2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-21-2011

USA v. Dwayne Cespedes

Precedential or Non-Precedential: Precedential

Docket No. 10-3432

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________ 

No. 10-3432

_____________

 

UNITED STATES OF AMERICA

v.

DWAYNE CESPEDES,

Appellant 

_____________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 5-09-cr-00216-001)

District Judge: Honorable Lawrence F. Stengel

_____________ 

Argued November 16, 2011

Before: McKEE, Chief Judge, 

RENDELL and AMBRO, Circuit Judges

(Opinion Filed: December 21, 2011) 

_____________
2

Benjamin B. Cooper, Esq.

Office of Federal Public Defender

840 Hamilton Street

Suite 310, Butz Corporate Center

Allentown, PA 18101

David L. McColgin, Esq.

Nina C. Spizer, Esq.

Christy Unger, Esq. [ARGUED]

Defender Association of Philadelphia

Federal Court Division

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106 

 Counsel for Appellant

Bernadette A. McKeon, Esq. [ARGUED]

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

 Counsel for Appellee

_____________

OPINION OF THE COURT 

_____________

RENDELL, Circuit Judge.

This case requires us to determine the minimum 

conduct in which a defendant must engage in order to qualify 

for a two-level enhancement pursuant to Sentencing 

Guidelines § 3C1.2 (“§ 3C1.2”), for recklessly creating a 

substantial risk of death or serious bodily injury to another 
3

person in the course of fleeing from a law enforcement 

officer.

Defendant Dwayne Cespedes appeals the 144-month 

sentence he received after pleading guilty to armed robbery 

and related offenses. Specifically, Cespedes objects to the 

District Court’s enhancement of his sentence for recklessly 

endangering others while fleeing from law enforcement 

officers pursuant to § 3C1.2 based purely upon his 

participation in a conspiracy to commit armed robbery, when 

he was merely a passenger in the car which was being driven 

recklessly by his co-conspirator. Given the language of the 

relevant guideline provisions, we agree with Cespedes and 

will therefore remand for re-sentencing without the 

enhancement. 

I. Background

Cespedes and two confederates planned and executed 

an armed robbery of the KNBT Bank in Whitehall, 

Pennsylvania. Cespedes and one of his co-conspirators, 

Michael Grant, entered the bank armed with guns, while the 

other accomplice, Curtis Whitehurst, waited outside in a 

getaway car. 

While in the bank, Cespedes showed his weapon to the 

bank’s teller, stating “it is what it is,” as Grant opened the 

cash drawer and removed its contents. Cespedes then pointed 

the weapon at the teller and gave her thirty seconds to tell 

them where the rest of the bank’s money was located. The 

robbers then removed more money from the bank safe before 

exiting with $22,467 in cash.
4

Cespedes and Grant then entered the getaway car 

driven by Whitehurst. Rather than submit to an attempted 

traffic stop, Whitehurst engaged police in a high speed chase 

through residential neighborhoods that spanned two counties. 

Eventually, Cespedes and Grant got out and fled on foot, after 

which Whitehurst continued his reckless driving. Whitehurst 

ignored traffic laws, running stop signs and traveling in the 

wrong direction on certain roads. At one point during the 

chase, Whitehurst nearly struck innocent bystanders walking 

in a crosswalk. Eventually, Whitehurst collided with a parked 

minivan before being struck by a police cruiser while 

attempting to reverse.

Cespedes was apprehended after a short pursuit on 

foot. A gun was recovered under a trash can lid in the 

vicinity of where Cespedes fled. The bank teller later 

positively identified him as the robber who pointed a gun at 

her. 

A grand jury returned a three-count indictment against

Cespedes, charging him with the following offenses:

conspiracy to commit armed bank robbery, in violation of 18 

U.S.C. § 371; armed bank robbery, in violation of 18 U.S.C. § 

2113(d); and use of a firearm during and in relation to a crime 

of violence, in violation of 18 U.S.C. § 924(c)(1). Cespedes 

pleaded guilty to all three counts.

Consistent with the recommendation in Cespedes’

Presentence Investigation Report, the District Court applied a 

two-level enhancement for recklessly endangering others 

while fleeing from law enforcement officers pursuant to § 
5

3C1.2.1

 1 Section 3C1.2 provides: “If the defendant recklessly 

created a substantial risk of death or serious bodily injury to 

another person in the course of fleeing from a law 

 The District Court rejected Cespedes’ objection that 

the enhancement was improper because he never possessed 

enforcement officer, increase by 2 levels.”

With respect to the enhancement, the Presentence 

Investigation Report focused upon Whitehurst’s conduct 

during the high speed chase. The report contained the 

following justification for the enhancement:

The defendants led Whitehall 

Township Police Department on a 

high speed chase through a 

residential area of Whitehall, 

Pennsylvania, and ending in 

Allentown, Pennsylvania, during 

mid-morning hours. During this 

pursuit, Whitehurst ignored traffic 

laws, running stop signs and 

traveling in the wrong direction. 

