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United States v. Fisher

United States Court of Appeals, Eighth Circuit

July 3, 2017

United States of America Plaintiff- Appellee
v.
Kenneth Wayne Fisher, Jr. Defendant-Appellant

          Submitted: April 3, 2017

         Appeal from United States District Court for the Western District of Arkansas - Fayetteville

          Before SMITH, Chief Judge, ARNOLD and SHEPHERD, Circuit Judges.

          SHEPHERD, Circuit Judge.

         Kenneth Fisher pled guilty to an Arkansas bank robbery, in violation of 18 U.S.C. § 2113(a). The district court sentenced him to 150 months imprisonment after applying a two-level enhancement to the United States Sentencing Guidelines offense level for using a minor to commit the crime. Having jurisdiction under 28 U.S.C. § 1291, we reverse and remand for resentencing.

         I. Background

         On August 28, 2015 in Bentonville, Arkansas, Fisher slipped a note to a bank teller reading:

"Give me the money. This is not a joke. I am very serious."

The teller handed over $961 after Fisher said, "I'm not kidding." Fisher ditched his cap and shirt nearby as he left the bank. A fifteen-year-old female runaway (hereinafter "M.T.") waited in the getaway car during the robbery.

         DNA evidence from his discarded shirt and surveillance video footage were used to identify Fisher. He was arrested about three months later when he ran out of gas during a high-speed chase following a traffic stop in California. M.T. was a passenger in Fisher's car at the time of his arrest.

         Fisher, a thirty-nine year old man with a significant criminal history, first met M.T. at a Dunkin' Donuts in Colorado five months prior to his arrest. After meeting, Fisher and M.T. traveled around the country on a crime spree that allegedly included bank robberies in Kansas, Wyoming, and New Mexico-in addition to the Arkansas robbery. M.T. was sexually abused by her father at a young age and spent most of her life in foster homes prior to running away from a group foster home in Colorado just before meeting Fisher. During the investigation, M.T. said she was in love with Fisher. She admitted using Google Maps to plot entry and exit routes for some of the robberies in other states, but not the robbery in Arkansas. Fisher described M.T. as his "sidekick, " "best friend, " "co-pilot, " and "navigator" during their travels together.

         Fisher purchased the car used during the trip and registered it in the name, "Jenna Miller, " matching a driver's license that he had stolen. M.T. also used the name "Jenna Miller" as her alias.

         Fisher pled guilty to bank robbery, in violation of 18 U.S.C. § 2113(a), in the Western District of Arkansas. The district court found that Fisher "use[d] [M.T.] who participated in this entire crime spree, including procurement of the getaway car and . . . as his 'navigator' . . . to assist in the entry route and the getaway route from the robbery" and applied a two-level enhancement under USSG § 3B1.4.

         II. ...


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