United States of America v. James Samuel Hill

*The Honorable John T. Nixon, United States District Judge for the
Midd le District of Tennessee, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0274P (6th Cir.)
File Name: 04a0274p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES SAMUEL HILL,
Defendant-Appellant.
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No. 03-5138
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 02-20028—Julia S. Gibbons, District Judge.
Argued: June 10, 2004
Decided and Filed: August 20, 2004
Before: MERRITT and DAUGHTREY, Circuit Judges;
NIXON, District Judge.*
_________________
COUNSEL
ARGUED: Needum L. Germany, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
2 United States v. Hill No. 03-5138
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Tony R. Arvin, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Randolph W. Alden, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. Tony R. Arvin, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
_________________
OPINION
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MERRITT, Circuit Judge. The defendant in this case pled
guilty to bank robbery. During that robbery the defendant
was shot twice by a security guard. The sole issue on appeal
is whether the district court should not have given him a
seven-level sentence enhancement for the discharge of a
weapon when the only shots fired were by the security guard.
Facts and Procedural History
On January 30, 2002, the defendant-appellant James
Samuel Hill robbed a bank in Lakeland, Tennessee. He did
so by pretending to wield a weapon in the pocket of his
jacket, though in fact he only had a hairbrush. As he started
to leave the bank, a security guard ordered him to halt. When
he turned around to face the guard, the guard fired multiple
shots, hitting him twice. Hill was apprehended, and no one
else was hurt.
Hill pled guilty to bank robbery, and was eventually
sentenced to 132 months of imprisonment and 3 years of
supervised release. This sentence was calculated based on his
prior criminal history, the base offense level for robbery, a
two-level enhancement because a financial institution was
involved, a one-level enhancement because of the amount of
money, a seven-level enhancement because a firearm was

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No. 03-5138 United States v. Hill 3
discharged, and a three-level reduction for his accepting
responsibility. The only issue on appeal is whether or not the
seven-level enhancement for the discharging of a firearm was
appropriate. The difference is substantial: Reversing the
seven-level increase would require that Hill receive a sentence
in the 63-78 month range instead of the 120-150 month range
on which his sentence of 132 months was based.
For the reasons stated below, we REVERSE the district
court and order that his sentence be recalculated without the
seven-level enhancement.
Discussion
The district court’s application of the seven-level
enhancement was based on Section 2B3.1.(b)(2)(A) of the
sentencing guidelines for robberies, which reads “If a firearm
was discharged, increase by 7 levels.” The government’s
primary argument is that the plain language of the guideline
be followed: A firearm was discharged, so the increase
should apply. The defendant, by contrast, argues that
although the guidelines are written in the passive voice, they
do not mean that the increase should be applied no matter
who discharged the firearm and no matter what the
circumstances.
At the outset, we reject the argument that just because the
language is written in the passive voice the enhancement
should apply in this case. According to that logic, Section
2B3.1.(b)(2)(C) would require a five-level enhancement so
long as a gun were possessed, presumably even by a security
guard or anyone else on the scene. Likewise, the guidelines
would require a three-level enhancement if “a dangerous
weapon was otherwise. . .possessed,” § 2B3.1.(b)(2)(E), and
a two-level enhancement if “a threat of death was made,”
§ 2B3.1.(b)(2)(F). Common sense counsels against such a
reading of the statute.
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Indeed, once we place the language in its intended context,
the plain language of the guidelines as a whole supports the
defendant’s reading of the statute. The guidelines provide
that “relevant conduct” for the purposes of determining the
specific offense characteristics “shall be determined on the
basis of the following:”
(1)(A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant, and
(B) in the case of a jointly undertaken criminal activity
(a criminal plan, scheme, endeavor, or enterprise
undertaken by the defendant in concert with others,
whether or not charged as a conspiracy), all reasonably
foreseeable acts and omissions of others in furtherance of
the jointly undertaken criminal activity, 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.
U.S.S.G. § 1B1.3(a) (emphasis added).
In this case, there is no showing that the defendant
“willfully caused” the guard to shoot him. Although such a
circumstance is not unimaginable, it certainly cannot be
inferred from the conviction for the underlying offense alone.
And although the trial court judge may or may not have been
correct that there was “great foreseeability” that “some action
might be taken against” the defendant during the commission
of this crime, App. 45, the guidelines only attribute
reasonably foreseeable acts to the defendant when they are “in
furtherance of” a “jointly undertaken criminal activity.”
Clearly the security guard’s actions do not fall in this
category.
Although this is a case of first impression in the Sixth
Circuit, the Seventh Circuit has reached the same conclusion

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No. 03-5138 United States v. Hill 5
in a similar case. In United States v. Gordon, 64 F.3d 281
(7th Cir. 1995), in facts very similar to these, a defendant was
shot by a security guard during a bank robbery. Even though
in that case the robber had actually physically elbowed the
guard and tried to run away, the court held that the
enhancement should not apply. Id. at 283 (“[A] defendant
cannot be said to have induced or willfully caused a guard to
discharge a firearm simply because he committed the
underlying offense of robbery, for that by itself shows no
desire or intent regarding the firearm discharge.”). The
Gordon court also noted that reasonable foreseeability was
not sufficient for the enhancement to apply under the
guidelines with respect to the actions of third parties. Id.
The United States points to two cases in two other circuits
that allegedly support its reading of the guidelines. However,
even if we were to find the reasoning in those cases
persuasive, they are easily distinguishable on the facts. In
United States v. Roberts, 203 F.3d 867 (5th Cir. 2000), a
policeman had laid down his gun to cuff two suspects when
one of them lunged for it and a struggle ensued. During the
struggle one of the suspects started striking the policeman in
the face. Id. at 868. Fearing they would take the gun from
him, the policeman attempted to empty his gun into the air,
managing to get two shots off. Id. The court upheld the
enhancement, distinguishing the case from Gordon by
reasoning that the Roberts suspect willfully caused the
discharge of the weapon by wrestling for it and attacking the
policeman. Id. at 870. And in United States v. Williams, 51
F.3d 1004 (11th Cir. 1995), the same enhancement was
upheld when a would-be carjacker was fired upon by a
passenger in the car. However, in that case the defendant
himself fired at the car as it sped away, an act the court ruled
was during the commission of the offense. Id at 1008. The
Williams court did opine that carjacking with a weapon drawn
could be considered to cause a victim to fire his own weapon
for the purposes of the offense level, id. at 1011, but such a
ruling was unnecessary dicta, and in any case we reject that
reasoning for the reasons stated above.
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Because there has been no showing that the defendant
willfully caused the discharge of the weapon, and because
reasonable foreseeability is not relevant for actions by third
parties not in furtherance of a joint undertaking, the district
court is REVERSED with respect to the seven-level
enhancement, and the case is REMANDED for hearings
consistent with this opinion.

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