If such action could be considered upon rehearing to have been reckless, an enhancement may be appropriate. Our reliance upon the possibility that the passenger may have actively participated in the endangering conduct in a manner which is consistent with Application Note Five, rather than on his mere participation in criminal conduct that might foreseeably have resulted in an escape attempt that included endangering conduct, lends support to the Appellants' positions in the current appeal. Every other circuit, which has addressed the applicability of imposing this standard upon someone other than the person who was directly engaged in the reckless activity, has required more than evidence of an endangering conduct that was reasonably foreseeable. Rather, they have demanded the presence of some form of active participation by the accused within the meaning of the conduct listed in Application Note Five. It is our conclusion that the approach of our sister circuits should be adopted because it, rather than that used by the district court, is more consistent with the plain language of the Sentencing Guidelines.
Application Note Five a nullity.
Chief Judge Anderson concurs specially. Because the district court was clearly erroneous in finding that the high speed chase was reasonably foreseeable, it is not necessary to address the difficult question of law which the majority resolves. In this case, the government conceded at oral argument that both defendants got out of the car as soon as there was any forewarning of a high speed chase. Thus, any inference that a high speed chase was reasonably foreseeable was removed by the evidence in this case. Honorable Julian Abele Cook, Jr., Senior U.S. District Court Judge for the Eastern District of Michigan, sitting by designation.