In U.S. v. Johnson, No. 11-13621 (Sept. 10, 2012), the Court reversed and remanded for resentencing a sentence enhancement under U.S.S.G. 3C1.2, which provides for a two-level enhancement if the defendant "recklessly created a substantial risk of death or serious bodily injury to another in the course of fleeing from a law enforcement officer."
The defendants participated in the armed robbery of a CVS pharmacy in Atlanta. Police arrived during the robbery. Two defendants hopped into a stolen 1995 Honda, one the driver, the other the passenger. They fled police, ignoring traffic signals, and causing other cars to make evasive maneuvers to avoid being hit. Police backed off pursuit because of safety concerns. Both defendants were ultimately apprehended and convicted.
The Court held that the district court erred in imposing the § 3C1.2 enhancement on the passenger of Honda based on a mere finding that the risk created by the driver was "reasonably foreseeable" to the passenger. The Court noted that a district court must find that a defendant "actively caused or procured the reckless behavior at issue."
The Court rejected the government’s argument that one could infer a plan of escape from the premeditation of the robbery. "It is likely that [the two defendants] did not anticipate police showing up while they were still inside the store, but the record does not permit us to make such inferences either way."
The Court noted the government’s argument that the passenger must have been aware of the need to "ram a police car to escape" from the fact that police were on the scene when he got in the getaway car. But the district court did not rely on this fact in its § 3C1.2 determination.
The Court rejected the government’s argument that the fact that Johnson fled on foot once the car crashed into a pole shows that he sought to escape during the high-speed chase. The Court noted that the flight on foot did not indicate whether the passenger played any active supporting role in the reckless car-flight.
The Court remanded and instructed for the district to "reopen the record" and "turn its eye to the robbery scene" when the defendants exited the CVS store, considering where the police and their cars were situated.