                                                                                  FILED
                                                                      United States Court of Appeals
                                        PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                           June 24, 2019

                                                                          Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                            Clerk of Court
                         _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                              No. 18-3169

 JERMAINE TYRELL PATTON,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                              for the District of Kansas
                         (D.C. No. 5:16-CR-40113-DDC-1)
                       _________________________________

David M. Magariel, Assistant Federal Defender (Melody Brannon, Federal Public
Defender, with him on the brief), Kansas City, Kansas, for the Defendant - Appellant.

Jared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United States
Attorney, and James A. Brown, Assistant United States Attorney, with him on the brief),
Topeka, Kansas, for the Plaintiff - Appellee.
                        _________________________________

Before MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.
                  _________________________________

MATHESON, Circuit Judge.
                   _________________________________

       Jermaine Tyrell Patton was the getaway driver in a string of armed robberies that

ended in his arrest. An hour after Mr. Patton’s arrest, his associate shot a police detective

who was investigating the pair’s most recent robbery. Mr. Patton pled guilty to aiding
and abetting (1) Hobbs Act robbery and (2) carrying of a firearm during the robbery. To

account for the shooting, the district court increased his United States Sentencing

Guidelines (“U.S.S.G.” or “Guidelines”) advisory sentencing range by applying (1)

U.S.S.G. § 2B3.1(b)(3)(C) (“the Robbery Guideline”) for infliction of “[p]ermanent or

[l]ife-[t]hreatening [b]odily [i]njury” and (2) U.S.S.G. § 3A1.2(c)(1) (“the Official

Victim Guideline”) for assault on a law enforcement officer.

       Mr. Patton challenges the district court’s application of these Guidelines, arguing

(1) the Robbery Guideline does not apply because the shooting was not his relevant

conduct under U.S.S.G. § 1B1.3(a)(1)(B) (“the Relevant Conduct Guideline”) and (2) the

Official Victim Guideline does not apply because (a) the shooting was not his relevant

conduct, (b) he was not “otherwise accountable” for the shooting, and (c) it did not occur

during “immediate flight” from the robbery. Exercising jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a)(2), we affirm.

                                   I. BACKGROUND

       This section presents the factual background, a description of the relevant

Guidelines, and the procedural history of this case.

                                 A. Factual Background

       In 2016, Mr. Patton and Christopher Harris robbed the Oakmart gas station and

convenience store in Topeka, Kansas, their third convenience store robbery in a week.

Mr. Harris entered the store with a firearm and demanded money while Mr. Patton

remained in the getaway car.




                                             2
       A police officer spotted the pair soon after they fled in the car. Mr. Patton stopped

the car, and the two men fled on foot into a wooded area. Police officers apprehended

Mr. Patton “almost immediately,” Record on Appeal (“ROA”), Vol. III at 64, but Mr.

Harris remained at large for just over an hour. Police officers “set up a perimeter in the

area trying to contain” Mr. Harris. Supp. ROA at 134.

       At the end of the hour, Detective Brian Hill, who was investigating the robbery,

encountered Mr. Harris walking two or three miles from where Mr. Patton had been

arrested. Mr. Harris shot Detective Hill, and Detective Hill returned fire. The exchange

of fire wounded both men badly and forced the detective’s retirement from the Topeka

Police Department.

                           B. Relevant Sentencing Guidelines

       The Robbery Guideline and the Official Victim Guideline used to calculate Mr.

Patton’s sentence are “determined on the basis of” his “relevant conduct,” as defined in

the Relevant Conduct Guideline. U.S.S.G. § 1B1.3(a).1 “The government bears the

burden of proving sentencing enhancements by a preponderance of the evidence.”

United States v. Orr, 567 F.3d 610, 614 (10th Cir. 2009).

   Relevant Conduct Guideline

       “Under the Sentencing Guidelines, the sentencing range for a particular offense is

determined on the basis of all ‘relevant conduct’ in which the defendant was engaged and



       1
        Mr. Patton was sentenced under the 2016 Guidelines. All citations are to that
version unless otherwise noted.


                                             3
not just with regard to the conduct underlying the offense of conviction.” Witte v. United

States, 515 U.S. 389, 393 (1995). “Section 1B1.3 of the [Guidelines] defines relevant

conduct and explains the rules for determining what acts or omissions are considered

relevant conduct to a given offense type.” Office of Gen. Counsel, U.S. Sentencing

Comm’n, Primer: Relevant Conduct 2 (2019). Section 1B1.3(a)(1) “contains the basic

rules of relevant conduct applicable to all offenses.” Id.

       Section 1B1.3(a)(1) defines a defendant’s relevant conduct in two ways, either or

both of which may apply in a given case. See U.S.S.G. § 1B1.3 cmt. 2. First, it covers

“all acts and omissions committed, aided, abetted, counseled, commanded, induced,

procured, or willfully caused by the defendant.” U.S.S.G. 1B1.3(a)(1)(A). Second, “in

the case of a jointly undertaken criminal activity,” relevant conduct includes “all acts and

omissions of others that . . . occurred during the commission of the offense of conviction

. . . or in the course of attempting to avoid detection or responsibility for that offense,” if

the acts were also:

              (i) within the scope of the jointly undertaken criminal
              activity,

              (ii) in furtherance of that criminal activity, and

              (iii) reasonably foreseeable in connection with that criminal
              activity . . . .

U.S.S.G. § 1B1.3(a)(1)(B).2 The parties agree that only the second definition—

§ 1B1.3(a)(1)(B)—is at issue here. See ROA, Vol. I at 89; Aplt. Br. at 11.


