               Case: 14-10255        Date Filed: 07/06/2015      Page: 1 of 32


                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 14-10255
                               ________________________

                      D.C. Docket No. 1:12-cr-00183-TWT-JSA-1


UNITED STATES OF AMERICA,

                                                                          Plaintiff - Appellee,

                                             versus

HERBERT CLIFTON HECTOR,

                                                                      Defendant - Appellant.
                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                             _______________________
                                    (July 6, 2015)

Before TJOFLAT, WILLIAM PRYOR, and BARKSDALE, ∗ Circuit Judges.

PER CURIAM:




∗
 Honorable Rhesa H. Barksdale, United States Circuit Judge for the Fifth Circuit, sitting by
designation.
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      As stated in the instant Judgment In A Criminal Case, Herbert Clifton

Hector was convicted of “[c]onspiracy to commit armed bank robbery”, in

violation of 18 U.S.C. § 371 (count 1); “[a]rmed bank robbery”, in violation of 18

U.S.C. § 2113(a), (d) (count 2); and “[b]randishing a firearm during a crime of

violence (bank robbery)”, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count 3).

Hector primarily challenges the instructions given the jury for counts 2 and 3,

claiming the court erred by failing to instruct the jury adequately on “advance

knowledge”, as required by Rosemond v. United States, 134 S. Ct. 1240, 1249

(2014). AFFIRMED.

                                         I.

      On 15 May 2012, Hector and his co-conspirator, Jackson, robbed a Wells

Fargo bank at gunpoint. The two arrived at the bank together in the same vehicle.

Video-surveillance evidence shows Hector holding the bank’s door open for

Jackson, who entered the bank with his handgun drawn. Both men were wearing

masks. After each man demanded money from the bank’s tellers, they put

approximately $12,000 into a bag carried by Hector, while Jackson pointed the

weapon at one of the tellers. The video reflects an obviously well-planned and

-coordinated robbery; it lasted only approximately 40 seconds. Both men then

escaped in the vehicle in which they had arrived at the bank; it was driven by

Jackson, with Hector in the front passenger seat.

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      The police were alerted to the getaway vehicle’s location by a GPS tracking

device embedded with the money in the bag Hector carried. Police pursued that

vehicle, with speeds reaching 99.5 miles per hour. While exiting the highway, the

vehicle collided with another vehicle.

      After the collision, Jackson and Hector exited the vehicle and both ran

towards a QuikTrip filling station just off the exit ramp. They then ran in different

directions. Jackson fled to a nearby hotel, where police found him, in possession

of a handgun. Hector ran in the opposite direction, through a large drainage tunnel

that passed under a highway. He then ran through a warehouse, in which an

employee was working. Hector was apprehended in a smaller drainage tunnel on

the other side of that warehouse.

      In June 2012, Jackson and Hector were indicted for: committing, and aiding

and abetting the commission of, armed bank robbery, in violation of 18 U.S.C.

§§ 2113(a), (d); and using, and aiding and abetting the use of, a firearm during a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). After Jackson

pleaded guilty to both counts, a May 2013 superseding indictment charged Hector

with: conspiracy to commit bank robbery by use of a handgun, in violation of 18

U.S.C. §§ 2113(a), (d) and 2 (count 1); committing, or aiding and abetting, bank

robbery by use of a handgun, in violation of 18 U.S.C. §§ 2113(a), (d) and 2 (count




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2); and committing, or aiding and abetting, the knowing use and carrying of a

firearm during and in relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii) and 2 (count 3). Count 1 provided a number of overt acts,

including brandishing a handgun. Counts 2 and 3 incorporated those overt acts by

reference.

      At trial, the Government presented the video recording that captured the

robbery, including Jackson’s brandishing the handgun. And, the Government

presented witnesses who testified to Hector’s and Jackson’s coordinated actions

during the robbery. It, however, did not present direct evidence of events before

the robbery began.

      After the Government rested, Hector moved unsuccessfully for judgment of

acquittal on count 3. In other words, he did not seek that relief for counts 1 and 2.

Subsequently, Hector did not present evidence.

      At the charge conference, the Government proposed instructing the jury on,

inter alia, aiding and abetting (defendant aids and abets a person if he intentionally

joins with the person to commit a crime, and is a willful participant and not merely

a knowing spectator) and Pinkerton (reasonable foreseeability), see Pinkerton v.

United States, 328 U.S. 640 (1946). On the other hand, for aiding and abetting,

Hector requested the court to instruct that, to convict for either armed bank robbery

(count 2) or aiding and abetting the carrying of a firearm in relation to a crime of

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violence (count 3), the jury must find Hector had actual knowledge that Jackson

would use a firearm in the commission of the robbery. Hector also requested the

court instruct: that, to convict under Pinkerton, the jury must find the use of the

firearm was “reasonably foreseeable . . . as a necessary or natural consequence of

the unlawful agreement”, which is more specific than the eleventh circuit pattern

jury instructions; and on the lesser-included offense of unarmed bank robbery. The

court denied Hector’s requests and gave the eleventh circuit pattern jury

instructions, to which Hector objected.

