Case Information
*1 Before LOKEN, HEANEY, and RILEY, Circuit Judges.
___________
LOKEN, Circuit Judge.
Kortney Lamont Powell appeals the 121-month sentence imposed after he pleaded guilty to three bank robberies. He challenges two upward adjustments to the robbery with the highest offense level, a one-level enhancement because the loss exceeded $10,000, and a two-level enhancement because he “recklessly created a substantial risk of death or serious bodily injury” during the escape. We affirm.
After robbing TCF National Bank of $9,367, Powell and a co-defendant fled
in a stolen Chevy Blazer, pursued by the police. The getaway car, driven by Powell,
ran a red light at high speed, collided with an occupied van, and continued on down
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the wrong side of the road before crashing into a telephone pole. The robbery
guideline imposes a one-level enhancement for a loss between $10,000 and $50,000.
See U.S.S.G. § 2B3.1(b)(7)(B). The district court
[1]
imposed the one-level
enhancement, adding the value of the stolen getaway car, $3000, and the damage
caused to the van during the escape, $3,352.62, to the $9,367 taken from the bank.
The court further imposed a two-level enhancement because Powell recklessly
endangered others during the escape. See U.S.S.G. § 3C1.2. Those adjustments
increased Powell’s combined offense level to 30. See U.S.S.G. § 3D1.4.
The relevant facts are undisputed. Powell argues the district court erred by
including the value of the stolen getaway car and the property damage to the van in
calculating loss. He further argues that including the property damage caused during
the escape as loss, and separately enhancing the offense level for reckless
endangering, constitutes impermissible double counting. “Correct application of the
Sentencing Guidelines is a question of law subject to
de novo
review.” United States
v. Lamere,
1. The Loss Calculation. In the robbery guideline, “‘Loss’ means the value
of the property taken, damaged, or destroyed.” U.S.S.G. § 2B3.1, comment. (n.3). [2] The stolen Chevy Blazer used as a getaway car was obviously “taken” from its owner, and the van was obviously “damaged” during the escape. Powell nonetheless argues that escape-related loss and damage should be excluded in calculating loss. *3 The robbery guideline treats loss as a specific offense characteristic. See U.S.S.G. § 2B3.1(b). The parameters of specific offense characteristics are defined in the Relevant Conduct guideline, U.S.S.G. § 1B1.3:
(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified . . . specific offense characteristics . . . shall be determined on the basis of the following:
(1) (A) all acts and omissions . . . that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense ;
* * * * *
(3) all harm that resulted from the acts and omissions specified in [subsection 1] . . . .
(Emphasis added.) Here, the Chevy Blazer was stolen (“taken”) to help the robbers
avoid detection and apprehension. Thus, the value of that car was squarely within the
Guidelines’ concept of robbery loss, as the First Circuit held in United States v. Cruz-
Santiago,
2. The Double Counting Issue.
Powell argues the district court engaged in
impermissible double counting when it imposed a reckless endangering enhancement
after including the damage to property during his escape in calculating loss. This
contention is without merit. First, it is factually inaccurate -- the value of the getaway
car was included in the loss calculation because it was property “taken,” regardless
of whether the robbers recklessly endangered others or damaged other property
during their escape. Enhancements for theft of a getaway car and for endangering
others during the getaway punish different conduct
and
different harms, so there was
no double counting. See United States v. Hipenbecker,
Second, while the same reckless conduct damaged property (the van) and endangered other persons during the escape, the Guidelines deal explicitly with this potential double counting situation:
Do not apply this [reckless endangering] enhancement where the offense guideline in Chapter Two, or another adjustment in Chapter Three, results in an equivalent or greater increase in offense level solely on the basis of the same conduct.
U.S.S.G. § 3C1.2, comment. (n.1). Here, including the property damage to the van
in calculating loss increased the robbery offense level by one, which is less than the
*5
two-level increase for reckless endangering. We are bound by the Guidelines’
explicit resolution of this question. See United States v. Baker,
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
Notes
[1] The Honorable ANN D. MONTGOMERY, United States District Judge for the District of Minnesota.
[2] Note 3 was amended on November 1, 2001, but the amendment did not change the prior guideline. See U.S.S.G. Supp. to App. C, amendment 617, at pp. 159, 190.