       2
        There are three additional definitions under § 1B1.3(a). Section 1B1.3(a)(2)
“adopts broader rules for those offense types that typically involve a pattern of

                                               4
   Robbery Guideline

       Chapter Two of the Guidelines concerns offense conduct. Each offense has a

corresponding offense level. Robbery has a base offense level of 20, U.S.S.G.

§ 2B3.1(a), which is increased by six “[i]f any victim sustained bodily injury” that was

“[p]ermanent or [l]ife-[t]hreatening.” U.S.S.G. § 2B3.1(b)(3)(C).

   Official Victim Guideline

       Chapter Three of the Guidelines provides for adjustments of the offense level.

The Official Victim Guideline provides for a victim-related adjustment. It calls for a six-

level increase

                 [i]f, in a manner creating a substantial risk of serious bodily
                 injury, the defendant or a person for whose conduct the
                 defendant is otherwise accountable . . . knowing or having
                 reasonable cause to believe that a person was a law
                 enforcement officer, assaulted such officer during the course
                 of the offense or immediate flight therefrom . . . .

U.S.S.G. § 3A1.2(c)(1).




misconduct that cannot readily be broken into discrete, identifiable units that are
meaningful for purposes of sentencing.” Office of Gen. Counsel, U.S. Sentencing
Comm’n, Primer: Relevant Conduct 2 (2019). Section 1B1.3(a)(3) encompasses “harm
that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) . . .
and all harm that was the object of such acts and omissions.” U.S.S.G. § 1B1.3(a)(3).
Finally, § 1B1.3(a)(4) “requires consideration of any information specified in the
applicable guideline.” U.S.S.G. § 1B1.3 cmt. background.


                                                5
                                 C. Procedural Background

   Information and Guilty Plea

       The Government filed an information charging Mr. Patton in the Oakmart robbery.

Count one alleged aiding and abetting Hobbs Act robbery, in violation of 18 U.S.C.

§ 1951(a). Count two alleged aiding and abetting using and carrying a firearm during a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). Mr. Patton pled guilty to

both counts.3

   Presentence Investigation Report

       The Probation Office prepared a Presentence Investigation Report (“PSR”), which

calculated a base offense level of 20. The PSR also recommended two six-level increases

under § 2B3.1(b)(3)(C) and § 3A1.2(c)(1) to account for Detective Hill’s shooting

injuries. After a three-level decrease under § 3E1.1 for acceptance of responsibility, the

PSR calculated a total offense level of 29. It assigned Mr. Patton a criminal history

category of IV. The resulting Guidelines range was 121 to 151 months for the Hobbs Act

robbery and an additional 60 consecutive months for the § 924(c) offense.4


       3
         Mr. Patton’s plea agreement waived many of his appeal rights but reserved the
right to “challenge and appeal any enhancement applied under . . . § 2B3.1(b)(3)(C).”
ROA, Vol. I at 77. At the sentencing hearing, the Government stated that application of
the Robbery Guideline and the Official Victim Guideline were “interconnected” and that
it would not “object if [Mr. Patton] wishes to appeal” the application of the Guideline
section omitted from the exception to the plea waiver. ROA, Vol. III at 147.
       4
         Sentences imposed under § 924(c) shall not “run concurrently with any other
term of imprisonment imposed on the person, including any term of imprisonment
imposed for the crime of violence . . . during which the firearm was used, carried, or
possessed.” 18 U.S.C. § 924(c)(1)(D)(ii).


                                             6
       Mr. Patton objected to the PSR. Two objections are relevant here: (1) that “the

shooting should not be considered relevant conduct under . . . § 1B1.3(a)(1)(B),” in part

because he was in custody when Mr. Harris shot Detective Hill, see ROA, Vol. I at 103,

107; and (2) that the Official Victim Guideline should not apply because (a) Mr. Patton

was not “otherwise accountable” for Mr. Harris’s action and (b) the shooting did not

occur during “immediate flight” from the robbery, id. at 109-10.5 He urged the court to

calculate a Guidelines range of 37 to 46 months for the Hobbs Act robbery and a

consecutive 60 months for the § 924(c) offense.

   Sentencing

       At sentencing, the district court heard testimony to the facts underlying the

offense, the shooting, and the arrests from Topeka police officer Patrick Salmon. The

court then overruled the two objections described above.

       First, the district court concluded that § 2B3.1(b)(3)(C)’s six-level increase applied

because all of the factors in the relevant conduct definition for jointly undertaken

criminal activity were met. The shooting was within the scope of jointly undertaken

criminal activity, the court said, because Mr. Patton “agreed to jointly undertake a forced

armed robbery where a firearm was used” and “the scope of that jointly undertaken

criminal activity expanded” when both men fled. ROA, Vol. III at 108. The shooting



       5
       Mr. Patton failed to argue in district court, as he does on appeal, that the Official
Victim Guideline did not apply because the shooting was not his relevant conduct.
Because we affirm that the shooting was relevant conduct for the application of the
Robbery Guideline, we do not consider whether Mr. Patton forfeited this argument.


                                             7
was in furtherance of that criminal activity because “jointly undertaken flight and

eluding” are related to the underlying crime. Id. at 109. And when “a defendant . . .

agrees to participate in an armed robbery with a codefendant and then subsequently

decides and agrees to take flight with his codefendant,” it is foreseeable that “the

codefendant might [use a firearm] . . . against a law enforcement officer who responded

to the report of the crime.” Id. at 110.

       Second, the district court concluded that § 3A1.2(c)(1) applied because there was

no “break in causation between the flight from the robbery and the shooting.” Id. at 114.

