Submitted March 31, 2015.
Appeal from the judgment of the United States District Court for the Southern District of New York (Briccetti, J.), sentencing Defendant-Appellant Joseph McCrimon principally to 63 months' imprisonment for bank robbery in violation of 18 U.S.C. § 2113(a). As a matter of first impression, we consider whether Application Note 5 to U.S.S.G. § 3C1.2 provides an exception to the general rule, set forth in U.S.S.G. § 1B1.3(a)(1)(B), for imposing a Guidelines enhancement based on a co-defendant's foreseeable conduct. We join our sister circuits in concluding that it does, and therefore remand for resentencing.
Vacated and remanded.
Andrew A. Rubin, Mancuso, Rubin & Fifidio, White Plains, NY, for Defendant-Appellant Joseph McCrimon.
Margaret M. Garnett, Assistant United States Attorney (Preet Bharara, United States Attorney for the Southern District of New York, on the brief), New York, NY, for Appellee.
Before: POOLER, LOHIER, and CARNEY, Circuit Judges.
Defendant-Appellant Joseph McCrimon appeals from the May 22, 2014 judgment of the United States District Court for the Southern District of New York (Briccetti, J. ), sentencing him principally to 63 months' imprisonment for bank robbery, in violation of 18 U.S.C. § 2113(a). McCrimon pleaded guilty pursuant to a plea agreement, which acknowledged the parties' dispute over the applicability of the U.S.S.G. § 3C1.2 sentencing enhancement for reckless endangerment during flight. Because we conclude that Application Note 5 to U.S.S.G. § 3C1.2, not Section 1B1.3(a)(1)(B), provides the proper standard for applying the enhancement based on a co-defendant's conduct, we remand for resentencing.
The district court made the following factual findings at sentencing. McCrimon left the scene of the bank robbery in a getaway car driven by his co-defendant, James Sherrod. Soon after, police attempted to stop the car. Following a brief pause, the vehicle fled, leading police on a chase through busy streets at speeds of up to one hundred miles per hour, sometimes on the wrong side of the road. The getaway car hit at least one vehicle and endangered other individuals, including a second passenger in the getaway car, before it ultimately crashed.
Although the Government submitted testimony that McCrimon encouraged Sherrod to flee from the police and to increase his speed during the chase, the district court declined to make any factual findings based on the proffered evidence. It reasoned that this determination was unnecessary to its sentencing analysis, because, under the relevant conduct rules of U.S.S.G. § 1B1.3(a)(1)(B), it was sufficient that McCrimon could have reasonably foreseen that his co-defendant would drive the getaway car in a manner that would recklessly endanger others in furtherance of the bank robbery. Based on that conclusion, the district court calculated McCrimon's Guidelines range to include a two-level enhancement under U.S.S.G. § 3C1.2 for " recklessly creat[ing] a substantial risk of death or serious bodily injury to [others] in the course of fleeing from a law enforcement officer."
McCrimon timely appealed, asserting that the district court erred in applying the two-level enhancement under U.S.S.G. § 3C1.2 because Sherrod's reckless driving would not have been reasonably foreseeable to McCrimon due to McCrimon's extremely diminished cognitive abilities. With McCrimon's consent, the ...