       At the Government’s request, and over Hector’s objection, the court

amended the jury verdict form to include a special interrogatory, asking whether a

firearm was “brandished” during the robbery. Hector objected unsuccessfully to

that amendment, claiming it constituted a constructive amendment to the

indictment.

       After instructing the jury on conspiracy, armed bank robbery, and carrying a

firearm in relation to a crime of violence, the district court explained aiding-and-

abetting liability to the jury:

              A Defendant aids and abets a person if the Defendant
              intentionally joins with the person to commit a crime. A
              Defendant is criminally responsible for the acts of
              another person if the Defendant aids and abets the other
              person. A Defendant is also responsible if the Defendant
              willfully directs or authorizes the acts of an agent,
              employee or other associate. But finding that a Defendant
              is criminally responsible for the acts of another person
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             requires proof that the Defendant intentionally associated
             with or participated in the crime, not just that the
             Defendant was simply present at the scene of a crime or
             knew about it. In other words, you must find beyond a
             reasonable doubt that the Defendant was a willful
             participant and not merely a knowing spectator.

Hector unsuccessfully renewed his objection to the aiding-and-abetting instruction,

based on its lacking a knowledge component.

      During its deliberations, the jury asked the judge whether Hector must have

been in physical possession of the firearm to be considered “carrying” it. The

judge responded in the negative, explaining, once again, that the jury could convict

Hector of carrying and using a firearm in furtherance of a violent crime under

either aiding-and-abetting or Pinkerton liability.

      The jury convicted Hector on all three counts and found a firearm was

“brandished” during the course of the robbery. After sentencing, the court entered

the earlier-described judgment for conspiracy to commit armed bank robbery,

armed bank robbery, and brandishing a firearm in the commission of a crime of

violence.

      At sentencing, the court imposed a two-level enhancement for reckless

endangerment during flight, pursuant to Sentencing Guideline § 3C1.2, based on

the “overwhelming” evidence that Jackson and Hector acted in concert and aided

and abetted each other throughout the robbery, and its finding they “acted in

concert when they left the bank in the getaway car that had been provided by Mr.
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Hector” and “by each fleeing after the vehicle crashed”. (The court, however,

noted it did not find Hector’s flight on foot “in and of itself [was] sufficient to

apply the reckless endangerment enhancement, but the fact that he did flee is

relevant to . . . whether he was acting in concert with Mr. Jackson during the

attempt to flee in the automobile”.) Hector unsuccessfully objected to the

application of the enhancement on the grounds he was not driving the getaway

vehicle.

      Hector’s advisory Guidelines sentencing range was 155 to 171 months’

imprisonment. The court imposed a 163-month sentence, comprised of concurrent

terms of 60 months’ imprisonment for count 1 and 79 for count 2, with 84 months’

for count 3 to be served consecutively. Hector objected to the court’s application

of the reckless-endangerment enhancement, as well as to the substantive

reasonableness of the sentence, claiming it was greater than necessary under the 18

U.S.C. § 3553(a) sentencing factors.

                                           II.

      Hector does not contest his conviction for conspiracy to commit armed bank

robbery (count 1). He challenges: the aiding-and-abetting and Pinkerton

instructions; the court’s refusing a lesser-included-offense instruction for unarmed

bank robbery; its including the question on the jury verdict form regarding




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“brandishing” as to count 3; the sufficiency of the evidence for counts 2 and 3; and

the procedural and substantive reasonableness of his sentence.

                                          A.

                                          1.

      In challenging his proposed aiding-and-abetting instructions’ being refused,

Hector contends his convictions on counts 2 and 3 should be vacated because the

court failed to instruct the jury that it must find Hector had “advance knowledge”

that a weapon would be used, as required by Rosemond, 134 S. Ct. at 1249.

(Rosemond applies in this instance because it was decided while this appeal was

pending. See Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (“[F]ailure to apply a

newly declared constitutional rule to criminal cases pending on direct review

violates basic norms of constitutional adjudication”.).) Alternatively, he contends

the court erred in failing to include in its aiding-and-abetting instructions language

requiring the jury to find he had “actual knowledge”, “to a practical certainty”, that

Jackson would use the firearm. “[T]he legal correctness of a jury instruction [is

reviewed] de novo”. United States v. Wilk, 572 F.3d 1229, 1236–37 (11th Cir.

2009); see also United States v. Felt, 579 F.3d 1341, 1342 (11th Cir. 2009).

