* After examining the briefs and appellate record, this panel has

determined unanimously to honor the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 28 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JACK EUGENE METZGER, JR., Defendant - Appellant. No. 00-5055

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 99-CR-138-C)

Submitted on the briefs: * Stephen J. Knorr, Federal Public Defender, Tulsa, O klahoma, for DefendantAppellant. Stephen C. Lewis, United States Attorney, and ScottWoodward, Assistant U.S. Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.

Before BALDOCK , HENRY and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.- 2 -

We consider whether a “bodily injury” enhancement m ay be applied pursuant to United States Sentencing Guidelines § 2 B3.1(b)(3)(B) to increase a defendant’s sentence where the relevant injury was inflicted by a police officer. Exercising jurisdiction pursuant to 28 U.S.C. § 129 1 and 18 U.S.C. § 3742(a), we conclude that a sentence enhancement under these ci rcumstances is appropriate.
I Defendant-appellant Jack Eugene Metzger, Jr. was co nvicted of robbing a police credit union in Tulsa, Oklahoma in violation of 18 U.S.C. § 2113(a). On appeal, Metzger argues that the district court impr operly enhanced his sentence by four levels under U.S.S.G. § 2B3.1(b)(3)(B) for causing serious bodily injury to a victim. On August 31, 1999, Metzger entered the Fraternal O rder of Police Credit Union and handed a teller a note that read: “[G]ive me your money, no dye pack or I will be back. Thank you.” (II R. at 4.) Sho rtly after Metzger received $865 from the teller and left the bank, a uniformed poli ce officer, L.L. Edwards, who was transacting personal business in the bank, lear ned of the robbery. Having been mistakenly told that the perpetrator was still in the parking lot in a blue vehicle, Edwards went out to the parking lot and ap proached a blue car with a single occupant. When the driver began to reach fo r the floor of the car and then to drive away, Edwards, believing the driver was re aching for a gun, fired a shot1 Metzger does not dispute that Myers was a “victim ” of the robbery for

the purposes of U.S.S.G. § 2B3.1(b)(3)(B). He likewise concedes that she suffered “serious bodily injury” as contemplated bythat provision. - 3 - at the car. His shot hit Jamie Myers, a bank custo mer and innocent bystander, in the shoulder. Meanwhile, Metzger had pedaled away on a bicycle.
II Because the facts of Metzger’s underlying convictio n are undisputed, we review the district court’s application of § 2B3.1( b)(3)(B) of the Sentencing Guidelines de novo. See United States v. Fisher , 132 F.3d 1327, 1328 (10th Cir. 1997). U.S.S.G. § 2B3.1(b)(3)(B) requires a senten cing court to “increase the offense level” by four levels if “any victim” susta ined “serious bodily injury.” Metzger contends that a four-level enhancement for Myers’s injury was improper because her injury was not a reasonably foreseeable result of his criminal conduct. 1 Pursuant to U.S.S.G. §§ 1B1.3(a)(1)(A) and (a)(3), Myers’s injury is attributable to Metzger’s conduct if it is “harm th at resulted from the acts and omissions” that were “committed, . . . induced, pro cured, or willfully caused” by Metzger. Courts interpreting the “resulted from” l anguage of U.S.S.G. § 1B1.3(a)(3) have allowed increased sentences for harms that were a “reasonably foreseeable” consequence of a defendant ’s conduct. United States v. Molina , 106 F.3d 1118, 1124-25 (2d Cir. 1997) (upholding a U.S.S.G.- 4 -

§ 2B3.1(b)(3)(B) enhancement because the shooting of a bystander by a security guard was “reasonably foreseeable” pursuant to U.S. S.G. § 1B1.3(a)(3)); see also United States v. Passmore , No. 97-4781, 1998 WL 746866, at *2 (4th Cir. Oct. 26, 1998) (upholding a U.S.S.G. § 2B3.1(b)(3)(A) en hancement because a policeman’s injury was “reasonably foreseeable” to the defendant); United States v. Fitzwater , 896 F.2d 1009, 1012 (6th Cir. 1990) (upholding a U.S.S.G. § 2B3.1(b)(3)(A) enhancement because an injury to a b ank teller during a robbery was “reasonably foreseeable”); cf. United States v. Walls , 80 F.3d 238, 241-42 (7th Cir. 1996) (upholding an upward departure purs uant to U.S.S.G. § 2K2.1 where a bystander’s death was “a foreseeable risk” of the defendant’s conduct); United States v. Salazar-Villarreal , 872 F.2d 121, 123 (5th Cir. 1989) (upholding an upward departure pursuant to U.S.S.G. §§ 5K2.1 and 5K2.2 where the defendant’s “reckless” flight to avoid capture fore seeably resulted in the accidental death of aliens hiding in defendant’s ve hicle). Metzger argues that no one reasonably could have expected an unarmed bank robbery and successful getaway would end in th e injury of an innocent bystander at the hands of “an off-duty police offic er . . . almost two minutes after the robber[y].” (Appellant’s Br. at 7.) This asse rtion misstates the proper inquiry. Instead of asking whether Metzger could h ave expected events to unfold in precisely the way they did, we ask more broadly whether it was foreseeable- 5 -

