## Facts

- A group planned and executed an armed robbery of Community Bank in Pasadena, California, taking about $21,619.
- The robbery was organized primarily by Larry Washington and Derrick O’Neal, with Edward Warren; they selected the bank the day before the robbery.
- On the morning of the robbery, Allen met with the group outside Warren’s home to plan; the use of firearms was discussed, Washington displayed a bag of guns from his truck, and another participant displayed a gun.
- The group drove to the bank in four vehicles, including a stolen van intended for use as a getaway vehicle.
- Five men entered the bank while Allen served as the designated getaway driver and remained outside; Allen was unarmed during the robbery.
- During the robbery, a participant used a firearm to pistol-whip two bank employees.
- After the robbery, Allen was not in the getaway van when others fled; he was later picked up by other participants and arrested with them the same day.
- A jury convicted Allen of conspiracy to commit armed bank robbery (18 U.S.C. § 371), armed bank robbery (18 U.S.C. § 2113(a), (d)), and a firearm offense under 18 U.S.C. § 924(c).

## Issues

1. Whether the evidence was sufficient to sustain Allen’s § 924(c) conviction where he did not personally carry a gun and acted as an unarmed getaway driver outside the bank.
2. Whether admission of an agent’s testimony relaying a co-conspirator’s statement about Washington bringing a “crew” used in a prior robbery violated the Confrontation Clause or was improper under Federal Rule of Evidence 801(d)(2)(E).
3. Whether a mistrial was required after a government witness mentioned Allen’s prior incarceration.
4. Whether the district court failed to recognize its authority to depart downward at sentencing based on Allen’s personal history and the impact of a prior conviction.
5. Whether the sentence violated the Sixth Amendment under a mandatory Guidelines regime based on judge-found facts, and what remedy applied when the original sentencing judge was unavailable.

## Decision

- The Ninth Circuit affirmed Allen’s convictions on all counts.
- The court held the § 924(c) evidence was sufficient because Allen knowingly participated in a robbery he understood would be carried out with firearms, supporting liability on aiding-and-abetting and conspiracy-based theories.
- The court held the challenged statement was admissible as a co-conspirator statement made during and in furtherance of the conspiracy and was nontestimonial for Confrontation Clause purposes.
- The court held the district court did not abuse its discretion in denying a mistrial; the brief reference to prior incarceration did not render the trial unfair.
- The court rejected Allen’s claim that the district court misunderstood its departure authority, reading the record as reflecting an understood but unexercised discretion.
- The court vacated the sentence and remanded for resentencing under post-Booker Ninth Circuit procedures, to be conducted by a different judge because the original judge was unavailable.

## Legal Principles

- A defendant may be convicted under 18 U.S.C. § 924(c) based on a co-participant’s firearm use when the defendant knowingly and actively participates in a planned armed robbery, even if the defendant is unarmed and remains outside as the driver.
- Evidence is sufficient if, viewing the record in the government’s favor, a rational juror could find the essential elements beyond a reasonable doubt.
- Statements by a conspirator are admissible under Federal Rule of Evidence 801(d)(2)(E) when a conspiracy existed, the defendant was a member, and the statement was made during and in furtherance of the conspiracy.
- Co-conspirator statements made during and in furtherance of a conspiracy are treated as nontestimonial for Confrontation Clause analysis.
- A district court’s discretionary refusal to depart downward is generally not reviewable absent a clear indication the court believed it lacked legal authority to depart.
- Sentences imposed under a mandatory Guidelines regime and increased by judge-found facts require a limited remand or resentencing consistent with Booker-era remedial rules; resentencing may be assigned to a different judge when necessary.

## Conclusion

The Ninth Circuit upheld Allen’s conspiracy, armed bank robbery, and § 924(c) convictions because the record supported that he knowingly joined an armed robbery and the evidentiary and trial-management rulings were within constitutional and discretionary bounds, but it vacated the sentence and remanded for resentencing under the advisory Guidelines framework.


United States v. Allen, 425 F.3d 1231 (9th Cir. 2005)