from the United States District Court for the District of
Kansas (D.C. No. 5:16-CR-40113-DDC-1)
M. Magariel, Assistant Federal Defender (Melody Brannon,
Federal Public Defender, with him on the brief), Kansas City,
Kansas, for the Defendant - Appellant.
S. Maag, Assistant United States Attorney (Stephen R.
McAllister, United States Attorney, and James A. Brown,
Assistant United States Attorney, with him on the brief),
Topeka, Kansas, for the Plaintiff - Appellee.
MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.
MATHESON, Circuit Judge.
Tyrell Patton was the getaway driver in a string of armed
robberies that ended in his arrest. An hour after Mr.
Patton's arrest, his associate shot a police detective
who was investigating the pair's most recent robbery. Mr.
Patton pled guilty to aiding and abetting (1) Hobbs Act
robbery and (2) carrying of a firearm during the robbery. To
account for the shooting, the district court increased his
United States Sentencing Guidelines ("U.S.S.G." or
"Guidelines") advisory sentencing range by applying
(1) U.S.S.G. § 2B3.1(b)(3)(C) ("the Robbery
Guideline") for infliction of "[p]ermanent or
[l]ife-[t]hreatening [b]odily [i]njury" and (2) U.S.S.G.
§ 3A1.2(c)(1) ("the Official Victim
Guideline") for assault on a law enforcement officer.
Patton challenges the district court's application of
these Guidelines, arguing (1) the Robbery Guideline does not
apply because the shooting was not his relevant conduct under
U.S.S.G. § 1B1.3(a)(1)(B) ("the Relevant Conduct
Guideline") and (2) the Official Victim Guideline does
not apply because (a) the shooting was not his relevant
conduct, (b) he was not "otherwise accountable" for
the shooting, and (c) it did not occur during "immediate
flight" from the robbery. Exercising jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), we
section presents the factual background, a description of the
relevant Guidelines, and the procedural history of this case.
2016, Mr. Patton and Christopher Harris robbed the Oakmart
gas station and convenience store in Topeka, Kansas, their
third convenience store robbery in a week. Mr. Harris entered
the store with a firearm and demanded money while Mr. Patton
remained in the getaway car.
police officer spotted the pair soon after they fled in the
car. Mr. Patton stopped the car, and the two men fled on foot
into a wooded area. Police officers apprehended Mr. Patton
"almost immediately," Record on Appeal
("ROA"), Vol. III at 64, but Mr. Harris remained at
large for just over an hour. Police officers "set up a
perimeter in the area trying to contain" Mr. Harris.
Supp. ROA at 134.
end of the hour, Detective Brian Hill, who was investigating
the robbery, encountered Mr. Harris walking two or three
miles from where Mr. Patton had been arrested. Mr. Harris
shot Detective Hill, and Detective Hill returned fire. The
exchange of fire wounded both men badly and forced the
detective's retirement from the Topeka Police Department.
Relevant Sentencing Guidelines
Robbery Guideline and the Official Victim Guideline used to
calculate Mr. Patton's sentence are "determined on
the basis of his "relevant conduct," as defined in
the Relevant Conduct Guideline. U.S.S.G §
1B1.3(a). "The government bears the burden of
proving sentencing enhancements by a preponderance of the
evidence." United States v. Orr, 567 F.3d 610,
614 (10th Cir. 2009).
Relevant Conduct Guideline
the Sentencing Guidelines, the sentencing range for a
particular offense is determined on the basis of all
'relevant conduct' in which the defendant was engaged
and not just with regard to the conduct underlying the
offense of conviction." Witte v. United
States, 515 U.S. 389, 393 (1995). "Section
1B1.3 of the [Guidelines] defines relevant conduct and
explains the rules for determining what acts or omissions are
considered relevant conduct to a given offense type."
Office of Gen. Counsel, U.S. Sentencing Comm'n, Primer:
Relevant Conduct 2 (2019). Section 1B1.3(a)(1) "contains
the basic rules of relevant conduct applicable to all
1B1.3(a)(1) defines a defendant's relevant conduct in two
ways, either or both of which may apply in a given case.
