unless otherwise specified no five in three c one point two specifies otherwise and it articulates the standard a defendant is accountable for his own conduct and that which he a the driver is waiting outside after the robbery so this video is and his cohort go in and they go out and jump in the car and they go at least three miles before they jump out  flee and flight and causing a high speed chase that recklessly endangers others i point to the fact that three c one point one specifically excludes an obstruction hands meant based on flight or attempting to flee three c one point two adds the reckless endangerment element there's there's a line that it crosses certainly he intended to leave the scene of the robbery so in the end what we're talking about here is he got  he judge could not sentence for obstruction of justice i i am the abstract as i mentioned just a minute ago three c one point one is quite clear that flying from the scene of a crime is not  in an enhancement about his knowing a way out of a gun likewise three c one point one also excludes that unless it creates a material hindrance for law enforcement which there is no allegation of in this case yes that's absolutely correct and the judge can exercise it's question the problem here is certainly that we don't have the three step process was not followed correctly and the guidelines were not calculated correctly was i forget w exactly which is the incorrect standard as we just discussed no five sets out should be sent back for argument as to whether aiding abetting whether any of these apply or whether there was conduct that wasn't otherwise brought forth or is it your view the government had a bite at the apple and that's all they got that would certainly be my view in that they wouldn't have they should not have an opportunity to supplement the record the records quite bear as we know we know object to the application of the enhancement there was no discussion of application no five for the political billet of section one b one point three sco conspirator liability and i think the parties all proceeded under the assumption that foreseeability  point three does apply to section three c one point to enhance its but even if it doesn't in this case let's just assume it doesn't the record here is more than sufficient to find that this particular defendant aided and  we're not relying on that kind of a conley is very similar to this case but what the courts there observed is you have to look at the rarely are you going to have a situation where you have direct evidence that when he got into a car he said i'm driving away at a high rate of speed we're not going to statement about this in the commission's guidance is that it was intended to clarify the conduct that this reached and our position is they did not say we are restricted you are not permitted to use to apply coconspirator liability under one one the one point three b they they if they intended to take that drastic step was just to say in this situation particularly under three c one point one of struction where the it's not you're not in a coconspirator situation you have a third person you call your relative you call your friend you tell them to make the phone calls threatening the witness i think they're trying to emphasize bother even putting application of five in there your honor i don't have a clear cut answer to that i was suggesting that they added that in one thousand nine hundred two to both sections as a point of emphasis and clarity rather than a restriction when the not a restriction if what they're saying is that it applies in effect to aiding and abetting doesn't that clarify and therefore by implication it does not appl because it it it's identical to the language in the first part that that that an application of five is identical to the language in part a of one b one point three so yes it duplicate that that language in that particular guideline it doesn't necessarily restrict the application of section b which is coconspirator liability there may have been an assumption that was so well established at that point we don't there's not i was hoping to find a little more guidance from the commission but i couldn't find it and so we are left with what we have and our position is unless the clearly restricts the application of something as as you know just as universally applied as the coconspirator liability it's action that it shouldn't be read that way but more importantly in this cases we don't have to reach that issue because the conduct here of this defendant clearly first of all he planned the robbery he planned and this is this is not disputed plan the robbery he planned to use of a getaway car which included the use of a rental car which shows a consciousness wri correct under which he also designated the getaway driver he was something someone gets in the car and goes fifty miles an hour which is fast but perhaps not reckless nature and somebody gets in the congress eighty miles an hour how is he responsible he's responsible because he says he put this plan in motion he hires the getaway driver but the the getaway driver by its very definition is to get them away from the robbery scene so without getting they said that's insufficient we're not we're not faced with those facts here not only does he get no court he writes in a car for three miles it's my brutha do he's ok the driver is not if he disagrees with this course of conduct he could have could have taken his gun and should have pointed the driver's head and said stop most f one car and now this is exactly what the court found in calmly that's the driver to pull over at a much earlier part in the flight and get out of the car i suggest that it's odd that the reason that he got out of the car them was he realized they weren't going to outrun the police and then what does he do he gets out of the car he takes off on foot disagree that that the judge didn't consider it under this expressed the injured and you would like him to then th further their cause reckless and dangerous or supported because the facts are of record in the district court although it did not apply and aiding and abetting analysis he expressed lee indorse each one of those facts that i've just mentioned at various points in the opinion when he was talking about not about the enhanced minute self but when he was talking about the obstruction enhancement he noted that they left the scene at a high speed you know a first  bank and a getaway car signals not only in intent that they will take whatever action they need to avoid the police but it also that's it's a job description for a getaway driver to be willing to do just that but what you yes i believe that in that circumstance it should apply and it would be only it would be totally unfair to hold for example the getaway driver who's outside in a car responsible for the actions of his cohorts in the bank let's say the or liability test that same standard is nonsensical to say that that the person who just because they're not driving but they know that if getaway car is an integral part of the plan and that does render a melody really does what i think it renders it more there for emphasis in the rare situation and i will say it's a much less frequent situation but maybe courts would not think to apply it when let's say a bank robber fleeing from the scene of a bank robbery police are in pursuit he sees his friend or his cousin or as a relative you know in a car that's a faster car and he somehow or other prevails upon this person to get in his car and drive away he's not a co same application that was added to three c one point one in the obstruction context it's not usually the coconspirator who helps you obstruct it's usually your friends and relatives who are on the outside and they're helping you do that and i think it's there for a point of emphasis not as a no and continue with how is that any different from this i mean what this goes back is in the government going to make that argument and isn't that argument have a pretty darn good or at least a pretty decent chance of succeeding those cases have a bit of a different color to them only because you're talking about being in the course of an armed robbery i think there's a much greater likelihood that you know are in aware when you're planning the robbery that that's going to happen and that you intend that that's the way the robberies going to be carried out this  by a getaway car as he's facing the same situation that you're arguing right well and i think your honour's comment earlier is really made the point the way the government is arguing this is essentially a foreseeability test and the test is aiding and abetting and what the government's argument does is it creates a car enhanced rather than specifically intending and facilitating a high speed chase i mean there saying it's not the aiding and abetting of a crime it's the aiding and abetting of reckless endangerment exactly i mean the seriousness of an armed robbery it was certainly taken into account when the base offense level under chapter two was thought out and this this is a separate conduct i don't i don't i certainly don't think we can assume that every use of a car is going and in a high speed chase i think if the police are not following me i'm probably going to drive quickly but try to avoid  tension i mean putting that aside the reality is he was a willing passenger but there's no evidence that he intended for mr whitehurst drive that way or encouraged or facilitated it anyway and that's the standard that the guidelines lay out if i may just calmly quickly if your honour's would indulge me i think calmly is the reason why the case should not be remained is the case was clearly decided by on the planning and what this court needs to decide is whether planning an armed robbery and the use of a getaway car is sufficient none of the other cases support that position i would seek to limit calmly on the basis that the defendant did in fact say we were trying to  outrun the authorities but the facts are as they stand and it's at this point it's for this court to decide whether that would be sufficient as a matter of law and i submit that it doesn't have the adding in abetting