FAYETTEVILLE -- A federal appeals court Monday reversed and remanded a bank robbery case for resentencing, saying enhancements for using a minor to commit a crime were incorrectly applied.
Kenneth Wayne Fisher Jr., 40, robbed a bank in Bentonville in August 2015. A runaway girl was traveling with Fisher at the time of the robbery. After pleading guilty, Fisher was given a two-level enhancement at sentencing for involving the under-aged girl in the robbery.
Remand
When an appellate court sends an appealed case back to the trial court for further action, the case is said to be remanded. This usually happens if the trial judge has made an error, which requires a new trial or hearing.
Source: lectlaw.com
The 8th U.S. Circuit Court of Appeals ruled Monday the girl didn't help in the Arkansas robbery, although she may have helped Fisher plan bank robberies in other states. Because the girl was not involved in the Arkansas robbery, Fisher's sentence was calculated incorrectly, justices said.
"The facts cited by the District Court fail to demonstrate that Fisher 'used or attempted to use' M.T. to commit the Arkansas Bank robbery -- the crime of conviction here," justices wrote. "First, M.T. presence in the car as Fisher's 'side kick,' 'navigator' or 'co-pilot' does not alone demonstrate Fisher's affirmative action encouraging her to assist in the Arkansas robbery considering she merely sat in the car while he robbed the Arkansas bank."
The justices said Fisher didn't involve the girl in getting a getaway car. The car was registered under a name from a driver's license Fisher stole. The girl was using that name as an alias.
Finally, justices said the District Court should have focused on whether Fisher directed, trained or otherwise encouraged M.T. to participate in the Arkansas robbery. Justices said M.T.'s use of a map application on her phone did not rise to that level.
The Arkansas robbery was part of a crime spree that resulted in banks also being robbed in Kansas, Wyoming and New Mexico. Fisher was eventually caught in California and the girl Fisher had picked up in Colorado was with him.
The girl told police she had helped Fisher plan some of the robberies in other states, but not the robbery in Arkansas.
Judge Tim Brooks found Fisher had used the girl to procure a get-away car and to plan entry and exit routes for the robbery. In June 2016, Brooks sentenced Fisher to 12 years and 6 months in federal prison and levied a $10,000 fine. Fisher also was ordered to pay restitution.
Fisher will be returned to U.S. District Court in Fayetteville and resentenced at a later date.
Fisher went into the First Security Bank at 2501 E. Central Ave. on Aug. 28, 2015. He handed a note to the teller and said, "I'd like to cash this," according to court documents. On the note, Fisher had written "Give me the money. This is not a joke. I am very serious."
The teller gave Fisher $961, according to court documents. Fisher left on foot with the loot. Police later identified Fisher through DNA and security footage.
The Fountain Valley, Calif., Police Department arrested Fisher and the girl on Nov. 16, 2015, after a 10-mile pursuit.
NW News on 07/04/2017