           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2    United States v. Hill                      No. 03-5138
        ELECTRONIC CITATION: 2004 FED App. 0274P (6th Cir.)
                    File Name: 04a0274p.06                              DISTRICT OF TENNESSEE, Memphis, Tennessee, for
                                                                        Appellant. Tony R. Arvin, ASSISTANT UNITED STATES
                                                                        ATTORNEY, Memphis, Tennessee, for Appellee.
UNITED STATES COURT OF APPEALS                                          ON BRIEF: Randolph W. Alden, OFFICE OF THE
                                                                        FEDERAL PUBLIC DEFENDER FOR THE WESTERN
                  FOR THE SIXTH CIRCUIT                                 DISTRICT OF TENNESSEE, Memphis, Tennessee, for
                    _________________                                   Appellant. Tony R. Arvin, ASSISTANT UNITED STATES
                                                                        ATTORNEY, Memphis, Tennessee, for Appellee.
 UNITED STATES OF AMERICA , X
             Plaintiff-Appellee, -                                                         _________________
                                   -
                                   -  No. 03-5138                                              OPINION
            v.                     -                                                       _________________
                                    >
                                   ,                                       MERRITT, Circuit Judge. The defendant in this case pled
 JAMES SAMUEL HILL,                -
          Defendant-Appellant. -                                        guilty to bank robbery. During that robbery the defendant
                                                                        was shot twice by a security guard. The sole issue on appeal
                                  N                                     is whether the district court should not have given him a
       Appeal from the United States District Court                     seven-level sentence enhancement for the discharge of a
    for the Western District of Tennessee at Memphis.                   weapon when the only shots fired were by the security guard.
     No. 02-20028—Julia S. Gibbons, District Judge.
                                                                        Facts and Procedural History
                     Argued: June 10, 2004
                                                                           On January 30, 2002, the defendant-appellant James
             Decided and Filed: August 20, 2004                         Samuel Hill robbed a bank in Lakeland, Tennessee. He did
                                                                        so by pretending to wield a weapon in the pocket of his
  Before: MERRITT and DAUGHTREY, Circuit Judges;                        jacket, though in fact he only had a hairbrush. As he started
              NIXON, District Judge.*                                   to leave the bank, a security guard ordered him to halt. When
                                                                        he turned around to face the guard, the guard fired multiple
                      _________________                                 shots, hitting him twice. Hill was apprehended, and no one
                                                                        else was hurt.
                           COUNSEL
                                                                          Hill pled guilty to bank robbery, and was eventually
ARGUED: Needum L. Germany, OFFICE OF THE                                sentenced to 132 months of imprisonment and 3 years of
FEDERAL PUBLIC DEFENDER FOR THE WESTERN                                 supervised release. This sentence was calculated based on his
                                                                        prior criminal history, the base offense level for robbery, a
                                                                        two-level enhancement because a financial institution was
                                                                        involved, a one-level enhancement because of the amount of
    *
    The Honorable John T. Nixon, United States District Judge for the   money, a seven-level enhancement because a firearm was
Midd le District of Tennessee, sitting by designation.

                                 1
No. 03-5138                        United States v. Hill     3    4      United States v. Hill                       No. 03-5138

