United States v. Reggs, No. 17-2133 (8th Cir. 2018)
Annotate this CaseReggs and two others robbed a Minneapolis store, Reggs pleaded guilty to aiding and abetting a robbery that interfered with commerce and aiding and abetting the discharge of a firearm during that robbery. In calculating Reggs's sentence, the court increased his offense level by two levels, finding that Reggs "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer," USSG 3C1.2. The Eighth Circuit reversed. The PSR explains that shortly after receiving the report of the robbery, officers located the getaway car, shined a flashlight into the car, and ordered the occupants to put their hands up; Reggs's co-conspirator drove the car away with Reggs and the third co-conspirator as passengers. After crashing into a parked car, the co-conspirators fled on foot. His co-conspirators were apprehended after a short foot chase; Reggs escaped. Reggs was arrested days later. Even if the flight of the car "recklessly created a substantial risk of death or serious bodily injury," that does not mean that Reggs created the risk. Application Note 5 to the reckless-endangerment guideline specifies that "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 enhancement does not apply to the reasonably foreseeable acts of co-conspirators. Mere acquiescence is insufficient; there must be some evidence of direct or active participation.
Court Description: Arnold, Author, with Colloton and Shepherd, Circuit Judges] Criminal case - Sentencing Guidelines. The district court erred in imposing a two-level enhancement under Guidelines Sec. 3C1.2 based on its conclusion defendant recklessly created a substantial risk of death or serious injury during his flight from police; the record does not establish defendant aided, abetted, counseled, commanded, or induced the driver of their vehicle to flee; while flight might have been reasonably foreseeable under the circumstances, that is insufficient to warrant imposition of the enhancement; based on this record the court could not say defendant's flight on foot aided and abetted the flight of his co-conspirator; remanded for resentencing on the record already before the district court.
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