      As noted, Hector does not challenge his conviction on count 1 for conspiracy

to commit armed bank robbery. For the predicate offense (count 2), a person

commits armed bank robbery by “assault[ing] any person, or put[ing] in jeopardy

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the life of any person by the use of a dangerous weapon or device” while

committing or attempting to commit bank robbery. 18 U.S.C. § 2113(d). Along

that line, bank robbery occurs when, “by force and violence, or by intimidation, [a

defendant] takes, or attempts to take, from the person or presence of another . . .

money or any other thing of value belonging to” a bank, or by entering a bank with

the intent to do the aforementioned. 18 U.S.C. § 2113(a). Because armed bank

robbery subjects Hector to an enhanced maximum imprisonment, compare

§ 2113(a) with (d), his charged use of the firearm to commit the bank robbery is a

separate element which must be submitted to the jury. See Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000). For count 3, § 924(c) criminalizes using or

carrying a firearm “in relation to any crime of violence . . . ”. 18 U.S.C.

§ 924(c)(1)(A). Therefore, for each offense charged in counts 2 and 3, the

Government was required to prove the commission of the bank robbery, as well as

use of the firearm in connection with that offense. See Rosemond, 134 S. Ct. at

1247.

        The Government concedes Hector did not carry a firearm, but contends he

aided and abetted Jackson, who did carry one. “[A] person is liable under [18

U.S.C.] § 2 for aiding and abetting a crime if (and only if) he (1) takes an

affirmative act in furtherance of that offense, (2) with the intent of facilitating the

offense’s commission”. Rosemond, 134 S. Ct. at 1245.

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                                           a.

      Regarding the claimed error for not instructing on “advance knowledge”, the

Court, in Rosemond, considered the adequacy of aiding-and-abetting instructions in

the context of a § 924(c) offense. It held the intent element of aiding and abetting

is satisfied “when [the defendant] knows that one of his confederates will carry a

gun”, which requires “advance knowledge—or otherwise said, knowledge that

enables him to make the relevant legal (and indeed, moral) choice” whether to

participate in the offense. Id. at 1249.

      For Hector’s trial, as quoted supra, the jury was instructed that “[a]

Defendant aids and abets a person if the Defendant intentionally joins with the

person to commit a crime. . . . In other words, you must find beyond a reasonable

doubt that the Defendant was a willful participant and not merely a knowing

spectator”. But, because the instructions did not state that Hector must have had

“advance knowledge” that Jackson would use a firearm during the robbery, and

instead explained aiding and abetting as “intentionally joining to commit the

crime” and being a “willful participant”, the court erred.

      On the other hand, jury-instruction errors are subject to harmless-error

review. E.g., United States v. Webb, 655 F.3d 1238, 1249 n.8 (11th Cir. 2011).

“An error is harmless if the reviewing court is satisfied beyond a reasonable doubt

that the error complained of did not contribute to the verdict obtained.” United

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States v. House, 684 F.3d 1173, 1197 (11th Cir. 2012) (citation and internal

quotation marks omitted). The court may consider sua sponte the issue of

harmless error, see, e.g., United States v. Adams, 1 F.3d 1566, 1575–76 (11th Cir.

1993); and the Government bears the burden of showing the error was harmless

beyond a reasonable doubt, e.g., United States v. Turner, 474 F.3d 1265, 1276

(11th Cir. 2007). In that regard, and prior to oral argument here, our court directed

the parties to be prepared to discuss whether any error under Rosemond was

harmless in the light of Hector’s unchallenged conviction for conspiracy to commit

armed bank robbery.

      As noted, judgment was entered against Hector for conspiracy to commit

armed bank robbery; and, as also noted, he does not challenge that conviction. For

that conviction, however, the court did not instruct the jury on conspiracy to

commit armed bank robbery, instead describing count 1 as conspiracy to commit

bank robbery (“Count 1 charges that the Defendant knowingly and willfully

conspired to commit bank robbery”), and only explaining conspiracy in general

terms. Similarly, for count 1, the jury verdict form listed “Conspiracy to Commit

Bank Robbery”.

      Nevertheless, the superseding indictment in count 1 charged Hector with

conspiracy to commit armed bank robbery, and listed eight overt acts, some of

which involved the use of a firearm. Further, the jury had the indictment during its

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deliberations. And, the judgment against Hector stated: “The defendant was found

guilty by jury on Count(s) 1, 2, 3 of the Superseding Indictment” and then

described count 1 as “Conspiracy to commit armed bank robbery”.

      In district court, Hector neither objected to the conspiracy instruction or jury

verdict form for count 1, nor challenged the conviction due to either error.

Moreover, on appeal, Hector does not challenge that erroneous instruction on count

1, instead simply noting the erroneous description for the first time in a footnote in

his reply brief. Therefore, for considering harmless error vel non, we take into

consideration Hector’s conviction for conspiracy to commit armed bank robbery.

