14-1929 United States v. McCrimon
1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ____________________ 4 5 August Term, 2014 6 7 (Submitted: March 31, 2015 Decided: June 4, 2015) 8 9 Docket No. 14‐1929 10 11 ____________________ 12 13 UNITED STATES OF AMERICA, 14 15 16 Appellee, 17 18 v. 19 20 JOSEPH McCRIMON,1 21 22 Defendant‐Appellant. 23 24 ____________________ 25 26 Before: POOLER, LOHIER, and CARNEY, Circuit Judges. 27
1 The Clerk of the Court is directed to amend the caption as above. 1 Appeal from the judgment of the United States District Court for the
2 Southern District of New York (Briccetti, J.), sentencing Defendant‐Appellant
3 Joseph McCrimon principally to 63 months= imprisonment for bank robbery in
4 violation of 18 U.S.C. § 2113(a). As a matter of first impression, we consider
5 whether Application Note 5 to U.S.S.G. § 3C1.2 provides an exception to the
6 general rule, set forth in U.S.S.G. § 1B1.3(a)(1)(B), for imposing a Guidelines
7 enhancement based on a co‐defendant’s foreseeable conduct. We join our sister
8 circuits in concluding that it does, and therefore remand for resentencing.
9 Vacated and remanded.
10 ____________________
11 Andrew A. Rubin, Mancuso, Rubin & Fifidio, White 12 Plains, NY, for Defendant‐Appellant Joseph McCrimon. 13 14 Margaret M. Garnett, Assistant United States Attorney 15 (Preet Bharara, United States Attorney for the Southern 16 District of New York, on the brief), New York, NY, for 17 Appellee. 18 19 20 21 PER CURIAM:
22 Defendant‐Appellant Joseph McCrimon appeals from the May 22, 2014
23 judgment of the United States District Court for the Southern District of New 14-1929 United States v. McCrimon
1 York (Briccetti, J.), sentencing him principally to 63 months= imprisonment for
2 bank robbery, in violation of 18 U.S.C. § 2113(a). McCrimon pleaded guilty
3 pursuant to a plea agreement, which acknowledged the parties’ dispute over the
4 applicability of the U.S.S.G. § 3C1.2 sentencing enhancement for reckless
5 endangerment during flight.2 Because we conclude that Application Note 5 to
6 U.S.S.G. § 3C1.2, not Section 1B1.3(a)(1)(B), provides the proper standard for
7 applying the enhancement based on a co‐defendant’s conduct, we remand for
8 resentencing.
9 BACKGROUND
10 The district court made the following factual findings at sentencing.
11 McCrimon left the scene of the bank robbery in a getaway car driven by his
12 co‐defendant, James Sherrod. Soon after, police attempted to stop the car.
13 Following a brief pause, the vehicle fled, leading police on a chase through busy
14 streets at speeds of up to one hundred miles per hour, sometimes on the wrong
2 U.S.S.G. § 3C1.2 provides, “If 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.”
3 14-1929 United States v. McCrimon
1 side of the road. The getaway car hit at least one vehicle and endangered other
2 individuals, including a second passenger in the getaway car, before it ultimately
3 crashed.
4 Although the Government submitted testimony that McCrimon
5 encouraged Sherrod to flee from the police and to increase his speed during the
6 chase, the district court declined to make any factual findings based on the
7 proffered evidence. It reasoned that this determination was unnecessary to its
8 sentencing analysis, because, under the relevant conduct rules of U.S.S.G.
9 § 1B1.3(a)(1)(B), it was sufficient that McCrimon could have reasonably foreseen
10 that his co‐defendant would drive the getaway car in a manner that would
11 recklessly endanger others in furtherance of the bank robbery. Based on that
12 conclusion, the district court calculated McCrimon’s Guidelines range to include
13 a two‐level enhancement under U.S.S.G. § 3C1.2 for “recklessly creat[ing] a
14 substantial risk of death or serious bodily injury to [others] in the course of
15 fleeing from a law enforcement officer.”