The court rejected Mr. Patton’s argument that the shooting was not during “immediate

flight” from the offense and did not expressly address the argument that he was not

“otherwise accountable” for the shooting. Id. at 113-14.

                                     II. DISCUSSION

       We discuss our standard of review and then consider Mr. Patton’s challenges to

his sentence. In each instance, the district court did not err.

                                   A. Standard of Review

       We review a sentence’s procedural and substantive reasonableness for abuse of

discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). This appeal concerns

procedural reasonableness because it relates to whether the district court “correctly

calculated the applicable Guidelines range.” Id. at 51, 53.

       “[W]e review factual findings for clear error and legal determinations de novo.”

Orr, 567 F.3d at 614 (quotations omitted). “An error of law is per se an abuse of

discretion.” United States v. Sanchez-Leon, 764 F.3d 1248, 1262 (10th Cir. 2014)


                                               8
(quotations omitted). “We review the district court’s . . . ultimate determination of

relevant conduct de novo.” United States v. Tran, 285 F.3d 934, 938 (10th Cir. 2002);

see also United States v. Damato, 672 F.3d 832, 838 (10th Cir. 2012).

                                B. Sentencing Challenges

       Mr. Patton challenges the district court’s decision to increase his sentencing

offense level (1) by six under the Robbery Guideline and (2) by six under the Official

Victim Guideline.

   Robbery Guideline

       The district court did not err in adding six levels under § 2B3.1(b)(3)(C) to

determine the robbery offense level. Mr. Harris’s shooting of Detective Hill was Mr.

Patton’s relevant conduct under § 1B1.3(a)(1)(B) because it was within the scope of Mr.

Patton’s agreement to commit robbery, in furtherance of it, and foreseeable. Further, Mr.

Patton’s argument that his arrest limited his relevant conduct is unpersuasive.

       a. Additional legal background

       We provide additional legal background on the definition of relevant conduct and

then explain how it applies in the context of robbery.

              i. Relevant conduct

       As noted above, this appeal concerns the relevant conduct definition in

§ 1B1.3(a)(1)(B). Under that definition, scope of the agreement, furtherance, and

reasonable foreseeability are “independent and necessary elements of relevant conduct.”

United States v. Willis, 476 F.3d 1121, 1129 (10th Cir. 2007) (quotations omitted); see

also U.S.S.G. § 1B1.3 cmt. 3(A). “These elements closely correspond to the classic


                                             9
statement of the common law requirements for substantive conspiracy liability.” United

States v. Spotted Elk, 548 F.3d 641, 673 (8th Cir. 2008) (citing Pinkerton v. United

States, 328 U.S. 640, 647-48 (1946)). Nonetheless, the definition applies whether or not

a conspiracy is charged. U.S.S.G. § 1B1.3 cmt. 3(A). Mr. Patton challenges the district

court’s determinations about scope and furtherance but not about foreseeability. See

Aplt. Br. at 10.

                     1) Scope

       To determine whether an act or omission is the defendant’s relevant conduct, “the

court must first determine the scope of the criminal activity the particular defendant

agreed to jointly undertake.” United States v. McClatchey, 316 F.3d 1122, 1128 (10th

Cir. 2003) (emphasis omitted). This determination requires “particularized findings tying

the defendant to the relevant conduct.” Willis, 476 F.3d at 1130 (quotations omitted).

“Acts of others that were not within the scope of the defendant’s agreement, even if those

acts were known or reasonably foreseeable to the defendant, are not relevant conduct

under subsection (a)(1)(B).” U.S.S.G. § 1B1.3 cmt. 3(B).

                     2) Furtherance

       “The court must determine if the conduct (acts and omissions) of others was in

furtherance of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3 cmt. 3(c).

              ii. Relevant conduct in the robbery context

       The commentary to the Relevant Conduct Guideline illustrates how

§ 1B1.3(a)(1)(B) applies to a robbery getaway driver:




                                            10
                     Defendant C is the getaway driver in an armed bank
              robbery in which . . . a teller is assaulted and injured. . . .
              Defendant C is accountable for the injury to the teller under
              subsection (a)(1)(B) because the assault on the teller was
              within the scope and 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).

U.S.S.G. § 1B1.3 cmt. 4(B)(i).

       Applying this commentary, we held that a bank robbery defendant’s relevant

conduct included an associate’s threat to kill someone. See United States v. Lambert, 995

F.2d 1006, 1009 (10th Cir. 1993). In United States v. Metzger, 233 F.3d 1226 (10th Cir.

2000), we held a bank robbery defendant’s relevant conduct included an off-duty police

officer’s shooting of a bystander in the bank parking lot when the officer mistook the

bystander for the escaping defendant. Id. at 1227-29 (relying on § 1B1.3(a)(1)(A) and

(a)(3)).6 We also have said relevant conduct extends to a getaway driver who has already

fled the scene, leaving his armed associates behind. Id. at 1228 (“A robber may . . . be

held accountable . . . for an injury to a victim by a responding police officer even after the

robber has driven blocks away toward his home.”).7 The Ninth Circuit has held that a


       6
        See also United States v. Molina, 106 F.3d 1118,1124-25 (2d Cir. 1997) (holding
under § 1B1.3(a)(1)(3) that a robbery defendant’s relevant conduct could include an
armed guard’s wounding of a bystander). The same is true when the establishment
robbed is not a bank. See United States v. Parsons, 664 F. App’x 187, 191-92 (3d Cir.
2016) (unpublished) (robbery of a drugstore); United States v. Maddox, 803 F.3d 1215,
1221-22 (11th Cir. 2015) (same).
       The unpublished cases cited in this opinion are included for their persuasive value.
See 10th Cir. R. 32.1; Fed. R. App. P. 32.1.
       7
         See also Parsons, 664 F. App’x at 191 (“Although [the defendant] left the scene
of the crime and may not have known that his confederates had shot at law enforcement

                                             11
robbery defendant’s relevant conduct includes an associate’s shooting at responding

police officers even when the defendant was not present. See United States v. Franklin,

321 F.3d 1231, 1235-36 (9th Cir. 2003).

       A defendant’s relevant conduct may also include an associate’s actions during

flight. “Flight and pursuit are links in the chain of events set in motion by a . . . robbery.”

