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The Honorable John T. Nixon, United States District Judge for the

Middle District of Tennessee, sitting by designation.

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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0274P (6th Cir.)

File Name: 04a0274p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES SAMUEL HILL,

Defendant-Appellant.

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No. 03-5138

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 02-20028—Julia S. Gibbons, District Judge.

Argued: June 10, 2004

Decided and Filed: August 20, 2004 

Before: MERRITT and DAUGHTREY, Circuit Judges;

NIXON, District Judge.*

_________________

COUNSEL

ARGUED: Needum L. Germany, OFFICE OF THE

FEDERAL PUBLIC DEFENDER FOR THE WESTERN

2 United States v. Hill No. 03-5138

DISTRICT OF TENNESSEE, Memphis, Tennessee, for

Appellant. Tony R. Arvin, ASSISTANT UNITED STATES

ATTORNEY, Memphis, Tennessee, for Appellee.

ON BRIEF: Randolph W. Alden, OFFICE OF THE

FEDERAL PUBLIC DEFENDER FOR THE WESTERN

DISTRICT OF TENNESSEE, Memphis, Tennessee, for

Appellant. Tony R. Arvin, ASSISTANT UNITED STATES

ATTORNEY, Memphis, Tennessee, for Appellee.

_________________

OPINION

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MERRITT, Circuit Judge. The defendant in this case pled

guilty to bank robbery. During that robbery the defendant

was shot twice by a security guard. The sole issue on appeal

is whether the district court should not have given him a

seven-level sentence enhancement for the discharge of a

weapon when the only shots fired were by the security guard.

Facts and Procedural History

On January 30, 2002, the defendant-appellant James

Samuel Hill robbed a bank in Lakeland, Tennessee. He did

so by pretending to wield a weapon in the pocket of his

jacket, though in fact he only had a hairbrush. As he started

to leave the bank, a security guard ordered him to halt. When

he turned around to face the guard, the guard fired multiple

shots, hitting him twice. Hill was apprehended, and no one

else was hurt.

Hill pled guilty to bank robbery, and was eventually

sentenced to 132 months of imprisonment and 3 years of

supervised release. This sentence was calculated based on his

prior criminal history, the base offense level for robbery, a

two-level enhancement because a financial institution was

involved, a one-level enhancement because of the amount of

money, a seven-level enhancement because a firearm was
No. 03-5138 United States v. Hill 3

discharged, and a three-level reduction for his accepting

responsibility. The only issue on appeal is whether or not the

seven-level enhancement for the discharging of a firearm was

appropriate. The difference is substantial: Reversing the

seven-level increase would require that Hill receive a sentence

in the 63-78 month range instead of the 120-150 month 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-level enhancement.

Discussion

The district court’s application of the seven-level

enhancement was based on Section 2B3.1.(b)(2)(A) of the

sentencing guidelines for robberies, which reads “If a firearm

was discharged, increase by 7 levels.” The government’s

primary argument is that the plain language of the guideline

be followed: A firearm was discharged, so the increase

should apply. The defendant, by contrast, argues that

although the guidelines are written in the passive voice, they

do not mean that the increase should be applied no matter

who discharged the firearm and no matter what the

circumstances. 

At the outset, we reject the argument that just because the

language is written in the passive voice the enhancement

should apply in this case. According to that logic, Section

2B3.1.(b)(2)(C) would require a five-level enhancement so

long as a gun were possessed, presumably even by a security

guard or anyone else on the scene. Likewise, the guidelines

would require a three-level enhancement if “a dangerous

weapon was otherwise. . .possessed,” § 2B3.1.(b)(2)(E), and

a two-level enhancement if “a threat of death was made,”

§ 2B3.1.(b)(2)(F). Common sense counsels against such a

reading of the statute.

4 United States v. Hill No. 03-5138

Indeed, once we place the language in its intended context,

the plain language of the guidelines as a whole supports the

defendant’s reading of the statute. The guidelines provide

that “relevant conduct” for the purposes of determining the

specific offense characteristics “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.

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

In this case, there is no showing that the defendant

“willfully caused” the guard to shoot him. Although such a

circumstance is not unimaginable, it certainly cannot be

inferred from the conviction for the underlying 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 guidelines only attribute

reasonably foreseeable acts to the defendant when they are “in

furtherance of” a “jointly undertaken criminal activity.”

Clearly the security guard’s actions do not fall in this

category.

Although this is a case of first impression in the Sixth

Circuit, the Seventh Circuit has reached the same conclusion
No. 03-5138 United States v. Hill 5

in a similar case. In United States v. Gordon, 64 F.3d 281

(7th Cir. 1995), in facts very similar to these, a defendant was

shot by a security guard during a bank robbery. Even though

in that case the robber had actually physically elbowed the

guard and tried to run away, the court held that the

enhancement should not apply. Id. at 283 (“[A] defendant

cannot be said to have induced or willfully caused a guard to

discharge a firearm simply because he committed the

underlying offense of robbery, for that by itself shows no

desire or intent regarding the firearm discharge.”). The

Gordon court also noted that reasonable foreseeability was

not sufficient for the enhancement to apply under the

guidelines with respect to the actions of third parties. Id.

The United States points to two cases in two other circuits

that allegedly support its reading of the guidelines. However,

even if we were to find the reasoning in those cases

persuasive, they are easily distinguishable on the facts. In

United States v. Roberts, 203 F.3d 867 (5th Cir. 2000), a

policeman had laid down his gun to cuff two suspects when

one of them lunged for it and a struggle ensued. During the

struggle one of the suspects started striking the policeman in

the face. Id. at 868. Fearing they would take the gun from

him, the policeman attempted to empty his gun into the air,

managing to get two shots off. Id. The court upheld the

enhancement, distinguishing the case from Gordon by

reasoning that the Roberts suspect willfully caused the

discharge of the weapon by wrestling for it and attacking the

policeman. Id. at 870. And in United States v. Williams, 51

F.3d 1004 (11th Cir. 1995), the same enhancement was

upheld when a would-be carjacker was fired upon by a

passenger in the car. However, in that case the defendant

himself fired at the car as it sped away, an act the court ruled

was during the commission of the offense. Id at 1008. The

Williams court did opine that carjacking with a weapon drawn

could be considered to cause a victim to fire his own weapon

for the purposes of the offense level, id. at 1011, but such a

ruling was unnecessary dicta, and in any case we reject that

reasoning for the reasons stated above. 

6 United States v. Hill No. 03-5138

Because there has been no showing that the defendant

willfully caused the discharge of the weapon, and because

reasonable foreseeability is not relevant for actions by third

parties not in furtherance of a joint undertaking, the district

court is REVERSED with respect to the seven-level

enhancement, and the case is REMANDED for hearings

consistent with this opinion.