In one instance, Whitehurst 

almost struck innocent bystanders 

crossing the road in the crosswalk. 

Whitehurst crashed the getaway 

vehicle into a parked minivan and, 

while attempting to reverse the 

vehicle, was struck by a police 

cruiser. This reckless conduct 

created a substantial risk of death 

or serious bodily injury to both 
6

any control over the recklessly driven getaway vehicle, and 

had exited on account of Whitehurst’s erratic driving. During 

the sentencing hearing, the District Court reasoned as follows:

There was a violation of traffic 

control devices before Mr. 

Cespedes got out. So, he may not 

have been in the car for the entire 

chase, but he certainly was there 

for part of it, and the chase really 

was a chase in furtherance of the 

conspiracy, and he is a 

conspirator. . . . I understand that 

he wasn’t driving the car, but he’s 

complicit in that. He’s as 

responsible as Mr. Whitehurst is 

because he is a co-conspirator.

J.A. 85-86. Application of the enhancement raised the

Guidelines range for Cespedes’ robbery counts from 41-51 

months to 51-63 months. When added to the mandatory 84-

month sentence for Cespedes’ firearm count, the 

enhancement resulted in a final Guidelines range of 135-147 

months. The District Court ultimately sentenced Cespedes to 

 

the law enforcement personnel 

involving the pursuit, as well as 

innocent (sic) bystanders along 

the route. Pursuant to U.S.S.G. § 

3C1.2, two levels are added to the 

offense level.

PSR ¶ 22.
7

144 months’ imprisonment, to be followed by five years’ 

supervised release.

The instant appeal followed.

II. Jurisdiction and Standard of Review

The District Court possessed jurisdiction pursuant to 

18 U.S.C. § 3231. We have jurisdiction pursuant to 28 

U.S.C. § 1291.

“When reviewing a sentence, an appellate court must 

ensure that the district court ‘committed no significant 

procedural error, such as failing to calculate (or improperly 

calculating) the Guidelines range.’” United States v. Aquino, 

555 F.3d 124, 127 (3d Cir. 2009) (quoting Gall v. United 

States, 552 U.S. 38, 51 (2007)). “We review the District 

Court’s interpretation of the Sentencing Guidelines de novo, 

and scrutinize any findings of fact for clear error.” Id.

(internal citations omitted).

III. Discussion

Cespedes presents a two-step argument as to why the 

District Court erred by enhancing his sentence pursuant to § 

3C1.2. First, Cespedes argues that the general conduct 

provision in Guidelines § 1B1.3(a)(1)(B) (“§ 

1B1.3(a)(1)(B)”), which permits sentences to be enhanced 

based upon the reasonably foreseeable acts of others, does not 

apply to § 3C1.2. Second, Cespedes argues that Application 

Note 5 (“Note 5”) to § 3C1.2 required the Government to 

prove that he “aided[,] abetted, counseled, commanded, 

induced, procured, or willfully caused” Whitehurst’s reckless 
8

driving, which it failed to do. We will consider each of these 

arguments in turn.

A.

As a general matter, the Sentencing Guidelines permit 

a defendant’s sentence to be enhanced based not only upon 

his own conduct, but also upon the conduct of his criminal 

confederates. Specifically, § 1B1.3(a) states:

Unless otherwise specified, . . .

adjustments in Chapter Three . . .

shall be determined on the basis 

of the following: (1)(A) all acts 

and omissions committed, aided, 

abetted, counseled, commanded, 

induced, procured, or willfully 

caused by the defendant; and (B) 

in the case of a jointly undertaken 

criminal activity (a criminal plan, 

scheme, endeavor, or enterprise 

undertaken by the defendant in 

concert with others, whether or 

not charged as a conspiracy), all 

reasonably foreseeable acts and 

omissions of others in furtherance 

of the jointly undertaken criminal 

activity, that occurred during the 

commission of the offense of 

conviction, in preparation for that 

offense, or in the course of 

attempting to avoid detection or 

responsibility for that offense[.]
9

U.S.S.G. § 1B1.3(a) (emphasis added). By including the 

phrase “unless otherwise specified,” the relevant conduct 

provision admits of exceptions to application of § 

1B1.3(a)(1)(B)’s reasonable foreseeability test in certain 

instances. Cespedes contends that § 3C1.2 is one such 

instance. 

Pursuant to § 3C1.2, a defendant’s sentence can be 

increased two levels “[i]f the defendant recklessly created a 

substantial risk of death or serious bodily injury to another 

person in the course of fleeing from a law enforcement

officer.” U.S.S.G. § 3C1.2. Note 5 to § 3C1.2 provides the 

following commentary: 

Under this section, 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. 