Metzger, 233 F.3d at 1228 (quotations omitted). This is because “a robbery cannot be

completed without some form of flight or attempted flight, so robbery is more naturally

understood to include the act of fleeing and the immediate consequences of such flight.”

Id. (quotations and brackets omitted). Indeed, a majority of states “have . . . adopted the

continuing offense theory of robbery,” defining robbery to include instances of theft

where the defendant uses violence during flight from the offense. United States v.

Garcia-Caraveo, 586 F.3d 1230, 1235 (10th Cir. 2009).

       b. Analysis

       Mr. Patton does not dispute the district court’s findings that he “agreed to jointly

undertake a forced armed robbery where a firearm was used,” ROA, Vol. III at 108, and

that Mr. Harris’s shooting of Detective Hill was foreseeable to him. See Aplt. Br. at 13.

But he contests the court’s finding that the shooting was within the scope and in




officers, he is nevertheless ‘otherwise accountable’ for their conduct.”) (applying
§ 1B1.3(a)(1)(B) and § 3A1.2(c)(1)); United States v. Gamez, 301 F.3d 1138, 1141,
1146-48 (9th Cir. 2002) (holding a defendant’s relevant conduct included a co-
conspirator’s murder of a border patrol agent shortly after the conspirators were
confronted and the defendant fled); Molina, 106 F.3d at 1120.


                                              12
furtherance of the jointly undertaken criminal activity, emphasizing that he was arrested

before the shooting. We agree with the district court.

              i. Scope

       Because robberies carry with them “the inherent prospect that someone could be

injured,” Metzger, 233 F.3d at 1228 (referring to bank robbery), violence against a victim

is within the scope of an armed robbery, in furtherance of it, and foreseeable, see

U.S.S.G. § 1B1.3 cmt. 4(B)(i); see also Metzger, 233 F.3d at 1227-29; Lambert, 995 F.2d

at 1009. We agree with the Ninth Circuit that this includes violence against a police

officer. See Franklin, 321 F.3d at 1235-36. Accordingly, had Mr. Harris shot Detective

Hill at the Oakmart gas station and convenience store during the robbery itself, the

shooting would qualify as Mr. Patton’s relevant conduct.

       The result is no different when Mr. Harris shot Detective Hill while attempting to

elude police when Mr. Patton was elsewhere. Relevant conduct includes acts and

omissions “in the course of attempting to avoid detection or responsibility” for the

offense. U.S.S.G. § 1B1.3(a)(1). And robbery “include[s] the act of fleeing and the

immediate consequences of such flight.” Metzger, 233 F.3d at 1228 (quotations omitted).

A defendant’s relevant conduct may include acts or omissions an associate takes even

when the defendant is not present. See United States v. Parsons, 664 F. App’x 187,




                                            13
191-92 (3d Cir. 2016); Franklin, 321 F.3d at 1235-36; Metzger, 233 F.3d at 1228; United

States v. Molina, 106 F.3d 1118, 1120 (2d Cir. 1997).8

              ii. Furtherance

       Mr. Patton argues that Mr. Harris’s conduct could not be in furtherance of the

jointly undertaken robbery after Mr. Patton’s arrest because “once Mr. Patton was taken

into . . . custody . . . he could do nothing to further any jointly undertaken criminal

activity.” Aplt. Br. at 18. But the shooting did further the jointly undertaken activity

because Mr. Harris was still at large and attempting to elude police—one of the goals of a

joint robbery. His shooting of Detective Hill sought to advance this goal by permitting

his escape.

              iii. Mr. Patton’s argument about arrest

       Mr. Patton argues his arrest foreclosed any sentencing accountability for the

shooting. We disagree. As explained above, Mr. Patton’s absence from the scene of the

shooting does not limit his relevant conduct. See Parsons, 664 F. App’x at 191-92;

Franklin, 321 F.3d at 1235-36; Metzger, 233 F.3d at 1228; Molina, 106 F.3d at 1120.

Nor does Mr. Patton argue that he withdrew from the jointly undertaken robbery. See

United States v. Ruiz-Castro, 92 F.3d 1519, 1538 (10th Cir. 1996), overruled on other

grounds by United States v. Flowers, 464 F.3d 1127 (10th Cir. 2006) (“Absent any

affirmative withdrawal, a defendant remains part of the ongoing criminal enterprise.”


       8
       Because we conclude that the shooting was within the scope of Mr. Patton’s
agreement to commit the robbery, we do not address the district court’s finding that the
agreement expanded when the two men fled.


                                              14
(quotations and brackets omitted)); United States v. Torres, 53 F.3d 1129, 1144 n.15

(10th Cir. 1995) (similar). Doing so would require him to prove that he took “affirmative

action, either by reporting to the authorities or by communicating his intentions to the

coconspirators.” United States v. Powell, 982 F.2d 1422, 1435 (10th Cir. 1992). Mr.

Patton bears this burden. Id.

