UNITED STATES of America, Appellee, v. Jedediah W. REGENWETHER, Appellant, 300 F.3d 967

PER CURIAM. Jedediah Regenwether was convicted of two counts of solicitation to commit a crime of violence, one count of aiding and abetting attempted bank robbery, one count of aiding and abetting bank robbery, and one count of conspiracy to commit bank robbery. He was sentenced to 135 months’ imprisonment on each of the aiding and abetting charges, 120 months’ imprisonment on each of the solicitation charges, and 60 months’ imprisonment on the conspiracy charge, to be served concurrently. The district court imposed a three-level sentencing enhancement under U.S.S.G. § 2B3.1(b)(2)(

E) after finding that Regenwether’s possession of a firearm was relevant conduct under U.S.S.G. § 1B1.3. It is from this three-level enhancement that Regenwether appeals. This case involves two sets of interrelated criminal convictions. On March 13, 1998, Regenwether and Vincent Abney robbed the Boone County Community Credit Union (the Credit Union robbery). In addition to having perpetrated the Credit Union robbery, Regenwether and Abney also had attempted to rob the Security State Bank in Radcliffe, Iowa (the Radcliffe bank).

Subsequently, Regen-wether attempted to recruit James Ol-scewski for a second attempt to rob the Radcliffe bank. Olscewski became an FBI informant, and Regenwether was arrested. Regenwether cooperated with the FBI and during the course of that cooperation he admitted that he had pm-chased a shotgun to use in the Credit Union robbery. A tape recording of his attempt to recruit Olscewski revealed that part of Regen-wether’s plan for robbing the Radcliffe bank was to brandish the shotgun in an effort to intimidate bank personnel into giving him the money.

No charges resulted from the conduct surrounding the Radcliffe bank. Regenwether pleaded guilty to the Credit Union robbery and was sentenced to eighteen months in prison. Upon Regenwether’s release from prison he entered a halfway house, where he met Benjamin Kirk. After their release from the halfway house, Kirk and Regen-wether conspired on a third attempt to rob the Radcliffe bank. On September 30, 1999, Kirk, following Regenwether’s instructions, entered the bank but left without receiving any money.

On November 10, 1999, Regenwether and Kirk successfully robbed the First American State Bank and were arrested on November 22, 1999. Regenwether was charged for conduct related to the First American robbery and the aborted Radcliffe bank attempt. The Radcliffe bank charges included a conspiracy charge that dated back to Regen-wether’s aborted attempts to rob the Radcliffe bank with Abney and Olscewski. Regenwether was convicted on all charges in May of 2001.

At sentencing, the government objected to the presentence report’s failure to include an enhancement for possession of the shotgun as conduct relevant to the Radcliffe bank charges. Following a hearing, the district court determined that Re-genwether’s possession of the shotgun before his conviction for the Credit Union robbery was conduct relevant to the Radcliffe bank charges. The court made two alternative findings of fact. First, possession of the shotgun was relevant conduct because Regenwether intended to use the shotgun in the second attempt to rob the Radcliffe bank.

Second, possession of the shotgun was relevant conduct because Re-genwether used it to try to recruit Olszew-ski as a co-conspirator to rob the Radcliffe bank. “Whether

an act or omission constitutes relevant conduct is a factual determination.” United States v. Plumley, 207 F.3d 1086, 1091 (8th Cir.2000) (citing United States v. Georges, 146 F.3d 561, 562 (8th Cir.1998)). Thus, we review for clear error. United States v. Larson, 110 F.3d 620, 627 (8th Cir.1997) (citing United States v. Lamere, 980 F.2d 506, 510 (8th Cir.1992)). Regenwether argues that his 1998 conviction mooted any relevancy of the 1998 conduct to the 1999 charges. Regen-wether acknowledged at sentencing that the shotgun was not used to enhance his sentence for the Credit Union robbery.

Possession of the shotgun was relevant conduct as to the conspiracy to rob the Radcliffe bank. The dates of the conspiracy, as charged in the indictment, were from March 1998 until November 10, 1999. The jury found that a visit to the Radcliffe bank on March 31, 1998, and the meeting between Regenwether and Olscewski on April 1, 1998, were overt acts in furtherance of the conspiracy. Both of those acts predate Regenwether’s first conviction and clearly relate to the conspiracy to rob the Radcliffe bank.

Thus, we find that the district court did not commit clear error in determining that possession of the shotgun was relevant conduct and in imposing the three level increase. We also reject Regenwether’s assertion that Application Note 8 to § IB 1.3 prohibits the consideration of the shotgun as relevant conduct in this case.

Application Note 8 states that “offense conduct associated with a sentence that was imposed prior to the acts or omissions constituting the instant federal offense ... is not considered as part of the same course of conduct ... as the offense of conviction.” Application Note 8 is limited by its terms to offense conduct under § 1B1.3(a)(2), however. In turn, subsection (a)(2) applies only to offenses cross referenced under § 3D1.2(d). Bank robbery is not so cross referenced; thus, Application Note 8 does not apply. The sentence is affirmed.