Co-defendant's post-robbery shooting of officer supported sentencing enhancements even though defendant had already been arrested
United States v. Patton, 2019 WL 2571866 (10th Cir. June 24, 2019) (KS, published): Patton was the getaway driver in a string of armed robberies that ended in his arrest. An hour after his arrest, his associate shot a detective who was investigating the pair’s most recent robbery. Patton pleaded guilty to aiding and abetting Hobbs Act robbery and carrying of a firearm during the robbery. On appeal he challenged the district court’s finding that he inflicted "permanent or life-threatening [b]odily injury" warranting a 6-level increase under U.S.S.G. § 2B3.1(b)(3)(C) and that he assaulted a law enforcement officer justifying another 6-level increase under U.S.S.G. § 3A1.2(c)(1) (Official Victim).
On appeal, Patton argued that the co-defendant’s shooting was not within the scope and in furtherance of the jointly taken criminal activity because he was arrested before the shooting. The panel disagreed. Starting with the principle that robberies carry with them "the inherent prospect that someone could be injured," the panel said that ‘relevant conduct’ encompass acts or omissions of an associate even when the accused is not present. Those acts or omissions may include those taken to avoid detection or responsibility. It did not matter that Patton was in custody and there was nothing he could do to further any jointly undertaken activity. His associate was still at large and attempting to elude police – one of the goals of a joint robbery. Shooting the detective advanced this goal.
Patton also said the official victim enhancement should not apply to him because the assault did not occur during the "immediate flight" from the robbery. Even though an hour passed from when Patton was arrested until his associate assaulted the officer, the panel said, that in context, there was no break in causation between the flight from the robbery and the shooting. Consequently, the shooting was part of the immediate flight from the robbery.
On appeal, Patton argued that the co-defendant’s shooting was not within the scope and in furtherance of the jointly taken criminal activity because he was arrested before the shooting. The panel disagreed. Starting with the principle that robberies carry with them "the inherent prospect that someone could be injured," the panel said that ‘relevant conduct’ encompass acts or omissions of an associate even when the accused is not present. Those acts or omissions may include those taken to avoid detection or responsibility. It did not matter that Patton was in custody and there was nothing he could do to further any jointly undertaken activity. His associate was still at large and attempting to elude police – one of the goals of a joint robbery. Shooting the detective advanced this goal.
Patton also said the official victim enhancement should not apply to him because the assault did not occur during the "immediate flight" from the robbery. Even though an hour passed from when Patton was arrested until his associate assaulted the officer, the panel said, that in context, there was no break in causation between the flight from the robbery and the shooting. Consequently, the shooting was part of the immediate flight from the robbery.
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