       Instead, Mr. Patton relies on United States v. Melton, 131 F.3d 1400 (10th Cir.

1997), to argue that he cannot be held responsible for the shooting because it happened

after his arrest. Aplt. Br. at 14-15. His reliance on Melton is misplaced. In that case,

federal agents arrested co-conspirators Mr. Melton and Mr. Delaney as they were making

initial preparations with others to print counterfeit money. Melton, 131 F.3d at 1402.

After the arrest, the government convinced Mr. Delaney to help set up a reverse sting

operation, which eventually printed $30 million in counterfeit bills. Id.

       Although Mr. Melton had nothing to do with the sting operation, the district court

enhanced his sentence, finding the $30 million in counterfeit printing was his relevant

conduct under § 1B1.3(a)(1)(B) because it was a foreseeable consequence of the

conspiracy. Id. at 1402-03. On appeal, this court identified “two possible grounds” for

the district court’s sentencing enhancement. Id. at 1404. We disagreed as to both and

vacated the sentence.

       First, we disagreed that the scope of Mr. Melton’s participation in the conspiracy

extended beyond his arrest. We reasoned that (1) “the original agreement was abandoned

and was replaced by a reverse sting operation” that “was entirely set up and funded by the

government with the cooperation of Mr. Delaney”; (2) the record lacked any indication


                                            15
“that the post-arrest metamorphosis of the original counterfeiting plan was within the

scope of the criminal activity Mr. Melton agreed to undertake”; and (3) “the government

clearly conceded that Mr. Melton’s participation in the conspiracy terminated with his

arrest and that [he] had absolutely no involvement with the reverse sting operation.” Id.

at 1405.9

       Mr. Patton’s case is different. The robbery agreement was not abandoned, the

government did not set up anything resembling a reverse sting operation, there was no

“metamorphosis” of the robbery plan, and the Government has not conceded that Mr.

Patton’s involvement in the robbery ended with his arrest. Nor has Mr. Patton cited

evidence sufficient to prove that his involvement ended with his arrest.

       Second, we disagreed that “it was reasonably foreseeable to Mr. Melton that $30

million of currency would be produced in the original counterfeiting scheme.” Id. at

1404. We first pointed out that foreseeability does not “inform” the scope or furtherance

elements of relevant conduct. Id. at 1405. More to the point, we also said the district

court “arbitrarily assign[ed] $30 million . . . of counterfeit money foreseeable to Mr.

Melton” and therefore made a “clearly erroneous” determination. Id. at 1406.




       9
         The Melton panel said that “a conspirator’s arrest or incarceration by itself is
insufficient to constitute his withdrawal from the conspiracy,” but “an arrest may under
certain circumstances amount to a withdrawal.” 131 F.3d at 1405 (citations omitted). The
government’s concession that Mr. Melton terminated participation was such a
circumstance. The court appeared to tie withdrawal from the conspiracy to its analysis of
the scope of joint criminal activity attributable to Mr. Melton.


                                             16
       Mr. Patton’s case, again, is different. Indeed, he does not even contest that Mr.

Harris’s shooting of Detective Hill was foreseeable. And as shown above, the district

court did not err in finding that the relevant conduct elements of scope and furtherance

were met. In short, Melton is inapposite.

                                      *     *        *   *

       Mr. Harris’s shooting of Detective Hill was within the scope of the jointly

undertaken robbery, in furtherance of it, and foreseeable. Notwithstanding his arrest, the

shooting qualifies as Mr. Patton’s relevant conduct. The district court did not err in

applying the Robbery Guideline’s six-level increase to Mr. Patton’s offense level.

   Official Victim Guideline

       Mr. Patton argues the district court erred in applying the Official Victim

Guideline’s six-level increase. He contends, (1) as with the previous issue, that the

shooting was not his relevant conduct; (2) that he was not “otherwise accountable” for the

shooting, as he says § 3A1.2(c)(1) requires; and (3) that the shooting occurred during the

“immediate flight” from the robbery. We disagree with his arguments and affirm.

       a. Additional legal background

       We provide additional legal background on the applicability of the Relevant

Conduct Guideline to the words “otherwise accountable” in the Official Victim Guideline

and on the meaning of “immediate flight” in the Official Victim Guideline.




                                                17
              i. Application of the Relevant Conduct Guideline to “otherwise
                 accountable” in the Official Victim Guideline

       The Official Victim Guideline applies to assaults on a law enforcement officer by

the defendant “or a person for whose conduct the defendant is otherwise accountable.”

U.S.S.G. § 3A1.2(c). Although the comments to the Guideline do not define “otherwise

accountable,” the Relevant Conduct Guideline provides that “[u]nless otherwise specified

. . . adjustments in Chapter Three [of the Guidelines] shall be determined on the basis of”

the definition of relevant conduct in § 1B1.3. U.S.S.G. § 1B1.3(a).

       In United States v. Johnson, 977 F.2d 1360 (10th Cir. 1992), we held that a

defendant was “otherwise accountable” under the Official Victim Guideline for “conduct

of others in furtherance of the execution of the jointly-undertaken criminal activity that

was reasonably foreseeable by the defendant.” Id. at 1383 (quotations omitted). We

observed that this was the definition of “otherwise accountable” then provided by the

commentary to § 1B1.3. Id. Other circuits also have equated § 1B1.3’s definition of

relevant conduct with “otherwise accountable” in the Official Victim Guideline. See

Parsons, 664 F. App’x at 190-91; United States v. Null, 234 F.3d 1270, at *6 (6th Cir.