16 McCrimon timely appealed, asserting that the district court erred in
17 applying the two‐level enhancement under U.S.S.G. § 3C1.2 because Sherrod’s
4 14-1929 United States v. McCrimon
1 reckless driving would not have been reasonably foreseeable to McCrimon due
2 to McCrimon’s extremely diminished cognitive abilities. With McCrimon’s
3 consent, the Government now moves to remand for resentencing on the basis
4 that the district court applied the incorrect standard in determining whether
5 McCrimon’s sentence could be enhanced based on his co‐defendant’s conduct.
6 DISCUSSION
7 I. Standard of Review
8 We review a sentence for procedural and substantive reasonableness,
9 which is akin to a “deferential abuse‐of‐discretion standard.” United States v.
10 Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (internal quotation marks omitted).
11 Procedural error occurs when, for example, the district court “makes a mistake in
12 its Guidelines calculation.” Id. at 190. We review the district court’s interpretation
13 of the Guidelines de novo and its factual findings for clear error. United States v.
14 Richardson, 521 F.3d 149, 156 (2d Cir. 2008).
15 Because McCrimon did not object to the district court’s use of the
16 reasonable foreseeability standard set forth in Section 1B1.3(a)(1)(B), we review
17 for plain error. See United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010). Under
5 14-1929 United States v. McCrimon
1 that standard, an appellant must demonstrate that “(1) there is an error; (2) the
2 error is clear or obvious, rather than subject to reasonable dispute; (3) the error
3 affected the appellant’s substantial rights, which in the ordinary case means it
4 affected the outcome of the district court proceedings; and (4) the error seriously
5 affects the fairness, integrity or public reputation of judicial proceedings.” United
6 States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks and alterations
7 omitted). “[T]he plain error doctrine should not be applied stringently in the
8 sentencing context, where the cost of correcting an unpreserved error is not as
9 great as in the trial context.” United States v. Wernick, 691 F.3d 108, 113 (2d Cir.
10 2012) (internal quotation marks omitted).
11 For the reasons set forth below, we conclude that the district court
12 committed plain error in its calculation of McCrimon’s Guidelines range.
13 II. Analysis
14 The Sentencing Guidelines provide a general rule governing application of
15 its provisions based on a co‐defendant’s conduct: “Unless otherwise specified, . .
16 . adjustments . . . shall be determined on the basis of[,] . . . in the case of a jointly
17 undertaken criminal activity . . . , all reasonably foreseeable acts and omissions of
6 14-1929 United States v. McCrimon
1 others in furtherance of the jointly undertaken criminal activity. . . .” U.S.S.G.
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14-1929 United States v. McCrimon
1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ____________________ 4 5 August Term, 2014 6 7 (Submitted: March 31, 2015 Decided: June 4, 2015) 8 9 Docket No. 14‐1929 10 11 ____________________ 12 13 UNITED STATES OF AMERICA, 14 15 16 Appellee, 17 18 v. 19 20 JOSEPH McCRIMON,1 21 22 Defendant‐Appellant. 23 24 ____________________ 25 26 Before: POOLER, LOHIER, and CARNEY, Circuit Judges. 27
1 The Clerk of the Court is directed to amend the caption as above. 1 Appeal from the judgment of the United States District Court for the
2 Southern District of New York (Briccetti, J.), sentencing Defendant‐Appellant
3 Joseph McCrimon principally to 63 months= imprisonment for bank robbery in
4 violation of 18 U.S.C. § 2113(a). As a matter of first impression, we consider
5 whether Application Note 5 to U.S.S.G. § 3C1.2 provides an exception to the
6 general rule, set forth in U.S.S.G. § 1B1.3(a)(1)(B), for imposing a Guidelines
7 enhancement based on a co‐defendant’s foreseeable conduct. We join our sister
8 circuits in concluding that it does, and therefore remand for resentencing.
9 Vacated and remanded.
10 ____________________
11 Andrew A. Rubin, Mancuso, Rubin & Fifidio, White 12 Plains, NY, for Defendant‐Appellant Joseph McCrimon. 13 14 Margaret M. Garnett, Assistant United States Attorney 15 (Preet Bharara, United States Attorney for the Southern 16 District of New York, on the brief), New York, NY, for 17 Appellee. 18 19 20 21 PER CURIAM:
22 Defendant‐Appellant Joseph McCrimon appeals from the May 22, 2014
23 judgment of the United States District Court for the Southern District of New 14-1929 United States v. McCrimon
1 York (Briccetti, J.), sentencing him principally to 63 months= imprisonment for
2 bank robbery, in violation of 18 U.S.C. § 2113(a). McCrimon pleaded guilty
3 pursuant to a plea agreement, which acknowledged the parties’ dispute over the
4 applicability of the U.S.S.G. § 3C1.2 sentencing enhancement for reckless
5 endangerment during flight.2 Because we conclude that Application Note 5 to
6 U.S.S.G. § 3C1.2, not Section 1B1.3(a)(1)(B), provides the proper standard for
7 applying the enhancement based on a co‐defendant’s conduct, we remand for
8 resentencing.
