* The Hon or ab l e J oh n T. Nixon, Unit ed States Distr ict Judge for the

Midd le Distri ct of Tennessee, sit ting by designat ion. 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2004 FED App . 0274P (6th C ir.) File Name: 04a02 74p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.
J AMES S AMU EL H ILL , Defenda nt-Appel

lant. X - - - -> , - - N No. 03-5138

Appeal from the United States District Court for the We stern Dis trict of T ennesse e at Memphis. No. 02-20028—Julia S. Gibbons, District Judge.

Argued: June 10, 2004 Decided and Filed: August 20, 2004
Befor e: MERRI TT and DA

UGHTREY , Circuit Jud

ges; NIXON, District Judge. *

_________________ COUNSEL
ARGUED: Ne ed um L. G er ma ny, OF FICE OF THE FEDERAL

PUBL IC DEFENDER F OR THE WESTE RN 2 United Sta tes v. Hil l No. 03-5138

DIST RICT OF TENNESSEE, Memphis, Tennessee, for Appellan t. Tony R. Arvin, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, fo r Appelle e

. ON BRIE F: Randolph W. Alden, OFFICE OF TH E FEDERAL

PUBL IC DEFENDER F OR THE WESTE RN DIST RICT

O F TENNESSEE, Memphis, Tennessee, for Appellan t. Tony R. Arvin, ASSISTANT UNI TED STATES ATTORNEY, Memphis, Tennessee, for Appellee.

_________________ OPINION

_________________ MERRITT, Circuit Judge. The defendant in this case pled guilty to bank robbery . Du ring t hat robbery the defendant was shottwice by a se curity g uard. The sole issue on appeal is whether the district court should not have g ive n him a seven-level sentenc e enhancement f orthe discharge of a weapon when the only shots fired were by the security g

uard. Facts and Procedural History
OnJanuary 30, 2002, the defe ndant-app ellan t James Samuel Hill robbed a bank in Lakeland, Te nnessee. H e did so by prete nding to w

ield a we apon in the

pocket of

his jacket, though in

fact he only ha

d a hairbrush. As he started to leave the bank, a

security guard ordere d him

to halt. When he turned around to face the guar d, the g uard fir

ed multiple shots, hitting h

im twice. Hill was apprehended, and no one else was hurt.
Hill pled gu

ilty to bank ro

bbery, and was even tually sentenced t o 132 months of imprisonment and 3 years of supervised

release. This sentencewas calc ulated ba sed on his prior cr im in al hi st or y, t he ba se of fe ns e l ev el fo r r ob be ry, a tw o-level enhancement because a financ ial institution wa s involved, a one-level enhancement because of the amount of mo ne y, a seven- level en hanceme nt because a firearm wasNo. 03-5138 United Sta tes v. Hil l 3
discharged, and a th

ree -level reduction for his accepting re sp on si bi li ty. The only

issue on a

ppeal iswhether or

not the seven-level enhancement for thedischarging of a firearm was appropriate. The diff

erence is substan

tial: R eversing the seven-level increa se would r equire t hat Hill r eceive a sente

nce inthe 63-78 month range instead of the 120-150 mont h range on which his sentence of 132 months was based.
For the reasons stated below, we REVERSE the district court and order that

his sentence be recalculated without the seven-l evel enhanceme

nt. Discussion The district court’s application of the seven-lev e l enhan cementwas based on Section 2B3.1.(b)(2)(A) of the sentencingguidelines for robberies, which reads “I f a firearm was disch arged, i ncreas e by 7 level s.” Th e go vernmen t’s pri mary argument is that the plain languag e of the guideline be followed : A firea

rm was d ischarg ed, so the increa se should apply. The defen dant, by contrast, a rgues that altho ugh the guidelines are written in the passive voice, they do not mean that the increase should be appl ied no m atter who discharged the firearm an d no ma

tter what the circumstances. At the outset, we

reject t he arg ument tha t just because the langua ge is written in the passive voi ce the enhancement should apply in this cas e. According to th at logic, Section 2B3.1.( b)(2)( C) would re quire a f ive-lev el enhan

cement s o long as a gu

n were p ossessed , presuma bly even by a secur ity guard or anyone e lse on the scene. Likewise, th e guidelines would r equire a three-level enhancement if “a dangerous weapon was otherwise. . .possessed,” § 2B3.1.(b)(2)(E), and a two-level enhan cemen t if “a threat of death was made,” § 2B3.1.(b)(2)(F). Common sense counsels ag ainst such a reading of the statute. 4 United Sta tes v. Hil l No. 03-5138
Indeed, once we place the language in its intended context, th e plain lan