2000) (unpublished); United States v. Gonzales, 996 F.2d 88, 93 (5th Cir. 1993).10


       10
          Johnson and Gonzales concerned an earlier version of the Relevant Conduct
Guideline. We think Johnson is still governing Tenth Circuit precedent. The history of
the Official Victim and Relevant Conduct Guidelines shows that the former’s use of
“otherwise accountable” refers to jointly undertaken criminal activity. In 1989, the
precursor to § 3A1.2(c)(1) was added to the Guidelines, providing for an increase in
offense level for assaults on law enforcement officers by “the defendant or a person for
whose conduct the defendant is otherwise accountable.” U.S.S.G. § 3A1.2(b) (1989)
(emphasis added). The phrase “otherwise accountable” also appeared in § 1B1.3’s
definition of relevant conduct in that year’s Guidelines. See U.S.S.G. § 1B1.3(a)(1)

                                             18
       By contrast, in United States v. Iron Cloud, 75 F.3d 386 (8th Cir. 1996), the

Eighth Circuit interpreted “otherwise accountable” in the Official Victim Guideline as

requiring “that the defendant expressly or impliedly ordered, encouraged, or in some way

assisted in the assailant’s conduct.” Id. at 390. Iron Cloud did not mention the Relevant

Conduct Guideline. See id.

              ii. Meaning of “immediate flight”

       The Official Victim Guideline provides for a six-level increase for assaults on law

enforcement officers “during the course of the offense or immediate flight therefrom.”

U.S.S.G. § 3A1.2(c)(1). Neither the Guideline nor the commentary define “immediate

flight.” We have found only two cases that meaningfully discuss the words “immediate

flight” in the Official Victim Guideline.11



(1989). The commentary to § 1B1.3 stated, “[T]he conduct for which the defendant
‘would be otherwise accountable’ also includes conduct of others in furtherance of the
execution of . . . jointly-undertaken criminal activity that was reasonably foreseeable by
the defendant.” U.S.S.G. § 1B1.3 cmt. 1 (1989) (emphasis added).
       In 1992, the Relevant Conduct Guideline was amended to omit the phrase
“otherwise accountable.” See U.S.S.G. § 1B1.3(a)(1) (1992). The amendment moved
the description of jointly undertaken criminal activity from the commentary to the
Relevant Conduct Guideline’s text. See U.S.S.G. § 1B1.3(a)(1)(B) (1992). But the
Official Victim Guideline continued to use the phrase “otherwise accountable.” See
U.S.S.G. § 3A1.2(b) (1992). The amendment to the Relevant Conduct Guideline to omit
“otherwise accountable” did not change the meaning of the Official Victim Guideline—
the words “otherwise accountable” did not take on a different meaning in the Official
Victim Guideline because of the change to the Relevant Conduct Guideline. For this
reason, the amendment did not undercut Johnson.
       11
          A few other cases discuss the term “immediate flight” in a context not relevant
to this case. For example, United States v. Levario-Quiroz, 161 F.3d 903 (5th Cir. 1998)
holds that the Official Victim Guideline does not apply to an assault that occurs “prior
to” the offense “or immediate flight therefrom.” Id. at 908 (emphasis added).


                                              19
       The first, United States v. Collins, 754 F.3d 626 (8th Cir. 2014), noted that the

term immediate flight appears to be narrower than § 1B1.3(a)(1)’s reference to “the

course of attempting to avoid detection or responsibility for [the] offense.” Id. at 631. In

other words, “reading § 3A1.2(c)(1) to include all relevant conduct would make the

phrase ‘immediate flight therefrom’ surplusage.” Id.

       The other case is United States v. Dougherty, 754 F.3d 1353 (11th Cir. 2014),

which relied on dictionaries to understand “immediate flight.” See id. at 1359. The

Eleventh Circuit quoted several definitions of “immediate”: “‘occurring without delay;

instant,’” id. (quoting Black’s Law Dictionary 751 (7th ed. 1999)); “‘occurring, acting[,]

or accomplished without loss of time; made or done at once; instant,’” id. (quoting

Webster’s Third New International Dictionary 1129 (unabridged ed. 1986)); and

“‘occurring, accomplished[,] or taking effect without delay or lapse of time; done at once;

instant,’” id. (quoting 7 Oxford English Dictionary 681 (2d ed. 1989)). The court then

held that an assault eight days after the defendant committed bank robbery in a different

state did “not meet the ordinary meaning of the term ‘immediate.’” Id.

       Although dictionaries may assist in understanding “immediate flight,” this phrase

also appears in legal materials concerning felony murder and robbery, where we may find

further assistance. The term “immediate flight” is relevant to the felony-murder rule:

              [E]ven if it is clear beyond question that the crime was
              completed before the killing, the felony-murder rule might
              still apply. The most common case is that in which the killing
              occurs during the defendant’s flight. A great many of the
              modern statutes contain language—typically the phrase “or in
              immediate flight therefrom”—making this absolutely clear.
              But even statutes without such language have rather


                                             20
              consistently been construed to extend to immediate flight
              situations.

2 Wayne R. LaFave, Substantive Criminal Law § 14.5(f)(1) (3d ed. 2018) (citations

omitted) (emphasis added). In this context, courts “assessing what flight is sufficiently

immediate[] . . . require that there have been ‘no break in the chain of events,’ as to which

a most important consideration is whether the fleeing felon has reached a ‘a place of

temporary safety.’” Id. (emphasis added); see also People v. Wilkins, 295 P.3d 903, 909

(Cal. 2013), modified, (May 1, 2013); People v. Gladman, 359 N.E.2d 420, 424 (N.Y.

