In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1353

United States of America,

Plaintiff-Appellee,

v.

Nekis Atwater,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 00 CR 107--S. Hugh Dillin, Judge.

Argued October 29, 2001--Decided November 29, 2001



  Before Flaum, Chief Judge, and Posner and
Diane P. Wood, Circuit Judges.

  Posner, Circuit Judge. At sentencing
after his plea of guilty to bank robbery,
the defendant, Atwater, was given a five-
level boost in his sentence on the ground
that he knew or should have known that a
firearm would be used in the robbery.
Atwater’s codefendant, Cagle, was the one
who had actually entered the bank and
brandished a gun, but he claimed that he
and Atwater had planned the robbery
together and indeed that Atwater had
supplied the gun. Atwater admitted that
he had driven Cagle to and from the bank
but denied that he had supplied the gun
or knew that Cagle had one and planned to
use it in the robbery. U.S.S.G. sec.
2B3.1(b)(2)(C) imposes a five-level
enhancement for use of a gun during a
bank robbery and U.S.S.G. sec.
1B1.3(a)(1)(B) makes a defendant
accountable for all "reasonably
foreseeable" acts and omissions of others
in furtherance of a jointly undertaken
criminal activity. If Atwater knew that
Cagle planned to use a gun in the
robbery, then obviously that use was
"reasonably foreseeable" by him, was in
fact actually foreseen. And even if he
didn’t know, it might still have been
reasonably foreseeable by him.

  On these vital questions (what he knew
and what he should have known), all the
sentencing judge said was that Atwater
"either knew or should have known that a
firearm would be involved in this case. I
have never heard of a bank robbery
without a firearm. That is sort of a
given. And there is testimony from more
than one person that a firearm was
involved here." We have italicized the
key sentence in the judge’s statement--
the only reason he gave for thinking that
Atwater either knew or should have known
that Cagle had a gun: namely that all
bank robberies are committed with a gun.
But that is false. Although the
government’s lawyer could not furnish us
with any statistics, a call to his
employer, the Department of Justice,
produced the following FBI statistics for
1999: of the 6,599 robberies that year of
banks and related financial institutions,
firearms were used in only 1,988, which
is 30 percent; and--confirming our own
impression that many bank robberies are
committed by unarmed persons who hand
threatening notes to tellers--3,590 of
the robberies were indeed committed by
note. Federal Bureau of Investigation,
Bank Crime Statistics Jan. 1-Dec. 31,
1999, 1, 4 (2000).

  If all bank robberies were committed
with the aid of a gun, then Atwater
should have foreseen that Cagle would use
one. But since fewer than a third are, a
more discriminating analysis was called
for, the sort of thing we find in United
States v. Dixon, 982 F.2d 116, 120 (3d
Cir. 1992), where the court found that
"Stephanie Fletcher’s conduct in
pretending to brandish a gun was both in
furtherance of the robbery and reasonably
foreseeable by Dixon [the defendant]. Her
act of pretending to have a gun
facilitated commission of the bank
robbery, and Dixon planned and
masterminded that robbery. He gave
explicit and detailed instructions to
Stephanie and John Fletcher concerning
its commission, he waited in the get-away
car he had provided and he also provided
all of the clothes and paraphernalia
Stephanie and John used during the
robbery. Considering Dixon’s experience
with offenses of this nature, as shown by
his criminal history enhancement, and the
characteristics of a robbery by force, in
the old style, vi et armis, lead us to
the conclusion that Fletcher’s act was
attributable to Dixon as a matter of
law." Cf. United States v. Williams, 176
F.3d 301, 307 (6th Cir. 1999); United
States v. Soto, 959 F.2d 1181, 1187 (2d
Cir. 1992). Even in United States v.
Burton, 126 F.3d 666, 679 (5th Cir.
1997), where the analysis is perfunctory,
the court was satisfied that the district
judge had not committed a clear error in
inferring foreseeability from the general
character of bank robbery.

  The judge’s reasoning process in the
present case is unclear. Cagle had said
that Atwater had supplied the gun, and
the judge could have chosen to believe
him rather than Atwater. But we cannot
tell whether he did believe Cagle. He
gave Atwater a sentencing discount for
acceptance of responsibility, which he
would not, or at least should not, have
done if he thought Atwater was lying in
denying that he had furnished Cagle with
the gun or even knew Cagle was planning
to use a gun in the robbery. U.S.S.G.
sec. 3E1.1, Application Note 1(a); United
States v. Brack, 188 F.3d 748, 767 (7th
Cir. 1999). Although some cases say,
rather in the teeth of the wording of the
application note, that a lie about
relevant conduct is not an absolute bar
to an acceptance of responsibility
discount, United States v. Forte, 81 F.3d
215, 218 (D.C. Cir. 1996); United States
v. Patron-Montano, 223 F.3d 1184, 1190-91
(10th Cir. 2000), the presumption that it
is a bar is strong and the circumstances
would have to be extraordinary to rebut
it, as the court in Patron-Montano
acknowledged. Id.; see also United States
v. Sayetsitty, 107 F.3d 1405, 1410 (9th
Cir. 1997). There was no rebuttal here.
Atwater’s lie, if it was a lie, went to
the heart of his criminal conduct.

  The line between what is actually
foreseen and what is reasonably
foreseeable is the line between what the
defendant knew and what he should have
known. United States v. LaCroix, 28 F.3d
223, 229 (1st Cir. 1994). And what he
should have known was anything that was
probable, because probability is the
operational meaning of foreseeability.
Id. at 229; Beul v. ASSE International,
Inc., 233 F.3d 441, 447 (7th Cir. 2000);
S.A. Healy Co. v. Milwaukee Metropolitan
Sewerage District, 50 F.3d 476, 480-81
(7th Cir. 1995); Reardon v. Peoria &
Pekin Union Ry., 26 F.3d 52, 53 (7th Cir.
1994) ("to say that an injury is not
’foreseeable’ is simply to say that the
probability of loss is low"); Richard A.
Epstein, Torts 269 (1999). The
government’s lawyer even conceded at
argument that the practical meaning of
foreseeable is probable. But how
probable? In ordinary language, only low-
probability events are described as
unforeseeable. Supposing you closed your
eyes before crossing a busy street, the
chance of your being hit if you crossed
it just once in this way might well not
exceed 30 percent, because cars would
swerve to avoid hitting you; if you were
hit, however, anyone would say that it
was a foreseeable consequence of your
having closed your eyes. A substantial
fraction of bank robberies do involve the
use of a gun, so unless Atwater had some
special reason to think Cagle wasn’t
going to use a gun, that use may well
have been reasonably foreseeable to
Atwater. But that was a judgment to be
made by the sentencing judge in the first
instance, on the basis of a correct
understanding of all the pertinent facts.
The 30 percent figure that we derive from
FBI statistics abstracts from all the
particulars of the individual case. Those
particulars might make the probability of
the accomplice’s using a gun much higher
or much lower. As no evidence was put
before the sentencing judge in this case
of how frequently guns are used in bank
robberies and he greatly exaggerated that
frequency and having done so neglected
the particulars of the case, his judgment
cannot be upheld. Atwater’s sentence is
vacated and the case is remanded for
resentencing by a different judge.