      In this instance, to find the error in the instruction on count 2 did not

contribute to the verdict, the finding of guilt for conspiracy to commit armed bank

robbery must necessarily equate to finding “advance knowledge”. To prove

conspiracy, the Government “must prove (1) the existence of an agreement to

achieve an unlawful objective . . . ; (2) the defendant[’s] knowing and voluntary

participation in the conspiracy; and (3) an overt act in furtherance of the

conspiracy”. United States v. McNair, 605 F.3d 1152, 1195 (11th Cir. 2010)

(alterations, citation, and internal quotation marks omitted). And as noted supra,

one of the necessary elements of armed bank robbery is the use of a “dangerous

weapon”. 18 U.S.C. § 2113(d). Because the only firearm at issue was the firearm

Jackson carried, by finding against Hector, the jury necessarily determined Hector

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conspired to use a firearm to rob the bank. Accordingly, it is beyond a reasonable

doubt that the erroneous, pre-Rosemond aiding-and-abetting instruction did not

contribute to the verdict obtained. See United States v. Whitfield, 695 F.3d 288,

304 (4th Cir. 2012) (“[A]n instructional error is harmless in circumstances where

the jury actually made an equivalent or identical finding pursuant to another

instruction”. (internal quotation marks omitted)).

                                              b.

      Hector’s alternative claim regarding “actual knowledge” is without merit.

Although the legal correctness of an instruction is reviewed de novo, questions of

phrasing are reviewed for abuse of discretion. Wilk, 572 F.3d at 1236–37.

      Hector’s proposed “actual knowledge” language conflicts with Rosemond

and the above-explained analysis. Further, his contention that United States v.

Hamblin, 911 F.2d 551, 558 (11th Cir. 1990), requires the court to explain that

such knowledge must be known “to a practical certainty” is unsupported by this

court’s precedent. Instructions need only be substantively correct and substantially

cover the governing law, United States v. Gonzalez, 975 F.2d 1514, 1516 (11th Cir.

1992); the instructions here did just that.

                                              2.

       Hector next contends the court abused its discretion when it refused to adopt

Hector’s proposed Pinkerton-liability instruction. Again, questions of phrasing are

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reviewed for abuse of discretion. Wilk, 572 F.3d at 1237. Along that line, “district

courts have broad discretion in formulating jury instructions provided that the

charge as a whole accurately reflects the law and the facts”. Id. (internal quotation

marks omitted). “A trial court abuses its discretion in denying a requested jury

instruction when (1) the instruction is substantively correct; (2) it was not

substantially covered in the charge actually delivered to the jury; and (3) the failure

to give it seriously impaired the defendant’s ability to present an effective

defense.” Gonzalez, 975 F.2d at 1516 (internal quotation marks omitted).

      As discussed, the court used the eleventh circuit pattern jury instructions,

which instruct that a jury may convict when it finds, inter alia, that “it was

reasonably foreseeable that a coconspirator would commit the crime as a

consequence of the conspiracy”. Eleventh Circuit Pattern Jury Instructions

(Criminal Cases) § 13.5 (2010). Hector requested an instruction limiting Pinkerton

liability only to those consequences that were “reasonably foreseeable . . . as a

necessary or natural consequence of the agreement”. The distinction between the

two phrases is negligible; the pattern instruction was substantively correct, covered

“substantially” the same ground as Hector’s requested instruction, and did not

impair his defense.




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                                           3.

      For count 2 (armed bank robbery), Hector challenges the court’s refusing to

instruct the jury on the lesser-included offense of unarmed bank robbery. He

contends that, because it is disputed whether he had “advance knowledge” that a

firearm would be used in the robbery, a rational jury could have convicted him of

the lesser offense: unarmed bank robbery. See 18 U.S.C. § 2113(a). As noted, a

district court’s refusal to give a jury instruction is reviewed for an abuse of

discretion. E.g., United States v. Yeager, 331 F.3d 1216, 1222 (11th Cir. 2003).

      When a lesser-included-offense instruction is refused, “[a]n abuse of

discretion may occur where the evidence would permit a rational jury to find the

defendant guilty of the lesser offense and not the greater”. United States v.

Gutierrez, 745 F.3d 463, 470 (11th Cir. 2014) (internal quotation marks omitted);

see also Keeble v. United States, 412 U.S. 205, 208 (1973) (“[I]t is now beyond

dispute that the defendant is entitled to an instruction on a lesser included offense

if the evidence would permit a jury rationally to find him guilty of the lesser

offense and acquit him of the greater”.). The only evidence of Hector’s “advance

knowledge” of the firearm was an inference based on Hector’s and Jackson’s

coordination during the robbery. And, although a jury could “permissibly infer”

from Hector’s continued participation in the robbery (including the video evidence

of Hector’s opening the door to the bank for Jackson, who was displaying a

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firearm) that Hector had “advance knowledge” that a weapon would be used,

Rosemond, 134 S. Ct. at 1250 n.9, the jury was not required to make that inference.

