Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 5-09-cr-00216-001) District Judge: Honorable Lawrence F. Stengel
The opinion of the court was delivered by: Rendell, Circuit Judge.
Before: McKEE, Chief Judge, RENDELL and AMBRO, Circuit Judges
This case requires us to determine the minimum conduct in which a defendant must engage in order to qualify for a two-level enhancement pursuant to Sentencing Guidelines § 3C1.2 ("§ 3C1.2"), for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.
Defendant Dwayne Cespedes appeals the 144-month sentence he received after pleading guilty to armed robbery and related offenses. Specifically, Cespedes objects to the District Court's enhancement of his sentence for recklessly endangering others while fleeing from law enforcement officers pursuant to § 3C1.2 based purely upon his participation in a conspiracy to commit armed robbery, when he was merely a passenger in the car which was being driven recklessly by his co-conspirator. Given the language of the relevant guideline provisions, we agree with Cespedes and will therefore remand for re-sentencing without the enhancement.
Cespedes and two confederates planned and executed an armed robbery of the KNBT Bank in Whitehall, Pennsylvania. Cespedes and one of his co-conspirators, Michael Grant, entered the bank armed with guns, while the other accomplice, Curtis Whitehurst, waited outside in a getaway car.
While in the bank, Cespedes showed his weapon to the bank's teller, stating "it is what it is," as Grant opened the cash drawer and removed its contents. Cespedes then pointed the weapon at the teller and gave her thirty seconds to tell them where the rest of the bank's money was located. The robbers then removed more money from the bank safe before exiting with $22,467 in cash.
Cespedes and Grant then entered the getaway car driven by Whitehurst. Rather than submit to an attempted traffic stop, Whitehurst engaged police in a high speed chase through residential neighborhoods that spanned two counties. Eventually, Cespedes and Grant got out and fled on foot, after which Whitehurst continued his reckless driving. Whitehurst ignored traffic laws, running stop signs and traveling in the wrong direction on certain roads. At one point during the chase, Whitehurst nearly struck innocent bystanders walking in a crosswalk. Eventually, Whitehurst collided with a parked minivan before being struck by a police cruiser while attempting to reverse.
Cespedes was apprehended after a short pursuit on foot. A gun was recovered under a trash can lid in the vicinity of where Cespedes fled. The bank teller later positively identified him as the robber who pointed a gun at her.
A grand jury returned a three-count indictment against Cespedes, charging him with the following offenses: conspiracy to commit armed bank robbery, in violation of 18 U.S.C. § 371; armed bank robbery, in violation of 18 U.S.C. § 2113(d); and use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1). Cespedes pleaded guilty to all three counts.
Consistent with the recommendation in Cespedes' Presentence Investigation Report, the District Court applied a two-level enhancement for recklessly endangering others while fleeing from law enforcement officers pursuant to § 3C1.2.*fn1 The District Court rejected Cespedes' objection that the enhancement was improper because he never possessed any control over the recklessly driven getaway vehicle, and had exited on ...