United States v. Mitchell

United States Court of Appeals
Fifth Circuit
F I L E D
April 9, 2004
Charles R. Fulbruge III
Clerk
REVISED APRIL 14, 2004
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-10644
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
COREY MITCHELL,
ALSO KNOWN AS CORY MITCHELL,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 4:01-CR-185-A
_________________________
Before HIGGINBOTHAM and SMITH,
Circuit Judges.*
PER CURIAM:
Corey Mitchell appeals the application of a
sentencing enhancement, pursuant to U.S.S.G.
§ 2B3.1(b)(3)(C), following his conviction of
bank robbery and using and carrying a firearm
in relation to that crime. The district court im-
posed a six-level enhancement because a cus-
tomer who was in the bank during the robbery
suffered a permanently debilitating stroke that
was caused by the acts of Mitchell and his as-
sociates in the course of the robbery. Mitchell
claims that this injury was not a reasonably
foreseeable result of the crime and that there- * This matter is decided by a quorum. See
28 U.S.C. § 46(d).

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fore the sentencing enhancement should not
apply. Because an injury resulting from crimi-
nal conduct need not be reasonably foreseeable
to be the proper basis for a sentencing en-
hancement under § 2B3.1(b)(3)(C), we affirm.
I.
Mitchell and two associates entered the
bank wearing masks and gloves and carrying
firearms, and while one associate took cash
from teller drawers, and the other waved his
handgun, Mitchell brandished his gun. When
the men entered the bank, t hey were seen by
customer Linda Zaccard, who tried to flee by
the back door but was told by an employee
that she would have to return. Upon her re-
turn, Zaccard observed the robbery in progress
and suffered a stroke that left her with perma-
nent physical damage, including hearing loss,
brain damage, vision problems, limited feeling
on her left side, panic attacks, anxiety, and in-
ability to walk without a walker.
II.
Mitchell pleaded guilty of bank robbery and
aiding and abetting, 18 U.S.C. §§ 2113(a) and
2 (count 4), and using and carrying a firearm in
relation to a crime of violence, that is, bank
robbery, 18 U.S.C. § 924(c)(1)(A)(i) (count
5). At the sentencing hearing, Zaccard testi-
fied to her injury. On cross-examination,
Mitchell’s attorney asked whether it was true
that Mitchell had not deliberately tried to hurt
her or single her out. The court sustained the
government’s objection to the question.
The court accepted the finding in the pre-
sentence report that Zaccard had sustained se-
rious bodily injury caused directly by the rob-
bers’ conduct. Over Mitchell’s objection, the
court applied a six-level increase pursuant to
U.S.S.G §2B3.1(b)(3)(C), which provides for
such an increase where, in the course of a rob-
bery, a victim sustains permanent or life-
threatening bodily injury. Mitchell contends
that the court erred in applying the
enhancement and in refusing to allow
Mitchell’s attorney to ask Zaccard whether
Mitchell had threatened her.
III.
We review the district court’s interpretation
and application of the sentencing guidelines de
novo and its findings of fact for clear error.
United States v. Hawkins, 87 F.3d 722 (5th
Cir. 1996). Mitchell concedes that Zaccard’s
impairments constitute “Permanent or Life
Threatening Bodily Injury” under the
sentencing guidelines and that the robbery was
the cause in fact of Zaccard’s stroke. Mitchell
contends, however, that for § 2B3.1(b)(3) to
apply, the injury must be a reasonably
foreseeable consequence of the defendant’s
conduct. Mitchell asserts that Zaccard’s
stroke was not foreseeable, that Mitchell is no
more culpable than would be a bank robber
who did not have a victim who suffered a
stroke, and that applying the enhancement
effective punishes him for his “bad luck.”
Whether § 2B3.1(b)(3) contains a
culpability requirement is an issue of first
impression in this circuit. Mitchell urges us to
adopt a standard under which an enhancement
is tied to the demonstrable culpability of the
defendant and is available only if the
defendant’s conduct can be shown to be the
proximate cause of the injury. Specifically,
Mitchell urges us to adopt the standard set
forth in United States v. Molina, 106 F.3d
1118 (2d Cir. 1997).
In Molina, a bystander was accidentally
shot by an armored-car guard in a shootout
with Molina’s co-conspirators during a
robbery. Molina was sitting in the getaway car
at the time of the shootout, so the injury could

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not be the result of his acts. The court
analyzed the case under U.S.S.G. §1B1.3(a)-
(1)(b), which specifies that offense
characteristics are to be determined by “all
reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken
criminal activity.” The court held that the
victim’s injury “resulted from” the acts of
Molina’s co-conspirators within the meaning
of § 2B3.1(b)(3)(C), despite that fact that
none of them fired the bullet that hit the
victim, because the injury was a reasonably
foreseeable consequence of their actions.
Molina provides no guidance, however, for
a case in which the injury was not reasonably
foreseeable, aside from a remark in passing
that “punishing a defendant more severely for
foreseeable harms flowing from criminal con-
duct that intentionally or knowingly risked
those harmsSSfor instance, in the felony-
murder contextSSis not an unusual aspect of
Anglo-American criminal jurisprudence.”
Molina, 106 F.3d at 1125.
Although this statement is true, as far as it
describes common law criminal culpability, we
do not agree that reasonable foreseeability is a
requirement for the imposition of an en-
hancement under the sentencing guidelines.
This court has refused to import common law
principles of culpability into its interpretation
of the guidelines. See United States v. Carba-
jal, 290 F.3d 277, 283-84 (5th Cir. 2002).
Rather, our interpretation is subject to or-
dinary rules of statutory construction, with at-
tention to the plain meaning of the guidelines
as written. See United States v. Boudreau,
250 F.3d 279, 285 (5th Cir. 2001). Because
we recognize the guidelines’ commentary as
authoritative, id., we note that the commentary
explicitly states that “the principles and limits
of sentencing accountability under this
guideline are not always the same as the
principles and limits of criminal liability.”
U.S.S.G. §1B1.3, comment. (n.1). Therefore,
unless a provision of the guidelines contains an
explicit requirement of culpability, we will not
recognize such a requirement.
A plain reading of § 2B3.1(b)(3)(C) reveals
that an increase is mandated “[i]f any victim
sustained bodily injury.” It contains no
requirement that the injury be reasonably
foreseeable or that the defendant be culpable
for the injury beyond committing the base
offense. Similarly, § 1B1.3(a)(3) states that
determinations are to be based on “all harm
that resulted from the acts and omissions
specified in subsection (a)(1) and (a)(2) . . . .”
These guidelines contain no additional
culpability requirement. Thus, a defendant is
strictly liable for any injury a victim suffers as
a result of his acts.
Because there is no doubt that Mitchell act-
ed in the robbery, and no contention that Zac-
card’s stroke was caused by an unforeseeable
act of a co-conspirator, Mitchell’s sentence
must be based on harm that resulted from the
crime. Therefore, the district court did not err
in applying the six-level enhancement.
IV.
We review the exclusion of sentencing evi-
dence for abuse of discretion. Carbajal, 290
F.3d at 287. Mitchell contends that the district
court improperly excluded evidence of
whether Mitchell threatened Zaccard
specifically. Such evidence would have been
both irrelevant and cumulative. Therefore, the
court did not abuse its discretion by sustaining
the objection.
AFFIRMED.

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