                            UNITED STATES of America, Plaintiff-Appellee,

                                                     v.

                             Michael Anthony COOK, Defendant-Appellant.

                               United States of America, Plaintiff-Appellee,

                                                     v.

                                Adrell Forthenberry, Defendant-Appellant.

                                         Nos. 98-2581, 98-2583.

                                     United States Court of Appeals,

                                             Eleventh Circuit.

                                              July 20, 1999.

Appeals from the United States District Court for the Northern District of Florida. (Nos. 3:97-CR-116-03/RV
and 3:97-CR-116-02/RV), Roger Vinson, Judge.

Before ANDERSON, Chief Judge, HILL, Senior Circuit Judge, and COOK*, Senior District Judge.

        COOK, Senior District Judge:

        Michael Anthony Cook and Adrell Forthenberry present separate, unconsolidated appeals from the

enhancement of their sentences through application of the reckless-endangerment-during-flight standard

under the Sentencing Guidelines. For the reasons that have been set forth below, we vacate and remand for

resentencing.

                                                     I.

        The criminal proceedings against Cook and Forthenberry resulted from their participation, along with

Levan Irvin, in a robbery of the Gulf Power Employees' Credit Union in Pensacola, Florida. The undisputed

facts are that Cook and Irvin entered the Credit Union building and committed the robbery while Forthenberry

waited approximately a block away in the getaway automobile. Cook and Irvin then ran to, and entered, the

vehicle and Forthenberry drove away. A Pensacola Police Officer, who had been conducting a surveillance



   *
   Honorable Julian Abele Cook, Jr., Senior U.S. District Court Judge for the Eastern District of
Michigan, sitting by designation.
of the Credit Union building at the time of the robbery, saw Cook and Irvin leave the premises and enter the

getaway vehicle. Believing that a crime had been committed, he proceeded to follow Cook, Forthenberry and

Irvin in an unmarked police vehicle. Shortly thereafter, Forthenberry jumped out of the driver's side door and

was immediately apprehended. Irvin then slid into the driver's seat and drove away. Cook exited the car soon

thereafter. Irvin, as the sole occupant of the getaway automobile, drove at a high rate of speed until he was

arrested after colliding with another police vehicle.

        Subsequent to their arrest, Cook and Forthenberry acknowledged their respective culpability for the

robbery by pleading guilty. As a result, Cook, having pled guilty to bank robbery in violation of 18 U.S.C.

§ 2113(a), was placed in custody of the Bureau of Prisons for a period of fifty-one months. Forthenberry

received a sixty-four month term of imprisonment after pleading guilty to one count of armed robbery in

violation of 18 U.S.C. §§ 2113(a) and (d) and a second count of bank robbery in violation of 18 U.S.C. §

2113(a).

        Consistent with the recommendations in each of their Presentence Investigation Reports, the trial

judge imposed the sentences upon them after applying a two-level enhancement for their reckless

endangerment during flight pursuant to U.S.S.G. § 3C1.2. Cook and Forthenberry contemporaneously

objected to the application of these enhancements, each of them contending that they did not directly or

actively participate in the high speed chase. In rejecting these arguments, the trial judge determined that, even

if they had voluntarily ended their participation in the getaway car prior to the commencement of the high

speed chase, the enhancement was still applicable because their disputed conduct was a reasonably

foreseeable consequence of the bank robbery.

        In their application for appellate review, neither Cook nor Forthenberry challenge the Government's

contention that they were active participants in the robbery of the Credit Union. However, it is their joint

position that they did not participate in the high speed chase which was attributed to them by the district court.

In support of his appeal, Forthenberry asserts that he (1) drove the car from the scene of the bank robbery at



                                                        2
a normal rate of speed, (2) immediately stopped his automobile after noticing that an unmarked police car was

following him, and (3) was forced out by Irvin who had placed a BB gun to his head. Cook also claims that

he had no desire to participate in a high speed chase but was unable to follow Forthenberry's lead and exit

the car from the backseat because the vehicle had only two doors. None of this evidence was controverted

during the proceedings below.

                                                      II.

         The standard of review for improper factual findings is clear error, United States v. Green, 40 F.3d

1167, 1175 (11th Cir.1994), while the application of the law to those facts by the trial court, such as its

interpretation and application of the United States Sentencing Guidelines, is reviewed de novo, see United

States v. Carroll, 6 F.3d 735, 743 (11th Cir.1993); United States v. Burton, 933 F.2d 916, 917 (11th

Cir.1991).

        The Sentencing Guideline at issue 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 by 2 levels." U.S.S.G. § 3C1.2. On the other hand, Application Note Five to this Sentencing

Guideline provides that "[u]nder this section, the defendant is accountable for his own conduct and for

conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused."