9 BACKGROUND
10 The district court made the following factual findings at sentencing.
11 McCrimon left the scene of the bank robbery in a getaway car driven by his
12 co‐defendant, James Sherrod. Soon after, police attempted to stop the car.
13 Following a brief pause, the vehicle fled, leading police on a chase through busy
14 streets at speeds of up to one hundred miles per hour, sometimes on the wrong
2 U.S.S.G. § 3C1.2 provides, “If 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.”
3 14-1929 United States v. McCrimon
1 side of the road. The getaway car hit at least one vehicle and endangered other
2 individuals, including a second passenger in the getaway car, before it ultimately
3 crashed.
4 Although the Government submitted testimony that McCrimon
5 encouraged Sherrod to flee from the police and to increase his speed during the
6 chase, the district court declined to make any factual findings based on the
7 proffered evidence. It reasoned that this determination was unnecessary to its
8 sentencing analysis, because, under the relevant conduct rules of U.S.S.G.
9 § 1B1.3(a)(1)(B), it was sufficient that McCrimon could have reasonably foreseen
10 that his co‐defendant would drive the getaway car in a manner that would
11 recklessly endanger others in furtherance of the bank robbery. Based on that
12 conclusion, the district court calculated McCrimon’s Guidelines range to include
13 a two‐level enhancement under U.S.S.G. § 3C1.2 for “recklessly creat[ing] a
14 substantial risk of death or serious bodily injury to [others] in the course of
15 fleeing from a law enforcement officer.”
16 McCrimon timely appealed, asserting that the district court erred in
17 applying the two‐level enhancement under U.S.S.G. § 3C1.2 because Sherrod’s
4 14-1929 United States v. McCrimon
1 reckless driving would not have been reasonably foreseeable to McCrimon due
2 to McCrimon’s extremely diminished cognitive abilities. With McCrimon’s
3 consent, the Government now moves to remand for resentencing on the basis
4 that the district court applied the incorrect standard in determining whether
5 McCrimon’s sentence could be enhanced based on his co‐defendant’s conduct.
6 DISCUSSION
7 I. Standard of Review
8 We review a sentence for procedural and substantive reasonableness,
9 which is akin to a “deferential abuse‐of‐discretion standard.” United States v.
10 Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (internal quotation marks omitted).
11 Procedural error occurs when, for example, the district court “makes a mistake in
12 its Guidelines calculation.” Id. at 190. We review the district court’s interpretation
13 of the Guidelines de novo and its factual findings for clear error. United States v.
14 Richardson, 521 F.3d 149, 156 (2d Cir. 2008).
15 Because McCrimon did not object to the district court’s use of the
16 reasonable foreseeability standard set forth in Section 1B1.3(a)(1)(B), we review
17 for plain error. See United States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010). Under
5 14-1929 United States v. McCrimon
1 that standard, an appellant must demonstrate that “(1) there is an error; (2) the
2 error is clear or obvious, rather than subject to reasonable dispute; (3) the error
3 affected the appellant’s substantial rights, which in the ordinary case means it
4 affected the outcome of the district court proceedings; and (4) the error seriously
5 affects the fairness, integrity or public reputation of judicial proceedings.” United
6 States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks and alterations
7 omitted). “[T]he plain error doctrine should not be applied stringently in the
8 sentencing context, where the cost of correcting an unpreserved error is not as
9 great as in the trial context.” United States v. Wernick, 691 F.3d 108, 113 (2d Cir.
10 2012) (internal quotation marks omitted).
11 For the reasons set forth below, we conclude that the district court
12 committed plain error in its calculation of McCrimon’s Guidelines range.
13 II. Analysis
14 The Sentencing Guidelines provide a general rule governing application of
15 its provisions based on a co‐defendant’s conduct: “Unless otherwise specified, . .
