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United States v. Patton

United States Court of Appeals, Tenth Circuit

June 24, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JERMAINE TYRELL PATTON, Defendant-Appellant.

          Appeal from the United States District Court for the District of Kansas (D.C. No. 5:16-CR-40113-DDC-1)

          David M. Magariel, Assistant Federal Defender (Melody Brannon, Federal Public Defender, with him on the brief), Kansas City, Kansas, for the Defendant - Appellant.

          Jared 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.

          Before MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.

          MATHESON, Circuit Judge.

         Jermaine 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.

         Mr. 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 affirm.

         I. BACKGROUND

         This section presents the factual background, a description of the relevant Guidelines, and the procedural history of this case.

         A. Factual Background

         In 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.

         A 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.

         At the 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.

         B. Relevant Sentencing Guidelines

         The 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).[1] "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).

         1. Relevant Conduct Guideline

         "Under 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 offenses." Id.

         Section 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 activity,
(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).[2] 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.

         2. Robbery Guideline

         Chapter 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. § 2B3.1(b)(3)(C).

         3. Official Victim Guideline

         Chapter 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).

         C. Procedural Background

         1. Information and Guilty Plea

         The 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 counts.[3]

         2. Presentence Investigation Report

         The 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.[4]

         Mr. 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.[5] 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.

         3. Sentencing

         At 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.

         First, 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.

         Second, 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.


         We discuss our standard of review and then consider Mr. Patton's challenges to his sentence. In each ...

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