Id. at cmt. n.5 (emphasis added). The question, then, is 

whether, by specifically describing when a defendant can be 

held responsible for reckless endangerment caused by another

during flight based upon something other than reasonable 

foreseeability, § 3C1.2 “specifies otherwise” such that § 

1B1.3(a)(1)(B) does not apply.

Note 5 makes clear that, to qualify for an enhancement 

under § 3C1.2, a defendant must have either himself 

recklessly endangered others, or “aided[,] abetted, counseled, 

commanded, induced, procured, or willfully caused” 

another’s reckless endangerment of others. It therefore 
10

specifically describes the conduct that will render a defendant

responsible for another’s recklessness during flight from law 

enforcement. See United States v. Chong, 285 F.3d 343, 346 

(4th Cir. 2002). Although set forth in commentary to § 

3C1.2, we must consider Note 5 authoritative “unless it 

violates the Constitution or a federal statute, or is inconsistent 

with, or a plainly erroneous reading of, that guideline.” Id. at 

345-46 (citing Stinson v. United States, 508 U.S. 36, 38 

(1993)). Application of a § 3C1.2 enhancement based upon 

the reasonable foreseeability of a confederate’s reckless

endangerment during flight – using the generally applicable 

standard of § 1B1.3(a)(1)(B) – runs afoul of Note 5’s

limitation by enhancing a defendant’s sentencing without him 

having engaged in the specific conduct set forth with respect

to the reckless endangerment.

2

 2 Further militating in favor of our interpretation is the

companion sub-section of § 1B1.3(a)(1). Section 

1B1.3(a)(1)(A) allows enhancements to be “determined on 

the basis of . . . all acts and omissions committed, aided, 

abetted, counseled, commanded, induced, procured, or 

willfully caused by the defendant.” U.S.S.G. § 

1B1.3(a)(1)(A) (emphasis added). Absent Note 5, then, a 

defendant’s sentence could still be enhanced pursuant to § 

3C1.2 if he “aided, abetted, counseled, commanded, induced, 

procured, or willfully caused” an accomplice’s reckless 

endangerment of others during flight. Note 5 would therefore 

be unnecessary if not meant to cabin the circumstances in 

which a defendant’s sentence may be enhanced based upon 

the recklessness of another by preventing application of § 

1B1.3(a)(1)(B). The contrary interpretation urged by the 

Government – that Note 5 was included in § 3C1.2 merely for 

emphasis and not for any substantive purpose – would render 

 
11

Accordingly, we join all of our sister circuit courts of 

appeals that have considered this issue in reasoning that 

“some form of direct or active participation which is 

consistent with . . . Note [5] is necessary in order for § 3C1.2 

to apply.” United v. Cook, 181 F.3d 1232, 1235 (11th Cir. 

1999); see also Chong, 285 F.3d at 346; United States v. 

Conley, 131 F.3d 1387, 1390-91 (10th Cir. 1997); United 

States v. Lipsey, 62 F.3d 1134, 1136-37 (9th Cir. 1995). 

“Thus, in the case of a defendant who was a passenger during

a flight from police, a district court ‘must specify in the 

record its reasons for holding [that defendant] responsible for 

the driver’s conduct.’” United States v. Wilfong, 475 F.3d

 

Note 5 a mere nullity. See United States v. Cook, 181 F.3d 

1232, 1236 (11th Cir. 1999).

The Government contends that Illustration (b)(1) to § 

1B1.3 supports finding that § 1B1.3(a)(1)(B) applies to the 

reckless-endangerment-during-flight enhancement. The 

illustration makes a getaway driver in an armed bank robbery 

accountable for injuries caused by his co-conspirators during 

the robbery. See U.S.S.G. § 1B1.3 cmt. 2. The Government 

suggests that “it would be anomalous to hold a participant in a 

robbery liable for an accomplice’s assault on a teller, but 

create a different rule for an accomplice’s reckless 

endangerment of others during flight, which poses exactly the 

same danger of bodily injury to innocent persons.” Appellee 

Br. at 17. We disagree. The illustration merely demonstrates 

how the reasonable foreseeability analysis operates when the 

relevant conduct provision in § 1B1.3(a)(1)(B) applies. It is 

not at all instructive with respect to the predicate question of 

which enhancements § 1B1.3(a)(1)(B) applies to, which is the 

issue here considered. See Cook, 181 F.3d at 1236 n.1.
12

1214, 1220 (10th Cir. 2007) (alteration in original) (quoting 

United States v. Young, 33 F.3d 31, 33 (9th Cir. 1994)).