discharged, and a three-level reduction for his accepting           Indeed, once we place the language in its intended context,
responsibility. The only issue on appeal is whether or not the    the plain language of the guidelines as a whole supports the
seven-level enhancement for the discharging of a firearm was      defendant’s reading of the statute. The guidelines provide
appropriate. The difference is substantial: Reversing the         that “relevant conduct” for the purposes of determining the
seven-level increase would require that Hill receive a sentence   specific offense characteristics “shall be determined on the
in the 63-78 month range instead of the 120-150 month range       basis of the following:”
on which his sentence of 132 months was based.
                                                                      (1)(A) all acts and omissions committed, aided, abetted,
  For the reasons stated below, we REVERSE the district               counseled, commanded, induced, procured, or willfully
court and order that his sentence be recalculated without the         caused by the defendant, and
seven-level enhancement.
                                                                      (B) in the case of a jointly undertaken criminal activity
Discussion                                                            (a criminal plan, scheme, endeavor, or enterprise
                                                                      undertaken by the defendant in concert with others,
   The district court’s application of the seven-level                whether or not charged as a conspiracy), all reasonably
enhancement was based on Section 2B3.1.(b)(2)(A) of the               foreseeable acts and omissions of others in furtherance of
sentencing guidelines for robberies, which reads “If a firearm        the jointly undertaken criminal activity, that occurred
was discharged, increase by 7 levels.” The government’s               during the commission of the offense of conviction, in
primary argument is that the plain language of the guideline          preparation for that offense, or in the course of
be followed: A firearm was discharged, so the increase                attempting to avoid detection or responsibility for that
should apply. The defendant, by contrast, argues that                 offense.
although the guidelines are written in the passive voice, they
do not mean that the increase should be applied no matter         U.S.S.G. § 1B1.3(a) (emphasis added).
who discharged the firearm and no matter what the
circumstances.                                                       In this case, there is no showing that the defendant
                                                                  “willfully caused” the guard to shoot him. Although such a
  At the outset, we reject the argument that just because the     circumstance is not unimaginable, it certainly cannot be
language is written in the passive voice the enhancement          inferred from the conviction for the underlying offense alone.
should apply in this case. According to that logic, Section       And although the trial court judge may or may not have been
2B3.1.(b)(2)(C) would require a five-level enhancement so         correct that there was “great foreseeability” that “some action
long as a gun were possessed, presumably even by a security       might be taken against” the defendant during the commission
guard or anyone else on the scene. Likewise, the guidelines       of this crime, App. 45, the guidelines only attribute
would require a three-level enhancement if “a dangerous           reasonably foreseeable acts to the defendant when they are “in
weapon was otherwise. . .possessed,” § 2B3.1.(b)(2)(E), and       furtherance of” a “jointly undertaken criminal activity.”
a two-level enhancement if “a threat of death was made,”          Clearly the security guard’s actions do not fall in this
§ 2B3.1.(b)(2)(F). Common sense counsels against such a           category.
reading of the statute.
                                                                    Although this is a case of first impression in the Sixth
                                                                  Circuit, the Seventh Circuit has reached the same conclusion
No. 03-5138                         United States v. Hill     5    6    United States v. Hill                       No. 03-5138

in a similar case. In United States v. Gordon, 64 F.3d 281           Because there has been no showing that the defendant
(7th Cir. 1995), in facts very similar to these, a defendant was   willfully caused the discharge of the weapon, and because
shot by a security guard during a bank robbery. Even though        reasonable foreseeability is not relevant for actions by third
in that case the robber had actually physically elbowed the        parties not in furtherance of a joint undertaking, the district
guard and tried to run away, the court held that the               court is REVERSED with respect to the seven-level
enhancement should not apply. Id. at 283 (“[A] defendant           enhancement, and the case is REMANDED for hearings
cannot be said to have induced or willfully caused a guard to      consistent with this opinion.
discharge a firearm simply because he committed the
underlying offense of robbery, for that by itself shows no
desire or intent regarding the firearm discharge.”). The
Gordon court also noted that reasonable foreseeability was
not sufficient for the enhancement to apply under the
guidelines with respect to the actions of third parties. Id.
   The United States points to two cases in two other circuits
that allegedly support its reading of the guidelines. However,
even if we were to find the reasoning in those cases
persuasive, they are easily distinguishable on the facts. In
United States v. Roberts, 203 F.3d 867 (5th Cir. 2000), a
policeman had laid down his gun to cuff two suspects when
one of them lunged for it and a struggle ensued. During the
struggle one of the suspects started striking the policeman in
the face. Id. at 868. Fearing they would take the gun from
him, the policeman attempted to empty his gun into the air,
managing to get two shots off. Id. The court upheld the
enhancement, distinguishing the case from Gordon by
reasoning that the Roberts suspect willfully caused the
discharge of the weapon by wrestling for it and attacking the
policeman. Id. at 870. And in United States v. Williams, 51
F.3d 1004 (11th Cir. 1995), the same enhancement was
upheld when a would-be carjacker was fired upon by a
passenger in the car. However, in that case the defendant
himself fired at the car as it sped away, an act the court ruled
was during the commission of the offense. Id at 1008. The
Williams court did opine that carjacking with a weapon drawn
could be considered to cause a victim to fire his own weapon
for the purposes of the offense level, id. at 1011, but such a
ruling was unnecessary dicta, and in any case we reject that
reasoning for the reasons stated above.