      Accordingly, because Hector did not carry the firearm, and the Government

presented no evidence regarding the events prior to Hector’s and Jackson’s

entering the bank, a rational jury could have found Hector guilty of unarmed, as

opposed to armed, bank robbery. See, e.g., United States v. Nelson, 574 F.2d 277,

282 (5th Cir. 1978). The district court, therefore, abused its discretion by refusing

to instruct on unarmed bank robbery.

      This error, however, is also harmless. As discussed, Hector’s conviction for

conspiracy to commit armed bank robbery represents an unchallenged finding that

Hector had “advance knowledge” that Jackson would use a firearm. That

conviction and the undisputed evidence of the robbery prove, beyond a reasonable

doubt, that Hector committed armed bank robbery.

                                         B.

      Hector maintains that, by including the “brandishing” question on the jury

verdict form, the court improperly constructively amended the indictment to

include a broader basis for finding him guilty, in violation of Alleyne v. United

States, 133 S. Ct. 2151 (2013) (holding that, “because the fact of brandishing

aggravates the legally prescribed range of allowable sentences, it constitutes an

element of a separate, aggravated offense that must be found by the jury”).

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Whether a court constructively amended an indictment is reviewed de novo. E.g.,

United States v. Sanders, 668 F.3d 1298, 1309 n.9 (11th Cir. 2012).

      A “district court may not broaden the charges by constructive amendment”.

Id. at 1309. “A constructive amendment to the indictment occurs where the jury

instructions so modify the elements of the offense charged that the defendant may

have been convicted on a ground not alleged by the . . . indictment.” Id. (citation

and internal quotation marks omitted).

      The court’s including the “brandishing” question on the verdict form did not

constructively amend the indictment because count 3 incorporated by reference the

overt acts alleged in count 1 (the conspiracy count), which included the allegation

that Hector and Jackson “brandished a handgun”. See Fed. R. Crim. P. 7(c)(1) (“A

count may incorporate by reference an allegation made in another count.”).

Furthermore, whether Hector “brandished” a weapon was a jury issue. See

Alleyne, 133 S.Ct. at 2160.

                                         C.

      Consistent with some of the earlier-discussed challenges to the jury

instructions, Hector challenges the sufficiency of the evidence to prove he

committed armed bank robbery (count 2) and carried or used a firearm in

furtherance of that offense (count 3) under aiding-and-abetting or Pinkerton

liability theories. He claims: because the Government presented no direct

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evidence that Hector had “advance knowledge” Jackson would use a firearm, there

is insufficient evidence to prove he aided and abetted Jackson in the armed bank

robbery (count 2) or in carrying a firearm (count 3); and, concerning Pinkerton,

such actions were also not reasonably foreseeable.

      A defendant fails to preserve his sufficiency-of-the-evidence challenge by

not moving at the close of the evidence for judgment of acquittal under Federal

Rule of Criminal Procedure 29. See, e.g., United States v. Joseph, 709 F.3d 1082,

1103 (11th Cir. 2013). Therefore, as in this instance for count 3, although

sufficiency of the evidence is normally reviewed de novo, where the defendant

fails to preserve the claim, as in this instance for count 2, it is reviewed only for

plain error. Id. Accordingly, because, unlike for count 3, Hector failed to move

for judgment of acquittal for count 2, the standard of review governing his

sufficiency challenge is bifurcated: the sufficiency of the evidence for count 3 is

reviewed de novo; but, for count 2, only for plain error. In short, for count 2,

Hector has a greater burden under plain-error review.

      For our de novo review for count 3, “[a] factual finding will be sufficient to

sustain a conviction if, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt”. United States v. Hunt, 526 F.3d 739, 745 (11th

Cir. 2008) (emphasis in original) (citation and internal quotation marks omitted).

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Even though the Government presented no evidence regarding events prior to

Hector’s and Jackson’s entering the bank, the evidence was sufficient to convict

Hector, because the jury could have determined the use of a firearm in the robbery

was a “reasonably foreseeable” consequence under Pinkerton. Likewise, for

aiding and abetting, the jury could also have permissibly inferred Hector’s

“advance knowledge” of the firearm from Hector’s continued participation in the

crime, including after opening the bank door for Jackson while he was displaying a

firearm, Rosemond, 134 S. Ct. at 1250 n.9 (“Of course, if a defendant continues to

participate in a crime after a gun was displayed or used by a confederate, the jury

can permissibly infer from his failure to object or withdraw that he had such

knowledge. In any criminal case, after all, the factfinder can draw inferences about

a defendant’s intent based on all the facts and circumstances of a crime’s

commission.”).

         Similarly, under plain-error review, the sufficiency challenge to count 2

fails.

                                           D.

         Finally, in contesting the procedural and substantive reasonableness of his

sentence, Hector claims: his sentence is procedurally unreasonable because the

court erred when it imposed the two-level enhancement to his offense level for

reckless endangerment during flight, Guideline § 3C1.2; and it is substantively

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unreasonable because he received a longer term of imprisonment for his § 924(c)

offense (count 3) than Jackson.

