                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3969
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri
Eddie P. Roberts,                       *
                                        *     [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: September 9, 2002

                                  Filed: September 23, 2002
                                   ___________

Before McMILLIAN, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.
                          ___________

PER CURIAM.

       Eddie P. Roberts appeals from a final judgment entered in the United States
District Court1 for the Western District of Missouri sentencing him to 108 months
imprisonment, three years supervised release, and a special assessment of $100 for
committing a bank robbery. United States v. Roberts, No. 99-00099-02-CR-W-4
(W.D. Mo. Dec. 14, 2001) (judgment). The sentence from which Roberts appeals was
imposed after this court remanded the case for resentencing in an earlier appeal. See

      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
United States v. Roberts, 253 F.3d 1131 (8th Cir. 2001) (affirming in part and
reversing in part). Now, for reversal, Roberts argues that the district court erred in
applying a five-level sentencing enhancement pursuant to U.S.S.G. §§ 1B1.3(a)(1)(B)
(relevant conduct includes all reasonably foreseeable acts and omissions of others in
furtherance of jointly undertaken criminal activity) and 2B3.1(b)(2)(C) (5-level
increase if a firearm was brandished or possessed), based upon the fact that
Carl F. Mitchell, with whom Roberts committed the bank robbery, possessed a gun
while the two were attempting to escape from the police after the bank robbery. We
now affirm the judgment of the district court.

       Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231.
Jurisdiction is proper in this court based upon 28 U.S.C. § 1291. The notice of appeal
was timely filed pursuant to Fed. R. App. P. 4(b).

       The underlying facts are stated in detail in our prior panel decision, United
States v. Roberts, 253 F.3d at 1132-33. The following is a brief summary of the
background. After being released from prison for 1992 bank robberies, Roberts
became reacquainted with Mitchell, whom he knew from childhood, and they decided
to rob a bank together. On May 4, 1999, they executed a plan to rob a bank in Kansas
City, Missouri. Roberts stayed in the getaway car while Mitchell went inside the
bank. Mitchell held up a teller by pretending to have a gun, and then the two fled in
the car driven by Roberts. While being chased by a police car, Mitchell jumped out
of the getaway car, taking with him the money and a gun which – unbeknownst to
Roberts – Mitchell had secreted in the glove box before they left for the bank. While
being chased on foot, Mitchell discarded the money and the gun. Mitchell was
caught, and both the money and the gun were recovered by the police. Roberts was
captured shortly thereafter.

      Roberts was tried for the bank robbery and found guilty by a jury. (Mitchell
pled guilty and testified against Roberts.) Roberts was originally sentenced to 112

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months imprisonment, three years supervised release, and a special assessment of
$100. In his first direct appeal, Roberts challenged both his conviction and his
sentence. We affirmed his conviction, but reversed and remanded the case with
instructions for resentencing. See id. at 1137 (instructing the district court as to the
findings required to impose the five-level enhancement under U.S.S.G.
§§ 2B3.1(b)(2)(C) and 1B1.3(a)(1)(B)).

      At the resentencing hearing, the parties stipulated to the following facts:

      1. Roberts told Mitchell not to use the gun because it would result in a
      stiffer sentence.

      2. Mitchell never told Roberts he had a gun and never showed it to him.
      Roberts first saw the gun when Mitchell took it from the glovebox of the
      car during the escape phase.

      3. Mitchell put the gun in the glovebox of the car without Roberts’
      knowledge, prior to going to the bank.

      4. Mitchell told the teller: “I want the money and I do have a gun.”

      5. During the escape from the bank, Roberts pulled over and Mitchell
      jumped out, removing the gun from the glovebox and taking the money.
      He discarded both as he ran.

See Resentencing Tr. at 3-4.

      The district court again imposed the five-level enhancement based upon
Mitchell’s possession of the gun and, following our instructions, included the
requisite findings in its statement of reasons. See Resentencing Tr. at 8-11. In the
present appeal, Roberts argues that the district court clearly erred in finding that
Mitchell’s possession of the gun was reasonably foreseeable to him. He argues:



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            The undisputed facts were that Roberts, an experienced bank
      robber, told Mitchell not to take a gun in the bank. Mitchell followed
      Roberts’ directives on all other matters. Roberts told Mitchell to rob a
      bank close to the highway and to always ask for money in the second
      drawer. Why would Roberts assume that Mitchell would follow all of
      his advice except for that involving the gun?

Brief for Appellant at 8 (citations omitted).

      According to Roberts himself, he told Mitchell not to take a gun in the bank.
There is no evidence, however, that Roberts ever specifically told Mitchell not to put
a gun in the car. In all likelihood, it probably never occurred to either Roberts or
Mitchell that possession of a gun in the getaway car could ultimately have the same
sentencing consequences as possession of a gun during the actual bank robbery.
Therefore, notwithstanding Roberts’ warning to Mitchell not to use the gun because
it would result in a stiffer sentence, Roberts reasonably could have foreseen that
Mitchell would stash a gun in the getaway car and thus would have it during their
attempted escape. In sum, although we do not precisely agree with the district court’s
whole line of reasoning, we cannot say that the district court clearly erred in
ultimately finding that Mitchell’s possession of the gun was reasonably foreseeable
to Roberts.

      The judgment of the district court is affirmed. See 8th Cir. R. 47B.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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