United States v. Reggs, No. 17-2133 (8th Cir. 2018)Annotate this Case
Reggs 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.