knew only two employees would be in the building after the lobby
closed. At 6:00 p.m., one of the two remaining bank tellers went downstairs to collect
her belongings. Jackson knew, as part of the bank’s closing procedures, the two
remaining tellers would then secure the bank and exit the building.

       A little after 6:00 p.m., the unidentified male put on a ski mask and instructed
Jackson to cover her head with a paper towel. Believing the bank was empty, Jackson
and the unidentified male walked upstairs to the lobby. Upon hearing voices, Jackson
peered over the counter and observed two bank tellers standing near the drive-through
window. The bank tellers entered the lobby, and Jackson heard the tellers scream.
Attempting to avoid detection, Jackson jumped over the counter and ran towards the
exit. However, Jackson forgot the book bag containing her high-heeled shoes, so she
“made a U-turn and came back alongside the outside of the corner, picked up the
book bag and ran directly out the door.” Jackson walked home and disposed of the
book bag in a dumpster near her home.

        While attempting to rob the bank, the unidentified male ordered the bank tellers
to lie on the floor. The tellers complied and heard the unidentified male say, “If they
try anything funny, just shoot them.”2 Jackson maintains she had exited the bank
before the unidentified male threatened the tellers. While the tellers were lying on
the floor, the unidentified male took their bank keys and demanded the entry code to


      2
       Jackson never saw a gun or weapon, and there is no evidence weapons were
used in the attempted robbery.

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the vault. Unable to obtain any cash, he fled with the bank keys. The unidentified
male has never been identified or apprehended. Edina police officers identified
Jackson from the bank surveillance video.

      On December 27, 2002, the government charged Jackson with attempted bank
robbery. On July 23, 2003, Jackson and the government entered into a plea
agreement, and Jackson entered a plea of guilty to one count of aiding and abetting
attempted bank robbery. The plea agreement provided for a two-level sentencing
enhancement because the crime involved a financial institution, a two-level reduction
for Jackson’s minor role in the offense, and a three-level reduction for Jackson’s
acceptance of responsibility. Based on a criminal history category of III and a total
offense level of 17, the plea agreement expressed the parties’ belief that a sentencing
range of 30 to 37 months’ imprisonment was possible.

      Before sentencing, the United States Probation Office prepared a presentence
investigation report (PSR). Contrary to the plea agreement, the PSR did not
recommend Jackson receive a reduction for minor role and further recommended she
receive a two-level enhancement for threat of death. Based on a criminal history
category of IV and a total offense level of 21, the PSR recommended a sentencing
range of 57 to 71 months’ imprisonment. On May 18, 2004, the district court
accepted the PSR’s recommendations and sentenced Jackson to 66 months’
imprisonment.

       Jackson contends the district court committed three sentencing errors:
(1) imposing a two-level enhancement for threat of death under U.S.S.G.
§ 2B3.1(b)(2)(F); (2) refusing to apply a two-level reduction to reflect her minor role
in the offense under U.S.S.G. § 3B1.2(b); and (3) enhancing her sentence based on
judicial findings neither admitted by her nor proved to a jury beyond a reasonable
doubt. The government now supports the district court’s imposition of the two-level



                                          -4-
threat-of-death enhancement and the district court’s refusal to apply a two-level
reduction for minor role.

II.    DISCUSSION
       A.     Threat-of-Death Enhancement
       Jackson contends the unidentified male’s threat of death to the bank tellers
during the attempted bank robbery was not reasonably foreseeable to her, and
therefore, the district court misapplied a two-level enhancement for threat of death.
Whether a co-conspirator’s actions were reasonably foreseeable is a question of fact
reviewed for clear error. United States v. Cover, 199 F.3d 1270, 1274 (11th Cir.
2000); see also United States v. Killgo, 397 F.3d 628, 631 (8th Cir. 2005) (reviewing
for clear error the district court’s findings made on questions of relevant conduct).

       The Guidelines mandate a two-level enhancement if, during a robbery, “a threat
of death was made.” U.S.S.G. § 2B3.1(b)(2)(F). Co-conspirators are responsible for
“all reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). If a co-conspirator assaults
a victim during a robbery, the other co-conspirator

      is accountable for the assault and injury to the victim (even if the second
      defendant had not agreed to the assault and had cautioned the first
      defendant to be careful not to hurt anyone) because the assaultive
      conduct was in furtherance of the jointly undertaken criminal activity
      (the robbery) and was reasonably foreseeable in connection with that
      criminal activity (given the nature of the offense).