16 . adjustments . . . shall be determined on the basis of[,] . . . in the case of a jointly
17 undertaken criminal activity . . . , all reasonably foreseeable acts and omissions of
6 14-1929 United States v. McCrimon
1 others in furtherance of the jointly undertaken criminal activity. . . .” U.S.S.G.
2 § 1B1.3(a)(1)(B). The general rule therefore applies “unless otherwise specified.”
3 Id. A special conduct rule governing the reckless endangerment enhancement of
4 Section 3C1.2 is set forth in Application Note 5, which states, “[u]nder this
5 section, the defendant is accountable for the defendant’s own conduct and for
6 conduct that the defendant aided or abetted, counseled, commanded, induced,
7 procured, or willfully caused.” U.S.S.G. § 3C1.2 cmt. n.5. Thus, by the plain
8 language of the Guidelines, the district court may not apply the Section 3C1.2
9 enhancement unless it finds that the defendant himself “recklessly created a
10 substantial risk of death or serious bodily injury to another person in the course
11 of fleeing from a law enforcement officer” or that he “aided[,] abetted,” or
12 otherwise contributed to the creation of such a risk in one of the enumerated
13 ways. Id.; see also Stinson v. United States, 508 U.S. 36, 38 (1993) (“[C]ommentary in
14 the Guidelines Manual that interprets or explains a guideline is authoritative
15 unless it violates the Constitution or a federal statute, or is inconsistent with, or a
16 plainly erroneous reading of, that guideline.”). The district court therefore erred
17 by applying the enhancement based merely on a finding that McCrimon could
7 14-1929 United States v. McCrimon
1 have reasonably foreseen that his co‐defendant would recklessly endanger others
2 while fleeing from the police in furtherance of the crime.
3 Every other circuit to consider the issue has held that “some form of direct
4 or active participation which is consistent with Note 5 is necessary in order for
5 § 3C1.2 to apply.” United States v. Cespedes, 663 F.3d 685, 690 (3d Cir. 2011)
6 (internal quotation marks and alterations omitted); see also United States v.
7 Johnson, 694 F.3d 1192, 1196 (11th Cir. 2012); United States v. Franklin, 321 F.3d
8 1231, 1237 (9th Cir. 2003); United States v. Chong, 285 F.3d 343, 346 (4th Cir. 2002);
9 United States v. Conley, 131 F.3d 1387, 1390 (10th Cir. 1997). It follows that
10 “[k]nowingly participating in an armed robbery in which getaway vehicles are
11 part of the plan is insufficient as a matter of law, without more, to allow a district
12 court to impose this enhancement on individuals not directly committing the acts
13 amounting to reckless endangerment.” Franklin, 321 F.3d at 1237. Given the plain
14 meaning of the provision’s language and the widespread agreement among our
15 sister circuits, the appropriate standard for applying Section 3C1.2 is not “subject
16 to reasonable dispute,” Marcus, 560 U.S. at 262, and the district court’s error was
17 clear.
8 14-1929 United States v. McCrimon
1 The third and fourth prongs of plain error review may be satisfied where
2 the district court commits an error in its Guidelines calculation, the “starting
3 point in selecting a sentence.” Wernick, 691 F.3d at 117 (internal quotation marks
4 omitted). Here, if the district court had not applied the enhancement,
5 McCrimon’s Guidelines range would have been 51 to 63 months’ imprisonment,
6 rather than 63 to 78 months’ imprisonment. See U.S.S.G. Ch. 5 Pt. A. The court’s
7 error therefore had a “potentially serious impact on the sentence imposed.”
8 Wernick, 691 F.3d at 117. Because of the significant impact on the Guidelines
9 range, the resulting possibility that the court imposed a longer term of
10 imprisonment than it would otherwise have chosen, and the relatively low cost
11 of correcting the error, failing to permit the district court to correct the error
12 would negatively affect the fairness of the proceedings.
13 CONCLUSION
14 For the foregoing reasons, we conclude that the district court plainly erred
15 in applying the Section 3C1.2 sentencing enhancement based solely on a finding
16 that McCrimon reasonably could have foreseen that his co‐defendant would
17 recklessly endanger others while fleeing from the scene of his bank robbery. We
9 14-1929 United States v. McCrimon
1 express no view as to the other features of McCrimon’s sentence. Accordingly,
2 the sentence is VACATED and REMANDED for resentencing consistent with this
3 opinion.