guag e of the g

uideline s as a who le suppor ts th e def endant’s reading

of the sta

tute. The guideli nes provi d e that “relev ant condu

ct” for the purpo ses of de termining the s pecif ic offense characteristics “shall be de termined on the basis of the followi

ng:” (1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willful l y caused by the defe

ndant, and (B) in the case of a jointl y un dertake n crimina l activity (a criminal plan , s cheme, e ndeavor , or ente

rprise undertaken

by the defe

ndant in con certwith others, wheth er or n ot charg ed as a c onspirac y) , all rea sonably forese eable

acts and omissions of others in furtherance of the jointly undertaken cr iminal activity, tha t occurred during the commis sion of the offense of convic

tion, in preparation

for that offense, or i n th e course of attemptin g to avoid detection or responsibility for that offense. U.S.S.G. § 1B1.3(a) (emphasis added).
Inthis case, t here is no sho wing t hat th e defendant “willfull y caused” the gua rd to shoot h im. Although such a circumstance is not unimaginable, it certainl y cann ot be inferred from the conviction for the underly ing offense alone. And although the trial court judge may or may not have

been correct that there was “great

foreseeability

” that “some action might be taken against”the defendant during the commission of this crime, App. 45, the guide lines only attribute reasona bly forese eable a

cts to the defendant

when the y a re “in furtherance of

” a “j oi nt ly u nd er ta ke n c ri mi na l a ct iv it y. ” Clearly the s ecuri ty g

uard’s a ctions do n

ot fall in t

his ca te go ry. Alth ough this is a ca se of first impress ion in the Sixth Circuit, the Seventh Circuit has reached the same conclusionNo. 03-5138 United Sta tes v. Hil l 5

ina similar case. In United Sta tes v. Go rdon , 64 F.3d 281 (7th Cir. 1995), in facts very

similar to these, a

defendant was shotby a secur ity guard d uring a bank r obber y. Even th ough inthat case the robber had actually physically

elbowed the guard and tr ied to run away , the court held that the enhancement should not apply. Id. at 283 (“[A] defendant cannot be said to

have indu

ced or willfully

caused a guard to disch arge a firearm simply be cause he comm itted the unde rlying

offense of robbery, for that by itself sho ws n o desire or intent r egarding the firea rm discharge.”). The Gordon court also noted

that reasonable foreseeability was no tsufficient for the enhancement to apply under th e guidelines with respect to the actions of third parties. Id. The United States points to two cases in two othe r circu its that allege dly support its

reading of the guidelines. Howe ver, even if we wer e to find the reasoning in those cases per suasive, they

are ea sily

distingu ishable on the facts . I n Uni ted Stat es v. Rob erts , 203 F.3d 867 (5th Cir. 2000), a policeman

had laid down his gun to cuff two sus pects when one of them lunged for it and a struggle ensue d. During the struggle one of

the suspects started strikingthe polic eman in the face

. Id. at 868. Fearing they would take the gun from him, the polic eman atte

mpted to e

mpty his gun in

to the a ir, managing to get two shots off. Id. Th e court upheld the enhancem ent, distingu

ishing th e case f

rom Gordon by reasoningthat the Roberts suspect wi ll fully caused the disch arge of the weapon

by wrestling

for it and attacking the policeman. Id. at 870. An d in United States v. Williams , 51 F.3d 1004 (11th Cir. 1995), the s ame enhancement was upheld when a would-be c ar

ja ck er wa s f

ir ed up on by a passenger in the car. However, in that case the defe ndant himself fired at the car as it sped away, a n act the court ruled was du ring the commission of the offense. Id at 1008. Th e Williams court did opine that carjacking with a weapon drawn could be consid

ered to c ause a victim to fire his own weapon for th e purpose s of the offense level, id. at 1011, but such a ruling wa s u nn ec es sa ry dic ta, and in any c ase we reject that reasoning for the reasons stated a bove. 6 United Sta tes v. Hil l No. 03-5138

Becau se there has been no showing that the de fend ant w illfu lly caused t he discha rge of the wea pon, and b ecause reasona b le foreseeability

is not relevant for actions by third parties not in furtherance of a jo int undertaking, the district court is REVERSED with respect to the seven-level enhanc ement, and the c ase is REMANDED for hea rings consistent with this opinion.