that, given the inherently dangerous nature of bankrobbery, a bystander might be seriously injured during the flight or apprehension of a perpetrator. It is plain that “[t]he violent nature of the offense of bank r obbery carries with it the inherent prospect that someone could be injured in the robbery or its aftermath.”
Passmore , 1998 WL 746866, at *1. In Passmore , on which both parties rely heavily, the court framed the foreseeability inquiry broadly: “It is plainly foreseeable that someone could be hurt during these events,” regardless of the precise manner of injury. Id. at *2; see also United States v. Boyd , No. 99- 50165, 2000 WL 772710, at *1 (9th Cir. June 14, 200 0) (“With regard to bodily injury, the Sentencing Guidelines application notes show that, as a general matter, injury to a victim during a bank robbery is foreseeable to the robber.”). Moreover, Myers’s injury was not, as Metzger conten ds, beyond the “outer limits of foreseeability.” (Appellant’s Br. at 15. ) In Passmore , 1998 WL 746866, at *2, a police officer’s injury from stumb ling while exiting a car was described as “at the outer limits of foreseeability ” only because of the peculiar way in which the specific injury occurred. In hold ing that the officer’s injury was foreseeable, the court stressed that “it should come as no surprise to Passmore that a police officer was hurt in the comm otion at the close of [a] high speed chase” subsequent to a bank robbery. Id. In other words, an increased sentence is authorized where a defendant “put into motion a chain of events”- 6 -

with a “tragic result.” Molina , 106 F.3d at 1124-25 (internal quotations and citations omitted). The sentencing court was requi red under U.S.S.G. § 2B3.1(b)(3)(B) to hold Metzger responsible for the “chain of events” that he “put in motion” with his robbery. Id. Because Metzger robbed a police credit union, it wa s foreseeable that a police officer conducting personal business at the bank might pursue Metzger. It was similarly foreseeable that, in a bank robbery, an officer might act on reports from witnesses without taking the time to verify th e information. Contrary to Metzger’s argument, the fact that he did not use a weapon in the robbery does not remove the use of force by a pursuing police office r from the realm of foreseeability. Not only is a bank robbery inheren tly threatening, but Metzger’s note explicitly threatened retaliation, making it r easonably foreseeable that a police officer might feel the need to use force to apprehend a fleeing robber and that bystanders could be injured in the process. Metzger’s contention that Myers’s injury occurred n inety seconds after the robbery was “over” is unavailing. (Appellant’s Br. at 12.) Flight and pursuit are links in the “chain of events” set in motion by a b ank robbery, Molina , 106 F.3d at 1124 (internal quotation omitted), and an offend er assumes their consequences when he undertakes the robbery of a bank, see United States v. Mendola , 807 F. Supp. 1063, 1066-67 (S.D.N.Y. 1992) (“Absconding wi th the money is a natural- 7 -

and expected part of the crime” of bank robbery, an d “[e]very . . . bank robber knows . . . that others may be injured in [the cour se of the robber’s] flight . . . .”);
Passmore , 1998 WL 746866, at *1 (“[A] robbery ‘cannot be co mpleted without some form of flight or attempted flight,’ so robbery is ‘more naturally understood to include the act of fleeing and the immediate con sequences of such flight.’” (quoting United States v. Muhammad , 948 F.2d 1449, 1456 (6th Cir. 1991))). A robber may thus be held accountable, for example, f or an injury to a victim by a responding police officer even after the robber has driven blocks away toward his home. See Molina , 106 F.3d at 1120. While Metzger claims that prior cases have allowed the “serious bodily injury” sentence enhancement only in situations inv olving defendants’ or their co-conspirators’ use of firearms or “hot pursuit” b y police (Appellant’s Br. at 7, 12-15), he cites no precedents limiting its application to those circumstances or reversing a “bodily injury” enhancement for lack of foreseeability. A party must support its argument with legal authority, see Phillips v. Calhoun , 956 F.2d 949, 953 (10th Cir. 1992), and Metzger has failed to do so here. In fact, at least one court has held that an enhancement pursuant to § 2B 3.1(b)(3)(B) was warranted for the injury of an innocent bystander even if the bullet which hit the victim came from a security guard’s weapon. See Molina , 106 F.3d at 1123-25. We hold that Myers’s injury was a reasonably foreseeab le result of Metzger’s- 8 -

criminal conduct and that the U.S.S.G. § 2B3.1(b)(3 )(B) sentence enhancement
was proper. III The judgment of the district court is AFFIRMED

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