                                           1.

      The district court’s interpretation and application of the Guidelines are

reviewed de novo; the underlying factual findings, for clear error. United States v.

Tampas, 493 F.3d 1291, 1303 (11th Cir. 2007). This standard applies to the

reckless-endangerment enhancement. E.g., United States v. Leon, 310 F. App’x

343, 344 (11th Cir. 2009) (per curiam) (“We review de novo the application of the

reckless endangerment enhancement to a sentence and review findings of fact

related to that enhancement for clear error.”). “For a finding to be clearly

erroneous, [the court] must be left with a definite and firm conviction that a

mistake has been committed”. United States v. Barsoum, 763 F.3d 1321, 1333

(11th Cir. 2014) (citation and internal quotation marks omitted).

                                           a.

      Hector contends the enhancement is inapplicable because he was the

passenger in the getaway vehicle and the Government presented no evidence

showing he aided and abetted in the recklessness of the getaway. Guideline

§ 3C1.2 states: “If the defendant recklessly created a substantial risk of death or

serious bodily injury to another person in the course of fleeing from a law

enforcement officer, increase [the offense level] by 2 levels”. Under that

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Guideline, a “defendant cannot be held responsible for another’s conduct . . .

without some form of direct or active participation. Mere foreseeability of the

conduct is insufficient”. United States v. Dougherty, 754 F.3d 1353, 1360 (11th

Cir. 2014) (citation omitted).

      In United States v. Johnson, this court vacated the application of the

reckless-endangerment enhancement to a passenger in a getaway vehicle when the

application was based on only three pieces of circumstantial evidence: the planned

nature of the crime; defendant’s supposed awareness of the police at the scene of

the crime when he chose to get into the getaway vehicle (which was disputed); and

his flight on foot after the driver crashed the vehicle. 694 F.3d 1192, 1196–99

(11th Cir. 2012). After noting that United States v. Cook, 181 F.3d 1232, 1236

(11th Cir. 1999), requires the district court to “make a specific finding, based on

the record before it, that the defendant actively caused or procured the reckless

behavior at issue”, the Johnson court determined each of these three facts did not

support the application of the enhancement, and remanded the issue to district

court. 694 F.3d at 1196–99. (Contrary to the dissent’s characterization of

Johnson, Dissent at 29, this court did not remand only for resentencing. See

Johnson, 694 F.3d at 1198–99. Rather, it remanded for the court to “reopen the

record” to resolve “whether the district court [could] make the specific finding

required by Cook”, id. at 1199, as the dissent notes at 31.)

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      As he did at sentencing, Hector relies on Johnson for support, claiming: the

evidence does not support finding he aided and abetted the getaway; and, even if it

does, the court’s finding at sentencing that “[Hector and Jackson] together planned

the robbery” is “insufficient to justify the application of the enhancement” as a

matter of fact and law. Although Hector is correct in claiming a finding of general

involvement in the crime is insufficient to justify the enhancement’s application,

his assertion does not fairly characterize the facts at hand.

      In addition to helping plan and coordinate the quickly-executed bank

robbery (as stated, it lasted only 40 seconds), Hector’s and Jackson’s separate

flight in opposite directions supports finding that the getaway was coordinated.

Further, as adopted by the court at sentencing, the presentence investigation report

states Hector supplied the vehicle used in the robbery and getaway (it belonged to

his fiancée’s mother).

      Last, and most importantly, Johnson requires a court make a specific finding

of aiding and abetting prior to imposing the enhancement. Id. at 1198 (“On the

present record, we cannot conclude that the district court made the specific finding

required by Cook. Although the evidence may be sufficient to support an inference

that Johnson knew when he entered the getaway car that the police were on the

scene blocking the exits and that Johnson knew that Pugh would have to ram a

police car to escape (or engage in other endangering conduct to escape), . . . the

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district court made no specific finding to that effect. This failure is inconsistent

with Cook, and therefore Johnson's sentence must be vacated.”). In requiring the

court to make that finding, Johnson allows inferring Hector’s aiding and abetting

in the recklessness of the flight based on circumstantial evidence. See id. In this

instance, and unlike in Johnson, the court, after considering, in the light of

Johnson, the evidence presented both at trial and sentencing, made a specific

finding that Hector and Jackson had “acted in concert by each fleeing after the

vehicle crashed” and that “there’s simply no reason whatsoever to suspect that they

were not acting in concert with each other in aiding and abetting each other in the

course of the car chase”. Based on such evidence, this factual finding was not

clearly erroneous, and the district court did not err in its application of Johnson and

the enhancement.