See U.S.S.G. § 1B1.3 cmt. 2. First, it covers
"all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused
by the defendant." U.S.S.G. 1B1.3(a)(1)(A). Second,
"in the case of a jointly undertaken criminal
activity," relevant conduct includes "all acts and
omissions of others that . . . occurred during the commission
of the offense of conviction . . . or in the course of
attempting to avoid detection or responsibility for that
offense," if the acts were also:
(i) within the scope of the jointly undertaken criminal
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal
activity . . . .
U.S.S.G. § 1B1.3(a)(1)(B). The parties agree that only the
second definition- § 1B1.3(a)(1)(B)-is at issue here.
See ROA, Vol. I at 89; Aplt. Br. at 11.
Two of the Guidelines concerns offense conduct. Each offense
has a corresponding offense level. Robbery has a base offense
level of 20, U.S.S.G. § 2B3.1(a), which is increased by
six "[i]f any victim sustained bodily injury" that
was "permanent or [l]ife-[t]hreatening." U.S.S.G.
Official Victim Guideline
Three of the Guidelines provides for adjustments of the
offense level. The Official Victim Guideline provides for a
victim-related adjustment. It calls for a six-level increase
[i]f, in a manner creating a substantial risk of serious
bodily injury, the defendant or a person for whose conduct
the defendant is otherwise accountable . . . knowing or
having reasonable cause to believe that a person was a law
enforcement officer, assaulted such officer during the course
of the offense or immediate flight therefrom . . .
U.S.S.G. § 3A1.2(c)(1).
Information and Guilty Plea
Government filed an information charging Mr. Patton in the
Oakmart robbery. Count one alleged aiding and abetting Hobbs
Act robbery, in violation of 18 U.S.C. § 1951(a). Count
two alleged aiding and abetting using and carrying a firearm
during a crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A). Mr. Patton pled guilty to both
Presentence Investigation Report
Probation Office prepared a Presentence Investigation Report
("PSR"), which calculated a base offense level of
20. The PSR also recommended two six-level increases under
§ 2B3.1(b)(3)(C) and § 3A1.2(c)(1) to account for
Detective Hill's shooting injuries. After a three-level
decrease under § 3E1.1 for acceptance of responsibility,
the PSR calculated a total offense level of 29. It assigned
Mr. Patton a criminal history category of IV. The resulting
Guidelines range was 121 to 151 months for the Hobbs Act
robbery and an additional 60 consecutive months for the
§ 924(c) offense.
Patton objected to the PSR. Two objections are relevant here:
(1) that "the shooting should not be considered relevant
conduct under . . . § 1B1.3(a)(1)(B)," in part
because he was in custody when Mr. Harris shot Detective
Hill, see ROA, Vol. I at 103, 107; and (2) that the
Official Victim Guideline should not apply because (a) Mr.
Patton was not "otherwise accountable" for Mr.
Harris's action and (b) the shooting did not occur during
"immediate flight" from the robbery, id.
at 109-10. He urged the court to calculate a
Guidelines range of 37 to 46 months for the Hobbs Act robbery
and a consecutive 60 months for the § 924(c) offense.
sentencing, the district court heard testimony to the facts
underlying the offense, the shooting, and the arrests from
Topeka police officer Patrick Salmon. The court then
overruled the two objections described above.
the district court concluded that § 2B3.1(b)(3)(C)'s
six-level increase applied because all of the factors in the
relevant conduct definition for jointly undertaken criminal
activity were met. The shooting was within the scope of
jointly undertaken criminal activity, the court said, because
Mr. Patton "agreed to jointly undertake a forced armed
robbery where a firearm was used" and "the scope of
that jointly undertaken criminal activity expanded" when
both men fled. ROA, Vol. III at 108. The shooting was in
furtherance of that criminal activity because "jointly
undertaken flight and eluding" are related to the
underlying crime. Id. at 109. And when "a
defendant . . . agrees to participate in an armed robbery
with a codefendant and then subsequently decides and agrees
to take flight with his codefendant," it is foreseeable
that "the codefendant might [use a firearm] . . .
against a law enforcement officer who responded to the report
of the crime." Id. at 110.
the district court concluded that § 3A1.2(c)(1) applied
because there was no "break in causation between the
flight from the robbery and the shooting." Id.
at 114. The court rejected Mr. Patton's argument that the
shooting was not during "immediate flight" from the
offense and did not expressly address the argument that he
was not "otherwise accountable" for the shooting.
Id. at 113-14.
discuss our standard of review and then consider Mr.
Patton's challenges to his sentence. In each ...