        The dispute in this matter as to whether U.S.S.G. § 3C1.2 was correctly applied to Cook and

Forthenberry arises from an apparent conflict between Application Note Five and the relevant conduct

provision within the Sentencing Guidelines, U.S.S.G. § 1B1.3, which provides that "in the case of a jointly

undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant

in concert with others, whether or not charged as a conspiracy)," guideline ranges are to be determined on

the basis of: "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken

criminal activity, that occurred during the commission of the offense of conviction, in preparation for that




                                                      3
offense, or in the course of attempting to avoid detection or responsibility for that offense." U.S.S.G. §

1B1.3(a)(1)(B).

        The district court determined that (1) Cook, Forthenberry, and Irvin had participated in a conspiracy

to rob the bank, (2) an ensuing high speed chase was a reasonably foreseeable consequence of this conspiracy,

and (3) even if Cook and Forthenberry had voluntarily exited the car, this conduct occurred too late for them

to have legally disavowed the conspiracy. Hence, the Court concluded that pursuant to U.S.S.G. §

1B1.3(a)(1)(B), they could be held accountable for the high speed chase through the application of U.S.S.G.

§ 3C1.2.

        The sentencing court agreed with the Government's argument that an application of the reckless

endangerment enhancement was consistent with United States v. Jones, 32 F.3d 1512 (11th Cir.1994) (per

curiam). There, Jones drove a getaway vehicle after the robbery of a credit union, while two accomplices in

the robbery rode as passengers. Jones, 32 F.3d at 1514-15. A high speed chase with law enforcement ensued,

during which one of the accomplices brandished a weapon at the pursuing officer. Id. at 1515. As in this

case, the district court applied the reckless endangerment enhancement against Jones by relying upon the

relevant conduct provision and its reasonable foreseeability standard. Id. at 1520. This Circuit affirmed. Id.

        Undoubtedly, Jones could be reasonably read as having accepted the propriety of a reasonable

foreseeability analysis with respect to the reckless-endangerment guideline, noting that it was reasonably

foreseeable that the passenger would have brandished a gun to facilitate escape. Id. However, the Jones

tribunal neither addressed whether such an analysis was proper nor questioned its validity. By the same

token, the decision in Jones could also be easily read and interpreted as having concluded that it was the high

speed chase which created a substantial risk of death or serious bodily injury to others. See id.

        However, Jones is distinguishable in an important respect; namely, that the U.S.S.G. § 3C1.2

enhancement was applied to the driver of the getaway vehicle, who had engaged the police in a high speed

chase which, in turn, created a substantial risk of grievous harm to others. Id. This Circuit has not directly



                                                      4
addressed a situation in which the reckless-endangerment guideline was applied to someone other than the

individual who had actually engaged in the endangering conduct, as appears to have been the case here. See

United States v. Gonzalez, 71 F.3d 819, 836-37 (11th Cir.1996) (upholding reckless-endangerment

enhancement for defendant driving at high speeds in reverse down residential street); United States v.

Bagwell, 30 F.3d 1454, 1456, 1457 n. 10 (11th Cir.1994) (finding no error in reckless-endangerment

enhancement for defendant who accelerated truck while driving directly toward police officer and attempted

to evade a roadblock); Jones, 32 F.3d at 1520.

        Nevertheless, we have intimated that some form of direct or active participation which is consistent

with Application Note Five is necessary in order for § 3C1.2 to apply. In United States v. Burton, 933 F.2d

916, 917 (11th Cir.1991), two males, who had been ordered to stop their automobile on the basis of a tip that

they were transporting cocaine, were apprehended when they struck a law enforcement vehicle in an effort

to escape. On the appeal by the passenger, the Court noted that "[a]lthough [the defendant] was not driving

the vehicle, there appears to be some indication in the record before us that [he] may have urged or directed

the driver to take evasive action. If such action could be considered upon rehearing to have been reckless,

an enhancement may be appropriate." Burton, 933 F.2d at 918 n. 1. Our reliance upon the possibility that

the passenger may have actively participated in the endangering conduct in a manner which is consistent with

Application Note Five, rather than on his mere participation in criminal conduct that might foreseeably have

resulted in an escape attempt that included endangering conduct, lends support to the Appellants' positions

in the current appeal.

        Every other circuit, which has addressed the applicability of imposing this standard upon someone

other than the person who was directly engaged in the reckless activity, has required more than evidence of

an endangering conduct that was reasonably foreseeable. Rather, they have demanded the presence of some

form of active participation by the accused within the meaning of the conduct listed in Application Note Five.

