United States v. Cespedes
2011 U.S. App. LEXIS 25286
| 3rd Cir. | 2011Background
- Cespedes and two conspirators planned and committed an armed bank robbery, with one accomplice handling the getaway car outside.
- During the robbery, Cespedes displayed a weapon and demanded money, yielding $22,467.
- The getaway car drove off with Whitehurst, who led police on a high-speed pursuit through two counties.
- Cespedes fled on foot when the driver’s reckless driving escalated, and a gun was later found near the arrest scene.
- A three-count indictment followed: conspiracy to commit armed bank robbery, armed bank robbery, and use of a firearm during a crime of violence; Cespedes pled guilty to all counts.
- The District Court imposed a two-level enhancement under § 3C1.2 for recklessly creating a substantial risk during flight, based on his status as a conspirator rather than direct participation in the driver’s dangerous conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3C1.2 can apply based on conspiracy participation. | Cespedes argues Note 5 limits § 3C1.2 to direct or active participation. | Cespedes contends § 1B1.3(a)(1)(B) foresees liability; Note 5 narrows applicability. | Note 5 requires direct or active participation; enhancement reversed. |
| Whether § 1B1.3(a)(1)(B) foresees liability for a passenger’s co-conspirator’s recklessness. | Government argues reasonable foreseeability suffices under § 1B1.3(a)(1)(B). | Cespedes cannot be held for another’s recklessness absent explicit conduct under Note 5. | Note 5 controls; § 1B1.3(a)(1)(B) does not apply to § 3C1.2 here. |
| Whether the Government met its burden with sufficient evidence of direct/active participation. | Record lacks explicit conduct showing Cespedes aided or caused recklessness; enhancement not proven. |
Key Cases Cited
- United States v. Cook, 181 F.3d 1232 (11th Cir. 1999) (requires direct/active participation for § 3C1.2 when relying on Note 5)
- Chong v. United States, 285 F.3d 343 (4th Cir. 2002) (Note 5 constraints on accountability for co-conspirator recklessness)
- United States v. Conley, 131 F.3d 1387 (10th Cir. 1997) (requirement of direct/active participation for § 3C1.2)
- United States v. Lipsey, 62 F.3d 1134 (9th Cir. 1995) (getaway context requires more than mere foreseeability)
- United States v. Wilfong, 475 F.3d 1214 (10th Cir. 2007) (passenger must be shown to have particularized participation)
- United States v. Franklin, 321 F.3d 1231 (9th Cir. 2003) (getaway-conspiracy planning alone insufficient for § 3C1.2)
- United States v. Dickler, 64 F.3d 818 (3d Cir. 1995) (case: ordinary limits on re-sentencing when record insufficient)