1976).12

       Reaching a place of temporary safety is also relevant to robbery law. “Federal and

state courts have long held that the offense conduct for robbery does not end when the

initial taking is complete. Rather, the offense conduct continues until the perpetrator has

won his way to a place of temporary safety because escape is inherent to the crime of

robbery.” United States v. Figueroa-Cartagena, 612 F.3d 69, 79 (1st Cir. 2010)

(emphasis added) (quotations omitted).

       b. Analysis

       Mr. Patton argues that (i) the shooting was not his relevant conduct for purposes of

the Official Victim Guideline, (ii) the Guideline requires an additional determination that


       12
         Courts have not used felony-murder law’s definition of “immediate flight” in
construing § 3A1.2(c)(1), but they have consulted legal sources to discern the meaning of
“assault” in § 3A1.2(c)(1). See United States v. Olson, 646 F.3d 569, 572 (8th Cir. 2011)
(“We join those circuits that have concluded that the term ‘assault’ in the Official Victim
enhancement is a reference to common-law criminal assault.”); see also United States v.
Jones, 740 F.3d 127, 138-39 (3d Cir. 2014).


                                             21
goes beyond relevant conduct to show he was “otherwise accountable” for the shooting,

and (iii) the shooting occurred after “immediate flight” from the robbery had ended. We

disagree.

              i. Relevant conduct

       As explained above, Mr. Harris’s shooting of Detective Hill was relevant conduct

for Mr. Patton’s robbery offense because the shooting was within the scope of the agreed

robbery, in furtherance of it, and foreseeable. It was his relevant conduct notwithstanding

his arrest.

              ii. Otherwise accountable

       “[O]therwise accountable” in the Official Victim Guideline is the same as “jointly

undertaken criminal activity” in the Relevant Conduct Guideline. No separate

determination was required that Mr. Patton was “otherwise accountable” for the shooting.

The Relevant Conduct Guideline applies to the Official Victim Guideline—and other

guidelines in Chapter Three—unless “otherwise specified.” U.S.S.G. § 1B1.3(a). The

phrase “a person for whose conduct the defendant is otherwise accountable” in the

Official Victim Guideline does not specify a different definition of relevant conduct. See

U.S.S.G. § 3A1.2(c). Rather, as we held in Johnson, the phrase “otherwise accountable”

refers to the definition of relevant conduct codified in § 1B1.3(a)(1)(B). See Johnson,

977 F.2d at 1383.

       Mr. Patton urges that we follow the Eighth Circuit’s holding in Iron Cloud that

“otherwise accountable” has a meaning specific to the Official Victim Guideline. See

Iron Cloud, 75 F.3d at 390. We decline to do so. Applying § 1B1.3(a)(1)(B)’s definition


                                            22
of relevant conduct to the Official Victim Guideline is more in keeping with our

precedent, the text of the Guidelines, and the history of the Guidelines amendments.

              iii. “Immediate flight”

       The district court applied § 3A1.2(c)(1) to the facts to determine that Mr. Harris

was in “immediate flight” when he shot Detective Hill. Mr. Patton’s challenge to this

determination calls for further discussion of our standard of review.

       “We review the district court’s interpretation of the Guidelines de novo and any

factual findings for clear error, giving due deference to the district court’s application of

the [G]uidelines to the facts.” United States v. Ford, 613 F.3d 1263, 1268 (10th Cir.

2010) (quotations omitted) (reviewing application of the Official Victim Guideline).13

“[D]etermination of whether facts . . . satisfy a prescribed standard . . . is a mixed

question of fact and law.” Campbell v. Bartlett, 975 F.2d 1569, 1574 (10th Cir. 1992).

“We review mixed questions under the clearly erroneous or de novo standard, depending

on whether the mixed question involves primarily a factual inquiry or the consideration

of legal principles.” United States v. Kinslow, 105 F.3d 555, 557 (10th Cir. 1997)




       13
          Before the Supreme Court decided United States v. Booker, 543 U.S. 220
(2005), 18 U.S.C. § 3742(e) instructed courts of appeals to “give due deference to the
district court’s application of the guidelines to the facts.” Because the holding in Booker
conflicted with another provision in § 3742(e) providing for “de novo review of
departures from the applicable Guidelines range,” 543 U.S. at 259, the Court “excised”
§ 3742(e) entirely, id. at 245, and held courts of appeals should review sentences for
“reasonableness,” id. at 259-61. Nonetheless, “[e]ven after Booker, . . . [we give] due
deference to the district court’s application of the [G]uidelines to the facts.” United
States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006).


                                              23
(quotations omitted); see also Gallardo v. United States, 752 F.3d 865, 870 (10th Cir.

2014).

         Application of certain Guidelines is so fact-focused that we review for clear error.

For example, application of U.S.S.G § 3B1.1(c)’s enhancement for the defendant’s role

as an organizer, leader, manager, or supervisor in criminal activity presents a “mixed

question of law and fact that is subject to the clearly erroneous standard of review.”

United States v. Marquez, 833 F.3d 1217, 1223 (10th Cir. 2016).14 We have explained

that application of § 3B1.1 is “firmly rooted in sophisticated factual determinations based

on the sentencing court’s assessment of the broad context of the crime.” United States v.

