United States of America, Plaintiff-appellee, v. Ramon v. X Morris, Defendant-appellant, 956 F.2d 279 (10th Cir. 1992)

Defendant Ramon V. X Morris appeals enhancement of his sentence based on the conduct of his codefendant. The issue is whether, under U.S.S.G. § 1B1.3, Defendant could have reasonably foreseen the codefendant's conduct. The district court found that the conduct was reasonably foreseeable, and we affirm.¹ 

Defendant pled guilty to the charge of robbery in violation of 18 U.S.C. §§ 2, 2111. Pursuant to a plan between Defendant and an acquaintance, Dana McCoy, Defendant met McCoy behind the gas station at which Defendant worked after it closed for the day. There, Defendant allowed McCoy to bind his hands and gag him with tape. Defendant and McCoy then entered the gas station with Defendant feigning to be McCoy's hostage. The station manager was counting the day's cash receipts in a back room. McCoy made a loud noise in the front of the station, and when the manager came out to investigate, McCoy knocked the manager to the floor abrading the manager's head, brandished a knife and threatened the manager, bound the manager's hands with handcuffs, and gagged him with tape. After McCoy took the cash receipts and left the station, the manager righted himself and activated a burglar alarm. The scheme was discovered, and both Defendant and McCoy pled guilty to the charges against them.

The presentence report prepared for Defendant recommended three separate enhancements to his sentence, all pursuant to U.S.S.G. § 1B1.3:² a three-level enhancement under U.S.S.G. § 2B3.1(b) (2) (C) for McCoy's brandishing of the knife, a two-level enhancement under section 2B3.1(b) (3) for the physical injury to the station manager, and a two-level enhancement under section 2B3.1(b) (4) (B) for physically restraining the manager.

Defendant objected to the enhancements, arguing that under the plan devised by Defendant and McCoy, Defendant was to pretend to be a hostage and that the station manager, based on that circumstance, would simply turn over the cash. Defendant claimed that McCoy was departing from their plan by brandishing the knife and by shoving, hurting, and restraining the station manager. The district court found that McCoy's conduct was reasonably foreseeable to Defendant and held that the enhancements outlined in the presentence report were proper. R.Vol. III p 91.

Application note 1 to U.S.S.G. § 1B1.3 specifies that our review of this issue encompasses three inquiries:

(1) [W]hether [Defendant] was involved in criminal activity undertaken in concert with others; (2) whether [McCoy's conduct of brandishing the knife, injuring the station manager, and restraining the station manager] was "conduct in furtherance of the jointly undertaken criminal activity"; and (3) whether that conduct was "reasonably foreseeable" by [Defendant].

United States v. Barragan, 915 F.2d 1174, 1179 (8th Cir. 1990); see also United States v. McFarlane, 933 F.2d 898, 899 (10th Cir. 1991) (applying the requirements of foreseeability and conduct in furtherance of or during the course of the crime); United States v. Aquilera-Zapata, 901 F.2d 1209, 1213-15 (5th Cir. 1990) (same); United States v. White, 875 F.2d 427, 433 (4th Cir. 1989) (same).³ 

Defendant does not dispute that he was involved in the robbery in concert with McCoy or that McCoy's objectionable conduct was in furtherance of that jointly undertaken robbery. His objection is that he could not reasonably foresee the objectionable conduct because it deviated from the plan he and McCoy prepared, contradicting McCoy's version of the scheme to law enforcement officers and the probation officer who prepared the presentence report. Because Defendant testified in person before the sentencing court, R.Vol. II (Transcript of hearing), the sentencing court was able to make a credibility determination about Defendant's version of the plan and about Defendant's capability of foreseeing McCoy's violent behavior.⁴ 

We review the sentencing court's factual determinations under a clearly erroneous standard, giving "due regard" to that court's decisions about the credibility of witnesses. United States v. Fitzwater, 896 F.2d 1009, 1012 (6th Cir. 1990); 18 U.S.C. § 3742(d). After review of the presentence report and the transcript of the hearing at which Defendant testified, we hold that the district did not err in its determination that McCoy's conduct during the robbery was reasonably foreseeable to Defendant.

The order of the District Court for the District of Kansas enhancing Defendant's sentence based on the conduct of his codefendant is AFFIRMED. The mandate shall issue forthwith.