                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                            No. 01-40599



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellant,


                               VERSUS


                       JEREMY JEROME ARCLESE,

                                                 Defendant-Appellee.




           Appeal from the United States District Court
                 For the Eastern District of Texas
                           (1:00-CR-96-4)
                           June 13, 2002


Before DUHÉ, DeMOSS, and CLEMENT, Circuit Judges.

DeMOSS, Circuit Judge:*

      The defendant, Jeremy Arclese, along with Cliffon Weber, Andre

McClelland, and Jonathan Williams, was indicted on June 7, 2000,

for carjacking with intent to cause death or serious bodily harm.

On November, 22, 2000, Arclese pleaded guilty to the carjacking,

but specifically disavowed any involvement in his co-defendant


  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Weber’s use of a firearm to shoot the carjacking victim.                He did

not dispute the fact that he fled with Weber and the other co-

defendants in the victim’s vehicle after the shooting.

     The district court accepted Arclese’s guilty plea and ordered

a pre-sentencing report (PSR) be prepared.                 The PSR determined

that,   pursuant   to   §   2B3.1   of   the    United     States    Sentencing

Guidelines, a base-offense level of 20 applied.                 See U.S.S.G.

§ 2B3.1 (governing robbery offenses).            The PSR also recommended

several specific offense characteristics under § 2B3.1 be applied

to enhance Arclese’s sentence.       Specifically, it recommended a 13-

level enhancement because a firearm was discharged (7 points), the

victim sustained serious bodily injury (4 points), and a carjacking

occurred (2 points).        See U.S.S.G. § 2B3.1(b)(2), (b)(3)(B), &

(b)(5). Arclese objected to these proposed enhancements, asserting

that he did not join in the shooting and arguing that his very

limited involvement in the crime began after the shooting when he

fled the scene as a passenger in the victim’s car.               The district

court sustained Arclese’s objections and declined to enhance his

sentence.   The court concluded that the violent acts of Arclese’s

co-conspirator Weber were not sufficiently foreseeable to Arclese

to   justify   enhancing      Arclese’s        sentence.       See     U.S.S.G.

§ 1B1.3(a)(1)(B).       Accordingly, Arclese was sentenced, with an




                                     2
offense level of 17,2 to 37 months’ imprisonment and 3 years’

supervised release.      The government appeals here.

      The   government     asserts    jurisdiction     under      18   U.S.C.

§ 3742(b)(2), which permits the government to appeal a final

sentence if it “was imposed as a result of an incorrect application

of the sentencing guidelines.”3           In accordance with § 3742's

requirements,    the   government    secured    the   Solicitor    General’s

approval to prosecute this appeal.         Section 3742(e) defines the

parameters of our review here:

            The court of appeals shall give due regard to the
            opportunity of the district court to judge the
            credibility of the witnesses, and shall accept the
            findings of fact of the district court unless they
            are clearly erroneous and shall give due deference
            to the district court’s application of the
            guidelines to the facts.

18 U.S.C. § 3742(e).

      Having carefully reviewed the entire record in this case, and

having   fully   considered   the    parties’   respective     briefing,   we

conclude that the government has failed to demonstrate that the

district court’s findings were clearly erroneous.              Accordingly,

giving “due deference to the district court’s application of the


  2
     The offense level for robbery in 20, and Arclese received a
3-point downward departure for acceptance of responsibility.
  3
     The government’s brief asserts jurisdiction under 18 U.S.C.
§3742(b)(1), which permits the government to appeal a final
sentence imposed in “violation of law.” However, the government
clarified during oral argument that it was actually relying on
§3742(b)(2)’s provisions for appealing incorrect sentencing
guideline applications.

                                      3
guidelines to the facts,” see id., we AFFIRM the defendant’s

sentence.