U.S.S.G. § 1B1.3, cmt. n.2.


     Although Jackson may not have agreed to the threat of death her co-conspirator
made during the attempted robbery, Jackson is accountable for her co-conspirator’s

                                          -5-
threatening statement. Before entering the bank, Jackson knew her co-conspirators
intended to rob the bank: “I knew the motive that they had for going in the bank, even
though they told me that it was a different motive, I knew that they were going inside
of that bank to rob that bank, and I went along with them into that bank, umm. Yes,
I was under pressure, but I knew what they were going to do.” Moreover, Jackson
knew her co-conspirators might resort to violence, because Banks and Derrick
previously had threatened Jackson and her son: “[Banks and Derrick] told me if I
didn’t get the information off the computer for them, that they were gonna set, put
gasoline on me and my son and burn us up.” The district court did not clearly err in
finding the death threat was made in furtherance of a jointly undertaken attempted
bank robbery and was reasonably foreseeable to Jackson. The district court
appropriately applied a two-level enhancement for a threat of death under section
1B1.3(a)(1)(B).


      B.     Minor Role Reduction
      Jackson next argues the district erred in declining to apply a two-level
reduction for minor role under U.S.S.G. § 3B1.2(b). A defendant is eligible for a
mitigating role reduction if the defendant’s role is relatively minor compared to the
role of other participants. United States v. Johnson, 408 F.3d 535, 538 (8th Cir.
2005). We will reverse a district court’s determination of whether a defendant was
a minor participant only if clearly erroneous. United States v. Johnson, 358 F.3d
1016, 1017 (8th Cir. 2004).


      The record shows Jackson not only actively participated in the attempted
robbery, but her involvement was essential to the commission of the offense. Without
Jackson’s participation, the attempted robbery probably would not have occurred.
Jackson worked at the bank and became knowledgeable about the bank’s layout and
closing procedures. Using this knowledge, Jackson and her co-conspirator entered
the bank shortly before the lobby closed at 5:00 p.m. and concealed themselves in the

                                         -6-
basement labyrinth until they believed the bank was empty. The district court did not
clearly err in finding Jackson did not play a minor role in the offense.


      C.     Blakely/Booker Plain Error
       Finally, Jackson contends the district court violated her constitutional rights by
enhancing her sentence based on judicial findings that were neither admitted by her
nor proved to a jury beyond a reasonable doubt, as determined in Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). In Blakely, the Supreme Court
held the State of Washington’s mandatory sentencing system was unconstitutional.
Id. at 2538. The Court extended this holding to the federal Guidelines in United
States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 756 (2005).


       Because Jackson did not object at sentencing on constitutional grounds, we
review for plain error. See Fed. R. Crim. P. 52(b); United States v. Pirani, 406 F.3d
543, 549-50 (8th Cir. 2005) (en banc). To establish plain error, Jackson must
establish “(1) error, (2) that is plain, and (3) that affects substantial rights.” Pirani,
406 F.3d at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)). If
Jackson meets these three conditions, then an appellate court may exercise its
discretion to remand for resentencing if “the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 550 (quoting Johnson,
520 U.S. at 466-67).


       Jackson satisfies the first two prongs. Id. To prove the third prong, Jackson
must show a reasonable probability “the district court would have imposed a more
favorable sentence under the advisory guidelines regime mandated by Booker.” Id.
at 547, 552. We have reviewed the sentencing transcript and find no indication the
district court would have imposed a more lenient sentence under an advisory
Guidelines system. Jackson claims Sixth Amendment plain error because her


                                           -7-
sentence was increased four levels “based on factual findings made by a judge under
the preponderance of the evidence standard”; however, Jackson does not argue the
record supports a finding that the district court would have imposed a more favorable
sentence under an advisory Guidelines regime. Therefore, Jackson has failed to prove
plain error.


III.   CONCLUSION
       We affirm Jackson’s sentence.
                       ______________________________




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