*4 ANDERSON, Chief Judge, concurring tered the getaway vehicle or any made specially: attempt flee from police.2 This ratio- nale would transform U.S.S.G. 3C1.2 I concur in only. the result Because the from a factually-specific enhancement to a district court clearly erroneous find- standard that would become universally ing that the high speed chase was reason- applicable virtually everyone whose co- foreseeable, ably it is not necessary to conspirators fled from law enforcement im- address the question difficult of law which mediately following the commission of a *5 majority resolves. crime, resulting a substantial risk of death or bodily injury serious to another case, In this government conceded person. argument oral both got defendants out of the car as soon as there was any
III. forewarning of a high speed Thus, chase. any inference that a high speed chase was Consequently, imposed sentences reasonably foreseeable was removed Cook and Forthenberry are VACAT- the evidence in this case. ED and their cases REMANDED for a resentencing. The trial judge is in- whether,
structed to assess prepon- evidence,
derance of the the Government
can establish that either or both of them in, engaged or actively “aided or
abetted, counseled, commanded, induced,
procured, willfully caused” another to in,
engage satisfies the reck-
lessness standard 3C1.2. See United Matthews,
(11th Cir.1999). Further, in order to apply
1. points However, Government out that instructive, Illustration this Illustration is not (b)(1) §to 1B1.3 similar is to the facts in this that it does not address the enhancements supports case and position. Illustration Thus, flight, based on does 3C1.2. it (b)(1) provides: speak does not question; to the issue in namely Note Five Defendant C is the is an driver in an $15,000 instance in which armed bank Guidelines have "other- specified” taken wise and a apply. teller is assaulted 1B1.3 does in- jured. ... C Defendant is accountable for injury get the (a)(1)(B) This assumes that the failure to the teller into under subsection vehicle or flee because assault from would be legally on the teller was in jointly insufficient furtherance of the constitute withdrawal undertaken from (the activily robbery) criminal conspiracy, appear and was which would rea- to be the sonably only avoiding foreseeable connection basis of the activity (given criminal the nature provision relevant conduct analysis under the offense). sentencing court.