986 F. 2d 1430 - United States v. Guder

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(e); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

We join these appeals because they raise identical issues. Both defendants appeal from orders of the district court denying their 21 U.S.C. § 2255 motions to vacate sentences. We affirm the judgments of the district court for the reasons stated in the memorandum and order filed in each case.

Defendants appeal those orders contending they "speak[ ] in circles." They claim that the district court erroneously concluded 18 U.S.C. § 2 is not a separate offense, posing the question: If § 2 is not a separate offense, how could they have been found guilty of violating its terms? The answer, of course, is they were not found guilty of § 2, they were found guilty of the underlying substantive offense.

As noted by the district court, § 2 does not define a crime. It defines a status. The statute merely eliminates the common law distinction between principal perpetrators and accessories. Since its passage, § 2 has provided that persons who actually commit an offense have the status of principal, and persons who aid, encourage, advise, command, induce, or obtain the commission of a crime by another also have the status of principal. As a result, both the perpetrator and the accessory have equal guilt in the eyes of the law.

Defendants have simply misunderstood the meaning of § 2 and the manner in which it is charged. Their misunderstanding, however, is not a reason for reversing the sound judgment of the district court. The mandate shall issue forthwith.

AFFIRMED.