In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1353

United States of America,

Plaintiff-Appellee,

v.

Nekis Atwater,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 00 CR 107--S. Hugh Dillin, Judge.

Argued October 29, 2001--Decided November 29, 2001

 Before Flaum, Chief Judge, and Posner and

Diane P. Wood, Circuit Judges.

 Posner, Circuit Judge. At sentencing

after his plea of guilty to bank robbery,

the defendant, Atwater, was given a fivelevel boost in his sentence on the ground

that he knew or should have known that a

firearm would be used in the robbery.

Atwater’s codefendant, Cagle, was the one

who had actually entered the bank and

brandished a gun, but he claimed that he

and Atwater had planned the robbery

together and indeed that Atwater had

supplied the gun. Atwater admitted that

he had driven Cagle to and from the bank

but denied that he had supplied the gun

or knew that Cagle had one and planned to

use it in the robbery. U.S.S.G. sec.

2B3.1(b)(2)(C) imposes a five-level

enhancement for use of a gun during a

bank robbery and U.S.S.G. sec.

1B1.3(a)(1)(B) makes a defendant

accountable for all "reasonably

foreseeable" acts and omissions of others

in furtherance of a jointly undertaken

criminal activity. If Atwater knew that

Cagle planned to use a gun in the

robbery, then obviously that use was

"reasonably foreseeable" by him, was in

fact actually foreseen. And even if he

didn’t know, it might still have been

reasonably foreseeable by him.

 On these vital questions (what he knew
and what he should have known), all the

sentencing judge said was that Atwater

"either knew or should have known that a

firearm would be involved in this case. I

have never heard of a bank robbery

without a firearm. That is sort of a

given. And there is testimony from more

than one person that a firearm was

involved here." We have italicized the

key sentence in the judge’s statement--

the only reason he gave for thinking that

Atwater either knew or should have known

that Cagle had a gun: namely that all

bank robberies are committed with a gun.

But that is false. Although the

government’s lawyer could not furnish us

with any statistics, a call to his

employer, the Department of Justice,

produced the following FBI statistics for

1999: of the 6,599 robberies that year of

banks and related financial institutions,

firearms were used in only 1,988, which

is 30 percent; and--confirming our own

impression that many bank robberies are

committed by unarmed persons who hand

threatening notes to tellers--3,590 of

the robberies were indeed committed by

note. Federal Bureau of Investigation,

Bank Crime Statistics Jan. 1-Dec. 31,

1999, 1, 4 (2000).

 If all bank robberies were committed

with the aid of a gun, then Atwater

should have foreseen that Cagle would use

one. But since fewer than a third are, a

more discriminating analysis was called

for, the sort of thing we find in United

States v. Dixon, 982 F.2d 116, 120 (3d

Cir. 1992), where the court found that

"Stephanie Fletcher’s conduct in

pretending to brandish a gun was both in

furtherance of the robbery and reasonably

foreseeable by Dixon [the defendant]. Her

act of pretending to have a gun

facilitated commission of the bank

robbery, and Dixon planned and

masterminded that robbery. He gave

explicit and detailed instructions to

Stephanie and John Fletcher concerning

its commission, he waited in the get-away

car he had provided and he also provided

all of the clothes and paraphernalia

Stephanie and John used during the

robbery. Considering Dixon’s experience

with offenses of this nature, as shown by

his criminal history enhancement, and the

characteristics of a robbery by force, in

the old style, vi et armis, lead us to

the conclusion that Fletcher’s act was

attributable to Dixon as a matter of
law." Cf. United States v. Williams, 176

F.3d 301, 307 (6th Cir. 1999); United

States v. Soto, 959 F.2d 1181, 1187 (2d

Cir. 1992). Even in United States v.

Burton, 126 F.3d 666, 679 (5th Cir.

1997), where the analysis is perfunctory,

the court was satisfied that the district

judge had not committed a clear error in

inferring foreseeability from the general

character of bank robbery.

 The judge’s reasoning process in the

present case is unclear. Cagle had said

that Atwater had supplied the gun, and

the judge could have chosen to believe

him rather than Atwater. But we cannot

tell whether he did believe Cagle. He

gave Atwater a sentencing discount for

acceptance of responsibility, which he

would not, or at least should not, have

done if he thought Atwater was lying in

denying that he had furnished Cagle with

the gun or even knew Cagle was planning

to use a gun in the robbery. U.S.S.G.

sec. 3E1.1, Application Note 1(a); United

States v. Brack, 188 F.3d 748, 767 (7th

Cir. 1999). Although some cases say,

rather in the teeth of the wording of the

application note, that a lie about

relevant conduct is not an absolute bar

to an acceptance of responsibility

discount, United States v. Forte, 81 F.3d

215, 218 (D.C. Cir. 1996); United States

v. Patron-Montano, 223 F.3d 1184, 1190-91

(10th Cir. 2000), the presumption that it

is a bar is strong and the circumstances

would have to be extraordinary to rebut

it, as the court in Patron-Montano

acknowledged. Id.; see also United States

v. Sayetsitty, 107 F.3d 1405, 1410 (9th

Cir. 1997). There was no rebuttal here.

Atwater’s lie, if it was a lie, went to

the heart of his criminal conduct.

 The line between what is actually

foreseen and what is reasonably

foreseeable is the line between what the

defendant knew and what he should have

known. United States v. LaCroix, 28 F.3d

223, 229 (1st Cir. 1994). And what he

should have known was anything that was

probable, because probability is the

operational meaning of foreseeability.

Id. at 229; Beul v. ASSE International,

Inc., 233 F.3d 441, 447 (7th Cir. 2000);

S.A. Healy Co. v. Milwaukee Metropolitan

Sewerage District, 50 F.3d 476, 480-81

(7th Cir. 1995); Reardon v. Peoria &

Pekin Union Ry., 26 F.3d 52, 53 (7th Cir.

1994) ("to say that an injury is not
’foreseeable’ is simply to say that the

probability of loss is low"); Richard A.

Epstein, Torts 269 (1999). The

government’s lawyer even conceded at

argument that the practical meaning of

foreseeable is probable. But how

probable? In ordinary language, only lowprobability events are described as

unforeseeable. Supposing you closed your

eyes before crossing a busy street, the

chance of your being hit if you crossed

it just once in this way might well not

exceed 30 percent, because cars would

swerve to avoid hitting you; if you were

hit, however, anyone would say that it

was a foreseeable consequence of your

having closed your eyes. A substantial

fraction of bank robberies do involve the

use of a gun, so unless Atwater had some

special reason to think Cagle wasn’t

going to use a gun, that use may well

have been reasonably foreseeable to

Atwater. But that was a judgment to be

made by the sentencing judge in the first

instance, on the basis of a correct

understanding of all the pertinent facts.

The 30 percent figure that we derive from

FBI statistics abstracts from all the

particulars of the individual case. Those

particulars might make the probability of

the accomplice’s using a gun much higher

or much lower. As no evidence was put

before the sentencing judge in this case

of how frequently guns are used in bank

robberies and he greatly exaggerated that

frequency and having done so neglected

the particulars of the case, his judgment

cannot be upheld. Atwater’s sentence is

vacated and the case is remanded for

resentencing by a different judge.