                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          DEC 9 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                               Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 98-5231
 v.                                               (D.C. No. 98-CR-44-H)
                                                       (N.D. Okla.)
 MALCOLM EUGENE MOORE,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, LUCERO and KIMBALL, ** Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         The Honorable Dale A. Kimball, United States District Judge for the
District of Utah, sitting by designation.
      This direct appeal arises from Malcolm Eugene Moore’s conviction and

sentencing in federal district court for his commission of several bank robberies.

On March 5 and April 3, 1998, two Tulsa banks were robbed by two men, one of

whom carried a gun. The jury found Mr. Moore guilty of committing each of

these robberies and of aiding and abetting his co-defendant’s use of the firearm

during a crime of violence in violation of 18 U.S.C. § 924(c). The district court

sentenced Mr. Moore to 690 months pursuant to the United States Sentencing

Guidelines.

      Mr. Moore first argues there was insufficient evidence to uphold his

conviction for aiding and abetting his co-defendant, Jerome Brown, in the use of

a firearm. According to Mr. Moore, there was no evidence presented showing he

actively facilitated Mr. Brown’s use of the gun, nor that he even had any prior

knowledge Mr. Brown had a gun or was planning on using a gun during the bank

robberies. When reviewing a conviction for insufficient evidence, we consider all

the evidence in a light most favorable to the government to determine if a

reasonable jury could find the defendant guilty beyond a reasonable doubt. See

United States v. Esparsen, 930 F.2d 1461, 1470 (10th Cir. 1991). “To be guilty

of aiding and abetting a crime, the defendant must willfully associate himself with

the crime and seek to make it succeed through some action on his part.” Id. Our

review of the record convinces us the evidence was sufficient to show that Mr.


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Moore knowingly and actively participated in the armed robberies during which

he knew Mr. Brown was carrying a firearm. See United States v. Wiseman, 172

F.3d 1196, 1217 (10th Cir. 1999) (knowingly and actively participating in armed

robberies sufficient to uphold § 924(c) conviction), cert. denied 120 S. Ct. 211

(1999); United States v. Bindley, 157 F.3d 1235, 1238 (10th Cir. 1998) (same),

cert. denied 119 S. Ct. 1086 (1999). Furthermore, Mr. Moore directly facilitated

and was benefitted by Mr. Brown’s use of the firearm by collecting the robbery

proceeds while Mr. Brown brandished the weapon. See, e.g., Bazemore v. United

States, 138 F.3d 947, 949-50 (11th Cir. 1998) (upholding § 924(c) conviction

because defendant knowingly accepted protection afforded by co-defendant’s use

of a gun). As the court pointed out in United States v. Price, 76 F.3d 526, 529-30

(3rd Cir. 1996), even if the defendant did not know in advance that his co-

defendant was going to use a gun during the robbery, defendant’s continued

participation in the robbery while his co-defendant used the gun supports the

section 924(c) conviction. See also United States v. Morrow, 977 F.2d 222, 230-

31 (6th Cir. 1992) (en banc) (upholding § 924(c) conviction since co-defendant’s

use of firearm emboldened and protected defendant during commission of

underlying crime). The evidence here was sufficient for the jury to find Mr.

Moore aided and abetted Mr. Brown’s use of a firearm during the bank robberies.

      Mr. Moore next challenges his sentence. He contends his criminal history


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was overstated by the sentencing guidelines’ failure to take into account the non-

violent nature of his prior convictions, thereby creating a distortion which takes

his case out of the heartland of cases contemplated by the Sentencing

Commission. He further argues that the district court abused its discretion by

refusing to depart downward given Mr. Moore’s wholly non-violent criminal

history.

      The Sentencing Commission has found the likelihood of recidivism greater

when a defendant has a criminal history, without distinguishing whether that

history is violent or non-violent. See USSG Ch.4, intro. comment. The

Commission is within its statutory authority to weigh policy issues and make such

determinations. See 18 U.S.C. § 3553(a)(4), (5). Thus, we cannot say the

sentencing guidelines distorted Mr. Moore’s criminal history.

      Under the guidelines, Mr. Moore was assigned a criminal history category

of VI. This level was combined with the offense level of twenty-six to arrive at a

maximum total sentence of 690 months. The district court refused to grant a

downward departure from the guidelines due to its conclusion that Mr. Moore’s

case was not outside the heartland of cases considered by the Sentencing

Commission. A district court’s refusal to depart from the guidelines is a

discretionary decision that cannot be appealed. See United States v. Jones, 80

F.3d 436, 439 (10th Cir. 1996). If the district court unambiguously states it lacks


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the authority to depart from the guidelines in a particular case, however, we can

review that conclusion de novo. See United States v. Mitchell, 113 F.3d 1528,

1534 (10th Cir. 1997), cert. denied 118 S. Ct. 726 (1998). The threshold issue for

us to determine, therefore, is whether the district court unambiguously stated it

lacked the authority to make a downward departure.

      The district court held Mr. Moore’s case was not outside the heartland of

cases considered by the Sentencing Commission “for purposes of this Court

having any freedom to engage in a downward departure.” Rec. vol. XIII at 8.

Assuming the district court was ambiguous regarding its authority to grant a

departure, that ambiguity is not enough for this court to review its decision. The

district court must unambiguously state it lacks authority to downward depart

before we will review the decision not to depart. See United States v. Rodriguez,

30 F.3d 1318, 1319 (10th Cir. 1994). Absent such an unambiguous statement, we

assume the district court “made a discretionary decision not to depart, not a legal

decision that it had no authority to depart.” United States v. Fortier, 180 F.3d

1217, 1231 (10th Cir. 1999). We therefore have no jurisdiction to review the

district court’s decision not to depart from the guidelines when it sentenced Mr.

Moore.




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For the reasons stated above, we AFFIRM.

                             ENTERED FOR THE COURT


                             Stephanie K. Seymour
                             Chief Judge




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