Here, the District Court relied upon Cespedes’ 

participation in a conspiracy with the reckless getaway driver

to enhance his sentence pursuant to § 3C1.2, stating, “He’s as 

responsible as Mr. Whitehurst is because he is a coconspirator.” J.A. 86. The conclusion that a § 3C1.2 

enhancement is proper based solely upon a defendant’s entry 

into a conspiracy is inadequate because it does not indicate 

how that defendant “aided[,] abetted, counseled, commanded, 

induced, procured, or willfully caused” the recklessness upon 

which the enhancement is predicated. See Lipsey, 62 F.3d at 

1136 (deeming the “community of interest among all three 

defendants in the car to escape” insufficient to justify 

application of § 3C1.2).

In effect, the District Court enhanced Cespedes’ 

sentence based upon the mere foreseeability of Whitehurst’s 

reckless driving.

3

B.

Pursuant to Note 5, though, the fact that the

reckless driving may have been reasonably foreseeable is not 

determinative. Therefore, the basis upon which the District 

Court applied § 3C1.2 to Cespedes’ sentence was insufficient 

as a matter of law.

The Government urges that evidence introduced 

against Cespedes, along with findings in unrelated portions of 

the sentencing record, suggest that the District Court properly 

 3 Indeed, the Government acknowledges in its brief 

that “part of the district court’s remarks focused on the 

reasonable foreseeability test.” Appellee Br. at 18.
13

applied § 3C1.2, even in light of Note 5. However, our 

consideration of the record as a whole demonstrates that 

Cespedes’ conduct did not qualify him for the recklessendangerment-during-flight enhancement, as interpreted 

above.

The proof to which the Government points as 

demonstrating that Cespedes was responsible for

Whitehurst’s recklessness primarily relates to the level of 

planning involved in his offense. The only evidence specific 

to Cespedes’ role in planning the crime was that he learned 

when best to commit the robbery from a former bank 

employee with whom he was acquainted. J.A. 113. That by 

itself, however, is inadequate to justify a § 3C1.2 

enhancement because it does not relate at all to Cespedes’ 

responsibility for Whitehurst’s recklessness during the

getaway. Indeed, the only proof as to how the conspirators 

prepared for the getaway made clear that Whitehurst obtained 

the vehicle used to flee the scene from a friend who rented it 

several days before the robbery. PSR ¶ 11. Cespedes’ role in 

planning the robbery, without more, does not render him 

accountable for the reckless endangerment of others caused 

by Whitehurst’s reckless driving.

Observations made by the District Court, which the 

Government argues further support upholding application of 

the enhancement to Cespedes, suffer from a similar infirmity

and do nothing to bolster its position. The District Court 

explained its determination that Cespedes’ offense was 

particularly disturbing by emphasizing “the circumstances 

before in planning this, getting the guns, [and] getting the 

car,” as well as the “foot pursuit” that occurred after Cespedes 

“asked to get out of the car.” J.A. 113-114. Again, though, 

these findings do not demonstrate anything about Cespedes’ 
14

conduct that would show that he “aided[,] abetted, counseled, 

commanded, induced, procured, or willfully caused” 

Whitehurst’s reckless endangerment of others during flight 

from the police. Since there is no evidence of any such 

conduct here, the enhancement does not apply by its terms.

Proof indicating only that conspirators collectively 

planned a robbery that led to a high speed chase is inadequate

to qualify each passenger in the getaway vehicle for a 

reckless-endangerment-during-flight enhancement. See, e.g.,

United States v. Franklin, 321 F.3d 1231, 1236-37 (9th Cir. 

2003) (finding that inclusion of getaway cars as part of 

robbery plan does not demonstrate a defendant’s 

responsibility for reckless endangerment). Therefore, 

because the evidence and findings as to Cespedes’ 

involvement in the reckless getaway lacked specificity as to 

what rendered him responsible for Whitehurst’s reckless 

driving, we hold that the Government did not satisfy its 

burden of proving him subject to § 3C1.2, i.e., it did not show 

that Cespedes’ conduct constituted a “form of direct or active 

participation which is consistent with . . . Note [5].” Cook, 

181 F.3d at 1235.

“[W]here the government has the burden of production 

and persuasion as it does on issues like enhancement of the 

offense level . . . , its case should ordinarily have to stand or 

fall on the record it makes the first time around [and it]

should not normally be afforded a second bite at the apple.” 

United States v. Dickler, 64 F.3d 818, 832 (3d Cir. 1995) 

(citation and internal quotation marks omitted). Therefore, 

our conclusion prohibits application of the recklessendangerment-during-flight enhancement to Cespedes’ 

sentence upon resentencing by the District Court.
15

IV. Conclusion

In sum, the evidence and the form of the District 

Court’s findings make it evident that Cespedes’ sentence was 

erroneously enhanced pursuant to § 3C1.2. We therefore 

vacate the sentence and remand to the District Court for 

resentencing without the enhancement.