United States v. McCrimon
788 F.3d 75
2d Cir.2015Background
- McCrimon pleaded guilty to bank robbery and was sentenced to 63 months’ imprisonment; district court applied a 2-level U.S.S.G. § 3C1.2 enhancement for reckless endangerment during flight.
- Facts found at sentencing: McCrimon left the scene in a getaway car driven by co-defendant Sherrod; police attempted to stop the car, a high‑speed chase followed (speeds up to 100 mph), the vehicle struck at least one car and ultimately crashed, endangering others and a passenger.
- Government proffered testimony that McCrimon encouraged Sherrod to flee and speed, but the district court declined to make factual findings on that proffer.
- The district court applied the § 3C1.2 enhancement based on U.S.S.G. § 1B1.3(a)(1)(B)’s reasonable-foreseeability standard for co‑defendant conduct, rather than Application Note 5 to § 3C1.2.
- McCrimon appealed; the Government (with McCrimon’s consent) moved to remand, arguing the district court used the wrong standard for attributing co‑defendant conduct under § 3C1.2.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3C1.2 enhancement may be applied based solely on a co‑defendant’s reckless conduct under § 1B1.3(a)(1)(B) foreseeability | Gov't/district court: reasonable foreseeability of co‑defendant’s flight suffices to attribute conduct | McCrimon: enhancement requires direct/active participation or aiding/abetting; foreseeability alone insufficient, especially given his diminished cognitive abilities | Court: Error — § 3C1.2 must be applied per Application Note 5 (defendant’s own conduct or aiding/abetting); foreseeability alone insufficient; remand for resentencing |
Key Cases Cited
- Stinson v. United States, 508 U.S. 36 (1993) (Guidelines commentary is authoritative unless inconsistent with law)
- Marcus v. United States, 560 U.S. 258 (2010) (plain‑error review framework)
- Wernick v. United States, 691 F.3d 108 (2d Cir. 2012) (plain error in sentencing context; Guidelines calculation significance)
- United States v. Cespedes, 663 F.3d 685 (3d Cir. 2011) (§ 3C1.2 requires direct/active participation consistent with Note 5)
- United States v. Franklin, 321 F.3d 1231 (9th Cir. 2003) (participation in robbery with getaway vehicles alone insufficient for § 3C1.2)
- United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (standard for reviewing sentences)