Pena-Hermosillo, 552 F.3d 1108, 1112 (10th Cir. 2008) (quotations omitted) (referring to

§ 3B1.1(b)).15

         So too here. Even with the guidance of dictionaries and uses of the phrase

“immediate flight” in other legal contexts, we recognize that “immediate” is a relative

term and that applying “immediate flight” in a particular case is a fact-intensive exercise


         14
          See also United States v. Snow, 663 F.3d 1156, 1162-63 (10th Cir. 2011)
(reviewing application of § 3B1.1(c) for clear error); United States v. Fleming, 667 F.3d
1098, 1108 (10th Cir. 2011) (applying clear error review to the district court’s
determination that the defendant’s out-of-court statements constituted an attempt to
obstruct justice for the purposes of § 3C1.1).
         15
           Courts have used a less demanding threshold to trigger clear error review. See
United States v. Clinton, 825 F.3d 809, 811 (7th Cir. 2016) (“Where the district court
bases the application of a sentencing guideline on factual findings, we review for clear
error.” (quotations and brackets omitted)); United States v. Dodd, 770 F.3d 306, 309 (4th
Cir. 2014) (“If the application turns on a question of fact, the clear error standard applies;
if it turns on a legal interpretation, de novo review is appropriate.”); see also Kinslow,
105 F.3d at 557.


                                              24
that requires attention to the broad context of the crime. Accordingly, the determination

of “immediate flight” for the purposes of § 3A1.2(c)(1) “is a mixed question of law and

fact that is subject to the clearly erroneous standard of review.” See Marquez, 833 F.3d

at 1223; see also United States v. Sanders, 929 F.2d 1466, 1474-75 (10th Cir. 1991)

(“The application of the sentencing guidelines presents a mixed question of fact and

law.”).

          Mr. Patton urges that Mr. Harris’s shooting falls outside the dictionary definition

of “immediate” and therefore the Official Victim Guideline does not apply. Although we

agree with the Eighth Circuit that “reading § 3A1.2(c)(1) to include all relevant conduct

would make the phrase ‘immediate flight therefrom’ surplusage,” Collins, 754 F.3d at

631, we disagree with Mr. Patton. Whether we use felony-murder law’s meaning of

“immediate flight” or the dictionary definition of “immediate” to narrow the application

of the Official Victim Guideline, we affirm the district court.

          First, the phrase “immediate flight” has a legal meaning. See 2 LaFave,

Substantive Criminal Law § 14.5(f)(1). The felony murder rule requires for “immediate

flight” that “there [has] been no break in the chain of events.’” Id. (citations omitted).

This calls for a determination as to “whether the fleeing felon has reached a ‘place of

temporary safety.’” Id. (citations omitted). Further, most states use arrival at a place of

temporary safety to limit the temporal scope of a robbery. See Figueroa-Cartagena, 612

F.3d at 79.

          With very few cases construing “immediate flight” in the Official Victim

Guideline available to it, the district court here appropriately asked whether there was a


                                               25
“break in causation between the flight from the robbery and the shooting.” ROA, Vol. III

at 114. During the hour between the robbery and the shooting, Mr. Harris fled by car

with Mr. Patton and then on foot once the car stopped, traveling another two or three

miles to where he shot Detective Hill. Detective Hill had encountered Mr. Harris after

traveling along the route he hoped would lead him to find Mr. Harris. Mr. Harris was

still on foot when Detective Hill found him. It was not clear error for the district court to

determine that there was no “break in causation between the flight from the robbery and

the shooting” and consequently that the shooting “was part of the immediate flight” from

the robbery. Id. at 114.

       Second, the district court’s conclusion is consistent with dictionary definitions of

“immediate.”16 Divorced from context, we cannot say whether “instant,” “made or done

at once,” “occurring at once,” or “occurring without delay” means that something

immediate must happen within a minute, an hour, or a day. See Dougherty, 754 F.3d at

1359 (collecting dictionary definitions of “immediate”). Perhaps after an hour has

elapsed, driving a car away from an undetected burglary would place a defendant beyond

“immediate flight.” But here a responding officer quickly found Mr. Patton and Mr.

Harris driving from the scene of the robbery, and officers set up a perimeter to contain

Mr. Harris after he fled the getaway car on foot. Mr. Harris shot a detective who, hoping

to find Mr. Harris, drove in the direction officers saw Mr. Harris flee.



       16
       The dictionary defines only the word “immediate,” not the Guideline’s phrase
“immediate flight.”


                                             26
       Citing only Dougherty, Mr. Patton points to no case holding that “immediate

flight” ends within an hour. See Aplt. Br. at 23; Aplt. Reply Br. at 10-11. And in

Dougherty, the assault on a law enforcement officer occurred eight days after the

defendant had committed bank robbery in a different state. 754 F.3d at 1356. The court

held the lapse of eight days and travel from Georgia to Colorado did “not meet the

ordinary meaning of the term ‘immediate.’” Id. at 1359; see also United States v.

Gibson, 595 F. App’x 911, 913 (11th Cir. 2014) (unpublished) (“Gibson’s assault was not

‘immediate,’ as enough time had passed that Gibson was able to spend the night at a

hotel, be interviewed by the FBI, and be transferred to the local police department.”).

       The dictionary definitions of “immediate” denote a short lapse of time. An hour

may not be “immediate” in the context of every flight from an offense and may be

debatable in this case. But because applying the dictionary definitions of “immediate” or

legal definitions of “immediate flight” requires consideration of the factual context, and

because we review for clear error, we hold the district court did not err in concluding that

Mr. Harris’s shooting occurred during immediate flight.

                                      *    *        *   *

       The district court did not err in applying the Official Victim Guideline. The

shooting was Mr. Patton’s relevant conduct under § 1B1.3(a)(1)(B), so he was “otherwise

accountable” for it. Further, the shooting occurred during “immediate flight” from the

robbery.

                                   III. CONCLUSION

       We affirm the district court’s judgment.


                                               27