                             4
Edith Brown Clement, Circuit Judge, dissenting:



     Jeremy Arclese pled guilty to participating in a carjacking

conspiracy during which another conspirator, Cliffon Jamail Weber,

shot and injured the car’s owner, John Ruffin. The District Court

rejected the recommendations of the pre-sentencing report that

Arclese’s sentence be enhanced to reflect two specific offense

characteristics: that a firearm was discharged and that the victim

sustained serious bodily injury. The District Court held that since

the shooting was not foreseeable to Arclese, he should not be held

accountable for those specific offense characteristics.

     It was clear error for the District Court to conclude that the

shooting     was    unforeseeable    because   Arclese    pled   guilty     to

conspiring to commit a crime whose very definition requires an

“intent to cause death or serious bodily harm.” 18 U.S.C. § 2119

(2002). I would reverse.

                                      I.



     Under    the    Sentencing     Guidelines,   the    punishment   for    a

conspiracy is determined by the base level for the substantive

offense (here, robbery), “plus any adjustments from such guideline

for any intended offense conduct that can be established with

reasonable certainty.” See U.S. SENTENCING GUIDELINES MANUAL § 2X1.1

(2001). However, the “reasonable certainty” standard applies only

                                      -5-
to conduct that was allegedly intended to occur, not conduct that

actually did occur. See United States v. Cabrera, 288 F.3d 163, 169

(5th Cir. 2002); see also U.S. SENTENCING GUIDELINES MANUAL § 2X1.1,

application    note    2   (noting   the       distinction   between    offense

characteristics “specifically intended” and those that “actually

occurred”). The sentencing enhancements at issue are occurrences,

not intentions, so the first question for the sentencing court is

whether those occurrences happened, and the proper standard is

whether they happened by a preponderance of the evidence. Cabrera,

277 F.3d at 169.

       There can be no question that a firearm was discharged and

that bodily injury occurred. Weber was convicted by a jury of the

shooting, and Ruffin, the victim, testified at Arclese’s sentencing

hearing. Arclese does not contest these facts.

                                     II.



       The inquiry does not end there, however, because a defendant

is only accountable for facts which constitute “relevant conduct”

under §1B1.3 of the Sentencing Guidelines. Subsection (a)(1)(B)

provides that    “in    the   case   of    a   jointly   undertaken    criminal

activity” sentence enhancements shall be determined on the basis of

“all   reasonably     foreseeable    acts      and   omissions   of   others   in

furtherance of the jointly undertaken criminal activity.”

       Because the shooting was both in furtherance of conspiracy and



                                     -6-
reasonably foreseeable, Arclese should have been held accountable.

The district court found that the shooting was not foreseeable, and

we are obliged to defer to the district court’s factfinding unless

“clearly erroneous.” 18 U.S.C. § 3742(e) (2002). This is a case of

clear error.

     Arclese       was    indicted    and        pled   guilty   to    one     count    of

conspiracy to violate 18 U.S.C. § 2119(2), the subsection of the

federal    carjacking       statute       that    applies   when     “serious    bodily

injury... results.” Carjacking, a form of robbery, is defined as

taking     a    motor    vehicle     by    either       “force   and    violence”       or

“intimidation” with “the intent to cause death or serious bodily

injury.” 18 U.S.C. § 2119. The District Court even granted a 2-

point enhancement to Arclese’s sentencing level because the robbery

involved a carjacking, also defined in the guidelines to require

“force and violence” or “intimidation.” See U.S. SENTENCING GUIDELINES

MANUAL § 2B3.1, application note 1.

     It has long been established that “a guilty plea is an

admission of all the elements of a formal criminal charge.” See

McCarthy v. United States, 394 U.S. 459, 466 (1969); see also

United States v. Trevino, 131 F.3d 1140, 1141 (5th Cir. 1997) (“By

entering his plea of guilty, [defendant] admitted all the elements

of   the       charge    contained    in     this       conspiracy     count    of     the

indictment.”). Arclese does not assert that his plea was anything

but knowing and voluntary, so he is deemed to have admitted the

elements of the conspiracy offense.

