United States v. Metzger

233 F.3d 1226, 2000 Colo. J. C.A.R. 6409, 2000 U.S. App. LEXIS 29763, 2000 WL 1745153
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 28, 2000
Docket00-5055
StatusPublished
Cited by18 cases

This text of 233 F.3d 1226 (United States v. Metzger) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Metzger, 233 F.3d 1226, 2000 Colo. J. C.A.R. 6409, 2000 U.S. App. LEXIS 29763, 2000 WL 1745153 (10th Cir. 2000).

Opinion

LUCERO, Circuit Judge.

We consider whether a “bodily injury” enhancement may be applied pursuant to United States Sentencing Guidelines § 2B3.1(b)(3)(B) to increase a defendant’s sentence where the relevant injury was inflicted by a police officer. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we conclude that a sentence enhancement under these circumstances is appropriate.

I

Defendant-appellant Jack Eugene Metz-ger, Jr. was convicted of robbing a police *1227 credit union in Tulsa, Oklahoma in violation of 18 U.S.C. § 2113(a). On appeal, Metzger argues that the district court improperly enhanced his sentence by four levels under U.S.S.G. § 2B3.1(b)(3)(B) for causing serious bodily injury to a victim.

On August 31, 1999, Metzger entered the Fraternal Order of Police Credit Union and handed a teller a note that read: “[G]ive me your money, no dye pack or I will be back. Thank you.” (II R. at 4.) Shortly after Metzger received $865 from the teller and left the bank, a uniformed police officer, L.L. Edwards, who was transacting personal business in the bank, learned of the robbery. Having been mistakenly told that the perpetrator was still in the parking lot in a blue vehicle, Edwards went out to the parking lot and approached a blue car with a single occupant. When the driver began to reach for the floor of the car and then to drive away, Edwards, believing the driver was reaching for a gun, fired a shot at the car. His shot hit Jamie Myers, a bank customer and innocent bystander, in the shoulder. Meanwhile, Metzger had pedaled away on a bicycle.

II

Because the facts of Metzger’s underlying conviction are undisputed, we review the district court’s application of § 2B3.1(b)(3)(B) of the Sentencing Guidelines de novo. See United States v. Fisher, 132 F.3d 1327, 1328 (10th Cir.1997). U.S.S.G. § 2B3.1(b)(3)(B) requires a sentencing court to “increase the offense level” by four levels if “any victim” sustained “serious bodily injury.” Metzger contends that a four-level enhancement for Myers’s injury was improper because her injury was not a reasonably foreseeable result of his criminal conduct. 1

Pursuant to U.S.S.G. §§ lB1.3(a)(l)(A) and (a)(3), Myers’s injury is attributable to Metzger’s conduct if it is “harm that resulted from the acts and omissions that were “committed, ... induced, procured, or willfully caused” by Metzger. Courts interpreting the “resulted from” language of U.S.S.G. § 1B1.3(a)(3) have allowed increased sentences for harms that were a “reasonably foreseeable” consequence of a defendant’s conduct. United States v. Molina, 106 F.3d 1118, 1124-25 (2d Cir.1997) (upholding a U.S.S.G. § 2B3.1(b)(3)(B) enhancement because the shooting of a bystander by a security guard was “reasonably foreseeable” pursuant to U.S.S.G. § 1B1.3(a)(3)); see also United States v. Passmore, 165 F.3d 21, 1998 WL 746866, at *2 (4th Cir.1998) (upholding a U.S.S.G. § 2B3.1(b)(3)(A) enhancement because a policeman’s injury was “reasonably foreseeable” to the defendant); United States v. Fitzwater, 896 F.2d 1009, 1012 (6th Cir. 1990) (upholding a U.S.S.G. § 2B3.1(b)(3)(A) enhancement because an injury to a bank teller during a robbery was “reasonably foreseeable”); cf. United States v. Walls, 80 F.3d 238, 241-42 (7th Cir.1996) (upholding an upward departure pursuant to U.S.S.G. § 2K2.1 where a bystander’s death was “a foreseeable risk” of the defendant’s conduct); United States v. Salazar-Villarreal, 872 F.2d 121, 123 (5th Cir.1989) (upholding an upward departure pursuant to U.S.S.G. §§ 5K2.1 and 5K2.2 where the defendant’s “reckless” flight to avoid capture foreseeably resulted in the accidental death of aliens hiding in defendant’s vehicle).

Metzger argues that no one reasonably could have expected an unarmed bank robbery and successful getaway would end in the injury of an innocent bystander at the hands of “an off-duty police officer ... almost two minutes after the robber[y].” (Appellant’s Br. at 7.) This assertion misstates the proper inquiry. Instead of asking whether Metzger could have expected events to unfold in precisely the way they did, we ask more broadly whether it was *1228 foreseeable that, given the inherently dangerous nature of bank robbery, a bystander might be seriously injured during the flight or apprehension of a perpetrator. It is plain that “[t]he violent nature of the offense of bank robbery carries with it the inherent prospect that someone could be injured in the robbery or its aftermath.” Passmore, 1998 WL 746866, at *1. In Passmore, on which both parties rely heavily, the court framed the foreseeability inquiry broadly: “It is plainly foreseeable that someone could be hurt during these events,” regardless of the precise manner of injury. Id. at *2; see also United States v. Boyd, 229 F.3d 1159, 2000 WL 772710, at *1 (9th Cir.2000) (“With regard to bodily injury, the Sentencing Guidelines application notes show that, as a general matter, injury to a victim during a bank robbery is foreseeable to the robber.”).

Moreover, Myers’s injury was not, as Metzger contends, beyond the “outer limits of foreseeability.” (Appellant’s Br. at 15.) In Passmore, 1998 WL 746866, at *2, a police officer’s injury from stumbling while exiting a car was described as “at the outer limits of foreseeability” only because of the peculiar way in which the specific injury occurred. In holding that the officer’s injury was foreseeable, the court stressed that “it should come as no surprise to Passmore that a police officer was hurt in the commotion at the close of [a] high speed chase” subsequent to a bank robbery. Id. In other words, an increased sentence is authorized where a defendant “put into motion a chain of events” with a “tragic result.” Molina, 106 F.3d at 1124-25 (internal quotations and citations omitted). The sentencing court was required under U.S.S.G. § 2B3.1(b)(3)(B) to hold Metzger responsible for the “chain of events” that he “put in motion” with his robbery. Id.

Because Metzger robbed a police credit union, it was foreseeable that a police officer conducting personal business at the bank might pursue Metzger. It was similarly foreseeable that, in a bank robbery, an officer might act on reports from witnesses without taking the time to verify the information.

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Bluebook (online)
233 F.3d 1226, 2000 Colo. J. C.A.R. 6409, 2000 U.S. App. LEXIS 29763, 2000 WL 1745153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-metzger-ca10-2000.