See United States v. Conley, 131 F.3d 1387, 1390-91 (10th Cir.1997) (enhancement may not be based on



                                                      5
reasonable foreseeability alone, but may be based on conduct before, during, or after high speed chase, such

as procuring or encouraging reckless behavior); United States v. Lipsey, 62 F.3d 1134, 1136-37 (9th

Cir.1995) (rejecting § 3C1.2 enhancement where district court relied solely on reasonable foreseeability of

high speed getaway by defendant-passenger who participated in armed bank robbery with

co-defendant-driver); see also United States v. Hall, 71 F.3d 569, 571-72 (6th Cir.1995) ("reasonable

foreseeability" may be insufficient for § 3C1.2 enhancement when defendant was under control of

co-defendant who drove getaway vehicle).

         Unlike Jones, we are now squarely faced with the issue of whether the application of a reasonable

foreseeability analysis under § 1B1.3(a)(1)(B) is appropriate when considering whether the

reckless-endangerment-during-flight enhancement standard under § 3C1.2 should be applied. It is our

conclusion that the approach of our sister circuits should be adopted because it, rather than that used by the

district court, is more consistent with the plain language of the Sentencing Guidelines. The approach of the

district court of correlating § 1B1.3(a)(1)(B) with § 3C1.2 appears to have violated the Sentencing Guidelines,

which direct that the adjustments in Chapter Three, such as § 3C1.2, are to be consistent with §

1B1.3(a)(1)(B) "[u]nless otherwise specified." U.S.S.G. § 1B1.3(a) (emphasis added). Application Note Five

to § 3C1.2 qualifies as an instance in which the Sentencing Guidelines have specified that § 1B1.3(a)(1)(B)

does not apply. Application Note Five expressly states that, under § 3C1.2, a defendant is responsible for (1)

his own conduct, and (2) the conduct of others, but only if he "aided or abetted, counseled, commanded,

induced, procured, or willfully caused" it. By limiting the responsibility for another's actions to those

instances when the defendant "aided or abetted, counseled, commanded, induced, procured, or willfully

caused" that person's conduct, Application Note Five establishes an exception to the general rule in §

1B1.3(a)(1)(B). Thus, Application Note Five to § 3C1.2 constitutes an instance in which the Guidelines have

specified that § 1B1.3(a)(1)(B) is not to apply.1

   1
   The Government points out that Illustration (b)(1) to § 1B1.3 is similar to the facts in this case and
supports its position. Illustration (b)(1) provides:

                                                      6
        This reading is not only justified by the plain language of the Sentencing Guidelines but also by the

realization that the approach by the district court renders Application Note Five a nullity. Under the

reasoning by the court below, the reckless-endangerment-during-flight enhancement standard could apply

to Cook and Forthenberry without regard to whether they entered the getaway vehicle or made any attempt

to flee from police.2 This rationale would transform U.S.S.G. § 3C1.2 from a factually-specific enhancement

to a standard that would become universally applicable to virtually everyone whose co-conspirators fled from

law enforcement immediately following the commission of a crime, resulting in a substantial risk of death

or serious bodily injury to another person.

                                                     III.

        Consequently, the sentences imposed upon Cook and Forthenberry are VACATED and their cases

are REMANDED for a resentencing. The trial judge is instructed to assess whether, by a preponderance of

the evidence, the Government can establish that either or both of them directly engaged in, or actively "aided

or abetted, counseled, commanded, induced, procured, or willfully caused" another to engage in, conduct that

satisfies the recklessness standard in § 3C1.2. See United States v. Matthews, 168 F.3d 1234, 1247 (11th

Cir.1999). Further, in order to apply § 3C1.2 to either Appellant, the district court "must make a specific

finding, based on the record before it, that the defendant actively caused or procured the reckless behavior

at issue." Conley, 131 F.3d at 1390.


                Defendant C is the getaway driver in an armed bank robbery in which $15,000 is taken
                and 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 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).

        However, this Illustration is not instructive, in that it does not address the enhancements based on
        flight, as does § 3C1.2. Thus, it does not speak to the issue in question; namely whether
        Application Note Five is an instance in which the Guidelines have "otherwise specified" that §
        1B1.3 does not apply.
   2
   This assumes that the failure to get into the vehicle or flee from police would be legally insufficient to
constitute a withdrawal from the conspiracy, which would appear to be the only basis for avoiding an
application of the relevant conduct provision under the analysis of the sentencing court.

                                                      7
                               ANDERSON, Chief Judge, concurs specially.

        ANDERSON, Chief Judge, concurring specially:

        I concur in the result only. Because the district court was clearly erroneous in finding that the high

speed chase was reasonably foreseeable, it is not necessary to address the difficult question of law which the

majority resolves.

        In this case, the government conceded at oral argument that both defendants got out of the car as soon

as there was any forewarning of a high speed chase. Thus, any inference that a high speed chase was

reasonably foreseeable was removed by the evidence in this case.




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