                                           -7-
      One element of a conspiracy charge is that the defendant have

“at   least   the   degree   of     criminal     intent    necessary   for    the

substantive offense itself.” See United States v. Ingram, 360 U.S.

672, 678 (1959) (emphasis in original) (citation omitted); see also

United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001);

United States v. Dadi, 235 F.3d 945, 950 (5th Cir. 2000). Arclese

is deemed to have admitted to having had an intent to cause bodily

harm.

      Logically     speaking,      it   is    impossible    that   Arclese    both

intended to cause bodily harm yet could not have foreseen that it

would actually occur. And practically speaking, the very nature of

a criminal robbery conspiracy is such that one’s co-conspirator

might engage in unplanned violence. The Sentencing Guidelines

reflect this common sense proposition in one of the examples.

      For example, two defendants agree to commit a robbery
      and, during the course of that robbery, the first
      defendant assaults and injures a victim. The second
      defendant is accountable for the assault and injury to
      the victim (even if the second defendant had not agreed
      to the assault and had cautioned the first defendant to
      be careful not to hurt anyone) because the assaultive
      conduct was in furtherance of the jointly undertaken
      criminal activity (the robbery) and was reasonably
      foreseeable in connection with that criminal activity
      (given the nature of the offense).

§ 1B1.3, application note 2 (emphasis added).



      Courts have uniformly agreed that violence is inherent in

robberies     and   found   such    occurrences     to     be   foreseeable   and



                                        -8-
accountable to a defendant. See United States v. Hickman, 151 F.3d

446, 463 (5th Cir.1998) (murder during a restaurant robbery), reh’g

granted and opinion vacated, 165 F.3d 1020 (1999), aff’d by an

equally divided court, 179 F.3d 230 (1999) (per curiam); United

States v. Parker, 241 F.3d 1114, 1118 (9th Cir. 2001) (physical

restraint in a bank robbery); United States v. Cover, 199 F.3d

1271, 1274-75 (11th Cir. 2000) (carjacking as part of an unplanned

escape); United States v. Lambert, 995 F.2d 1006, 1009 (10th Cir.

1993) (death threat made to bank teller); United States v. Dixon,

982 F.2d 116, 120 (3rd Cir. 1992) (feigned gun possession in a bank

robbery); United States v. Fitzwater, 896 F.2d 1009, 1012 (6th Cir.

1990) (bank teller’s injury from being forced to lie on the floor

during a robbery).

      In fact, courts have held defendants accountable for harms

caused by persons not involved in the crime, as long as the

defendant or another conspirator “put into motion” events risking

harm. See United States v. Molina, 106 F.3d 1118, 1122-25 (2d Cir.

1997); United States v. Williams, 51 F.3d 1004, 1011-12 (11th Cir.

1995), overruled on unrelated grounds by Jones v. United States,

526 U.S. 227 (1999). In Molina, defendant was held accountable for

the bodily injury that resulted when, in the course of an armored

car robbery, a guard accidently shot an innocent bystander. 106

F.3d at 1122-25. In Williams, defendant’s attempted carjack ran

afoul when the passenger-side occupant pulled a weapon concealed


                               -9-
beneath his seat and accidently shot the driver, and the Eleventh

Circuit    upheld    a    sentencing     enhancement    under      the   federal

carjacking statute because death resulted. 51 F.3d at 1011-12.

     These   cases       establish   that     defendants    are    to    be   held

accountable for certain risks inherent in the particular criminal

enterprise    they       undertake   because     such      risks   are    always

foreseeable. The risk that bodily injury will occur inheres in the

crime of carjacking because the crime involves, by definition,

“intent to cause death or serious bodily harm.” 18 U.S.C. § 2119.

     Because the District Court committed clear error in failing to

hold Arclese accountable for the facts which resulted from the

risks inherent in the crime to which he pled guilty, I respectfully

dissent.




                                       -10-
