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Fourth Circuit Announces Reasonably Foreseeable Acts of Co-Conspirators Not Sufficient for Fleeing Sentence Enhancement Under U.S.S.G. § 3C1.2

by David Reutter

The U.S. Court of Appeals for the Eighth Circuit ruled that to impose an offense level enhancement on grounds that 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” requires proof that the defendant directly or actively participated in the dangerous flight.

Before the Court was the appeal of Stephen Reggs who, along with two others, robbed a Minneapolis convenience store. Reggs pleaded guilty to aiding and abetting a robbery that interfered with commerce under 18 U.S.C. §§ 2, 1951 and aiding and abetting the discharge of a firearm during that robbery under 18 U.S.C. §§ 2, 924(c)(1)(A)(iii). 

The district court increased the Sentencing Guidelines sentence two levels by applying the fleeing enhancement contained in U.S.S.G. § 3C1.2, which is implicated when a person recklessly creates “a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” Reggs argued the evidence does not support the enhancement, and the Eighth Circuit agreed.

The general rule is that a Guidelines enhancement applies not only for the defendant’s own conduct and the conduct he aids and abets but also for certain reasonably foreseeable conduct of co-conspirators. U.S.S.G. § 1B1.3(a)(1). That rule, however, yields where sentence enhancement rules specifically state otherwise. Id. 

As to the fleeing enhancement, Application Note 5 to that enhancement states that “[u]nder this section, the defendant is accountable for the defendant’s own conduct and for conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused.” The Court pointed out that conspicuously absent “is any reference to the defendant being accountable for the reasonably foreseeable acts of co-conspirators.”

In cases such as this, the record must show that a passenger in a fleeing vehicle “was responsible for or brought about the driver’s conduct in some way.” United States v. Franklin, 321 F.3d 1231(9th Cir. 2003). Franklin involved similar circumstances as in Reggs’, and the court held that a robbery participant’s knowledge that “getaway vehicles are part of the plan is insufficient, without more, to allow a district court to impose this enhancement on individuals not directly committing the acts amounting to reckless endangerment.”

In Reggs’ case, the driver fled when police walked up to the getaway car “and a short chase ensued.” It ended when they crashed into a parked car, and Reggs fled on foot. He was caught several days later. This evidence was held to be insufficient to support this fleeing enhancement.

Accordingly, the judgment was vacated remanded for resentencing. See: United States v. Reggs, 909 F.3d 911(8th Cir. 2018). 

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