UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4781

CYNTHIA ANN PASSMORE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, District Judge.

(CR-97-55-F)

Argued: September 25, 1998

Decided: October 26, 1998

Before HAMILTON and MICHAEL, Circuit Judges, and

MOON, United States District Judge for the

Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Arthur Webb, Federal Public Defender, Raleigh,

North Carolina, for Appellant. John Samuel Bowler, Assistant United

States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:

Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,

North Carolina, for Appellant. Janice McKenzie Cole, United States

Attorney, Anne M. Hayes, Assistant United States Attorney, John
Howarth Bennett, Assistant United States Attorney, Raleigh, North

Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Cynthia Ann Passmore, a convicted bank robber, appeals the twopoint enhancement of her offense level as a result of bodily injury to

a victim, specifically, an injury to a state trooper who was hurt when

he fell at the end of the post-robbery chase. We affirm the sentence.

I.

Passmore, along with two accomplices, robbed a bank in Raleigh,

North Carolina. The robbers then led police on a 22-mile car chase

through Raleigh and into Chatham County, at speeds exceeding 100

miles per hour, before their getaway car became stuck in a construction area. As police officers approached the robbers' car, one of Passmore's accomplices, Robert Downey, pointed an airgun at them. The

officers opened fire, killing Downey instantly and wounding Passmore.

One of the pursuing police officers was injured at the end of the

chase. As the robbers' car landed in a ditch, State Trooper Scott

Pirilla jumped out of his police car and fell. He injured his head and

knee, necessitating hospital treatment. As a result of the injuries,

Trooper Pirilla missed three days of work, and he had to be assigned

to light duty for a week upon his return.

Passmore pleaded guilty to armed bank robbery and was sentenced

to 120 months imprisonment. In calculating her offense level, the district court applied a two-point increase for bodily injury sustained by

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a victim, pursuant to Sentencing Guideline § 2B3.1(b)(3). Passmore

challenges this enhancement, claiming that the officer was not a "victim" of her crime and that, even if he was, she did not cause his injuries.

II.

We first conclude that Trooper Pirilla was a victim of the bank robbery. The Sentencing Guidelines provide for an increase in offense

level if "any victim sustained bodily injury." U.S.S.G. § 2B3.1(b)(3).

The word "victim" has a fairly broad meaning in the bank robbery

context. Bank robbery involves active violence or threats of violence

and necessarily creates the risk of bodily injury to those in proximity.

United States v. Muhammad, 948 F.2d 1449, 1456 (6th Cir. 1991). Of

course, under a literal construction, only the banking institution itself

would be the victim of a bank robbery. But it is bank employees and

patrons who bear the initial brunt of a robbery. Furthermore, a robbery "cannot be completed without some form of flight or attempted

flight," so is "more naturally understood to include the act of fleeing

and the immediate consequences of such flight." Id. Therefore, the

term "any victim" in § 2B3.1(b)(3) includes "any employee,

bystander, customer, or police officer," id. , injured during a bank robbery or attempted getaway, whose injuries were caused by the robber.

We have previously held that a police officer was not a victim of

the charged offense when he was assaulted while arresting a suspect

for possession of a firearm by a convicted felon. United States v.

Morrow, 925 F.2d 779, 782 (4th Cir. 1991). However, the underlying

crime in Morrow was one of mere possession. The only direct victim

of such a crime is society as a whole. As the Sixth Circuit explained

in Muhammad, the term "victim" must be examined in the context of

the underlying charged offense. The violent nature of the offense of

bank robbery carries with it the inherent prospect that someone could

be injured in the robbery or its aftermath. The Guidelines account for

this, providing for an increase in offense level if"any victim" sustains

bodily injury. U.S.S.G. § 2B3.1(b)(3) (emphasis added). Under the

governing standards, the trooper here was a victim.

III.

Having established that Trooper Pirilla was a victim of the bank

robbery within the meaning of § 2B3.1(b)(3), we must determine if

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Passmore caused his injuries. The two-point increase in offense level

is only proper if her actions were the proximate cause of the injury.

United States v. Molina, 106 F.3d 1118, 1122-23 (2d Cir. 1997).

Passmore's conduct proximately caused Pirilla's injuries if the

harm was a reasonably foreseeable result of her conduct. Id. at 1121.

This requirement ensures that "any variation between the result

intended . . . and the result actually achieved is not so extraordinary

that it would be unfair to hold the defendant responsible for the actual

result." United States v. Spinney, 795 F.2d 1410, 1415 (9th Cir. 1986)

(quoting W. LaFave & A. Scott, Criminal Law § 35 (1972)). Even

accidental injuries may trigger a sentence increase if they are reasonably foreseeable. See, e.g., Molina, 106 F.3d at 1122-24 (bystander

accidentally shot by security guard during robbery); United States v.

Fitzwater, 896 F.2d 1009, 1012 (6th Cir. 1990) (bank teller hit head

on cash drawer after robber ordered her to lie on floor).

Again, Passmore led police on a 22-mile car chase along city

streets and highways at speeds of up to 110 miles per hour. At the

conclusion of the chase, one of her accomplices pointed an airgun at

the police, causing them to open fire. It is plainly foreseeable that

someone could be hurt during these events, whether from a car accident or from a mishap at the end as the police rushed on foot to capture the robbers. Although Trooper Pirilla's injuries (caused when he

stumbled as he jumped from his car) may be at the outer limits of

foreseeability, it should come as no surprise to Passmore that a police

officer was hurt in the commotion at the close of the high speed

chase. The facts are sufficient to support the finding that Passmore's

conduct was the proximate cause of Trooper Pirilla's injuries.

Passmore's sentence is affirmed.

AFFIRMED

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