      The dissent maintains Johnson prohibits applying the reckless-endangerment

enhancement based solely on evidence of coordination of the crime, and that the

differences between the facts in Johnson and here are immaterial. Dissent at 28-

31. But, as explained above, Johnson allows the district court to permissibly infer

aiding and abetting based on circumstantial evidence, and Hector’s supplying the

vehicle and his and Jackson’s “act[ing] in concert” in fleeing on foot support such

an inference. Further, the error combatted in Johnson—the district court’s failure




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to make a specific finding—is not present here; as discussed, the court made the

required finding in this instance.


                                           b.

      In the alternative, the recklessness of Hector’s flight on foot justifies the

application of the enhancement. See, e.g., United States v. Lee, 391 F. App’x 831,

835 (11th Cir. 2010) (“Even if the district court failed to make such findings,

however, we may still affirm if the record clearly reflects the basis for the

enhancement and supports it.” (internal quotation marks omitted)). This aspect of

the record shows the enhancement was applied correctly.

      The Government did not raise this flight-on-foot contention in its brief to

this court. Although this failure to raise the issue in its brief normally constitutes

waiver, it is within the court’s discretion to consider the issue where “the proper

resolution is beyond any doubt”. United States v. Godoy, 821 F.2d 1498, 1504

(11th Cir. 1987) (internal quotation marks omitted). The Government advanced

this issue at sentencing and to this court at oral argument, and the underlying facts

were discussed in both parties’ briefs here. Therefore, we exercise our discretion

to consider this issue. (The dissent asserts this court “cannot decide this issue

where the district court made no findings of fact, the [G]overnment failed to raise

the issue in its brief, and the only relevant statement of the district court suggests

that Hector’s flight on foot was insufficient to apply the enhancement”. Dissent at

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32. For the above, and following, reasons, this alternative basis can be reached and

permits the enhancement.)

      As stated, the record shows Hector’s separate flight on foot justifies the

application of the enhancement. He fled from the scene of the accident, into a dark

and slippery drainage tunnel which ran under a highway. One officer pursuing

Hector testified that the tunnel was “pitch dark” and that he feared falling into one

of the reservoirs inside the tunnel, which were “basins that go straight down and

drop for 10 or 15 feet”. Additionally, he testified that he and his partner were

forced to pursue Hector with their weapons drawn, suspecting he was armed. This

pursuit included Hector’s running through the occupied warehouse. Under the

circumstances, he “recklessly created a substantial risk of death or serious bodily

injury to another person in the course of fleeing from a law enforcement officer”

by leading officers on a dangerous foot chase. See U.S.S.G. § 3C1.2.

                                          2.

      The substantive reasonableness of a sentence is reviewed for abuse of

discretion. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). Hector

contends the court abused its discretion by imposing a greater sentence on him than

on Jackson. This court can vacate the sentence “if . . . we are left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

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outside the range of reasonable sentences dictated by the facts of the case”. United

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (citation and internal quotation

marks omitted).

        Hector primarily asserts it is unreasonable that he received a greater sentence

than Jackson when Hector did not wield the firearm, and Jackson did. Although

avoiding unnecessary sentencing disparities is “particularly important”, this

§ 3553(a) sentencing factor only applies to similarly-situated defendants. See id. at

1219.

        At sentencing, the Government asked the court to sentence Hector to 163

months’ imprisonment, “which [is in] the middle of the [advisory] range”, based,

in part, on this being Hector’s second armed bank robbery. Hector requested a

low-end sentence of 155 months based on: his holding two jobs and attending

school at the time of the robbery; and his being raised from a young age to sell

drugs. The court sentenced Hector to 163 months’ imprisonment after finding “no

mitigating factors that are not taken into consideration in the calculation of the

[G]uideline range”.

        Hector’s disparity-of-sentence claim is thus without merit. He and Jackson

are not similarly situated based on differences in: their criminal histories; and their

level or cooperation. E.g., United States v. Docampo, 573 F.3d 1091, 1102 (11th

Cir. 2009).

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                                III.

For the foregoing reasons, the judgment is AFFIRMED.




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WILLIAM PRYOR, Circuit Judge, concurring in part and dissenting in part:

      I agree with the majority that we must affirm Hector’s convictions, but I

write separately because I cannot join the majority’s opinion with respect to the

imposition of the sentencing enhancement for reckless endangerment during flight,

U.S.S.G. § 3C1.2. Our prior decision in United States v. Johnson controls this

question, 694 F.3d 1192, 1196 (11th Cir. 2012), and we are bound by that decision

whether we believe it a wise one or not. There is no material difference between

Hector’s flight and the flight of the defendant in Johnson. Moreover, the majority’s

alternative rationale—that Hector’s flight on foot was sufficient to apply the

enhancement—is unsupported by any factual finding by the district court.

Accordingly, I respectfully dissent from the decision to affirm Hector’s sentence.

      Section 3C1.2 states that “[i]f the defendant recklessly created a substantial

risk of death or serious bodily injury to another person in the course of fleeing

from a law enforcement officer, increase [the offense level] by 2 levels.” Id. But

under section 3C1.2, a “defendant cannot be held responsible for another’s conduct

. . . without some form of direct or active participation. Mere foreseeability of the

conduct is insufficient.” United States v. Dougherty, 754 F.3d 1353, 1360 (11th

Cir. 2014) (citation omitted).

      When the government argued at the sentencing hearing that Hector aided

and abetted Jackson’s high-speed, reckless driving to escape the police, the

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government admitted that there was no direct evidence that Hector “aided or

abetted or otherwise promoted the driving of the car away from law enforcement.”

But the district court found that Jackson and Hector must have aided and abetted

one another in the course of the car chase because there was overwhelming

evidence that Jackson and Hector planned and coordinated the robbery.

      Based on our precedent in Johnson, the district court erred. Johnson ruled

that evidence of coordination in a crime “does not relate at all” to a defendant’s

role in the escape. 694 F.3d at 1196 (internal quotation marks and citation

omitted). In Johnson, the defendant and a cohort “robbed a CVS pharmacy.” Id. at

1194. “They were armed, wore latex gloves, and covered their faces with

bandanas.” Id. After police arrived and barricaded the exits from the parking lot,

the robbers “emerged from the store and hopped in a stolen 1995 Honda Accord.”

Id. They escaped from the parking lot by ramming one of the police cars, and then

led police on a high speed chase, “ignoring all traffic controls.” Id. The defendant

was not the driver. Id. After the car crashed, the defendant fled on foot. Id. The

district court imposed an enhancement under section 3C1.2. Id. at 1195. We

vacated the sentence and remanded for resentencing. We explained that, even

though the “robbery appear[ed] to have been somewhat well planned,” that

evidence provided “no information on [the defendant]’s contribution to that

planning, and even if [it] did, it would not necessarily reveal whether the getaway

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maneuver was premeditated (and if it was, by whom).” Id. Further, the defendant’s

“flight on foot might reveal that he intended to escape police all along, but it does

not tell us whether he played any active supporting role in the recklessness of the

car-flight.” Id. Finally, we explained that, “[a]lthough the evidence may be

sufficient to support an inference that [the defendant] knew when he entered the

getaway car that the police were on the scene blocking the exits” and “that [his

cohort] would have to ram a police car to escape (or engage in other endangering

conduct to escape),” the district court made no finding to that effect. Id. at 1198.

      The majority points to only two facts to distinguish Johnson from the instant

appeal. First, Hector supplied the vehicle to be used during the robbery. Majority

Op. at 22. In Johnson, the getaway vehicle was stolen. 694 F.3d at 1194. Second,

Hector and Jackson fled on foot in separate directions after the car crashed.

Majority Op. at 22. In Johnson, the defendant fled on foot, but his cohort was

trapped in the car and could not flee. 694 F.3d at 1194.

      Neither distinction is material. First, that Hector supplied the vehicle tells us

nothing about whether he aided a reckless escape. The use of his car tends to prove

that he helped plan the robbery, but Johnson ruled that evidence of coordination

during the crime “does not relate at all” to Hector’s “responsibility for [Jackson’s]

recklessness during a getaway,” id. at 1196 (internal quotation marks and citation

omitted). Second, the separate flights on foot add nothing to the analysis. Hector

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and Jackson might have fled in different directions because they had coordinated

their escape, or they might have fled in different directions precisely because they

had not coordinated their escape. And even if they had coordinated their flight on

foot, we still would not know whether Hector planned the escape to be reckless or

aided and abetted Jackson’s reckless driving.

      The majority suggests that the only failure of the district court in Johnson

was a failure to make a specific finding of fact, Majority Op. at 22-23, but the

majority misreads our precedent. In Johnson, we remanded for the district court to

“consider[] where the police and their cars were situated and what was more likely

than not visible to [the defendant] as he exited the store and entered the getaway

car” because “[t]he enhancement to [the defendant]’s sentence rests on resolution

of this uncertainty.” 694 F.3d at 1199. This issue was dispositive because evidence

of coordination during the robbery and the defendant’s flight on foot was

insufficient to support an enhancement under section 3C1.2.

      The majority also errs when it decides, in the alternative, that Hector’s flight

on foot was sufficient to apply the enhancement. The district court did not make

findings about Hector’s flight on foot or decide whether it was reckless. To the

contrary, the district court stated that it did not “think the fact that Mr. Hector then

fled on foot in and of itself would be sufficient to apply the reckless endangerment

enhancement.” We cannot decide this issue when the district court made no

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findings of fact, the government failed to raise the issue in its brief, and the only

relevant statement of the district court suggests that Hector’s flight on foot was

insufficient to apply the enhancement. “A misinterpretation of the Guidelines by a

district court effectively means that [the district court] has not properly consulted

the Guidelines.” United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005)

(internal quotation marks and citation omitted). We should vacate Hector’s

sentence and remand for the district court to resentence Hector under the correct

understanding of Johnson.

      I respectfully dissent in part.




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