U.S. v. Molina

• Decision Date: 12 February 1997
• Docket Number: No. 877,D,877
• Citation: 106 F.3d 1118
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jose P. MOLINA, Defendant-Appellee. ockets 96-1260(L), 96-1308(XAP).
• Court: U.S. Court of Appeals — Second Circuit

Page 1118

106 F.3d 1118

UNITED STATES of America, Plaintiff-Appellant, v. Jose P. MOLINA, Defendant-Appellee.

No. 877, Dockets 96-1260(L), 96-1308(XAP).

United States Court of Appeals Second Circuit.

Argued Dec. 3, 1996.

Decided Feb. 12, 1997.

Lawrence Mark Stern, New York City, for defendant-appellee.

Paul Weinstein, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., David C. James, Asst. U.S. Atty., on the brief), for plaintiff-appellant.

Before: NEWMAN, Chief Judge, OAKES and WINTER, Circuit Judges.

JON O. NEWMAN, Chief Judge:

This appeal primarily concerns a narrow sentencing issue relating to enhanced punishment for injury to a bystander. The precise issue is whether a specific offense enhancement based on bodily injury to a victim, sustained during the commission of a robbery, may be imposed when the bullet that struck the victim did not come from the weapon of the defendant or his co-conspirators, but from that of an armed guard attempting to fend off the robbery. The question arises on an appeal by the United States from the April 18, 1996, judgment of the District Court for the Eastern District of New York (Jack B. Weinstein, Judge), sentencing defendant Jose P. Molina to a term of imprisonment of 78 months, following a jury verdict convicting him of conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a). We conclude that the District Judge erred in holding that, as a matter of law, the specific offense enhancement of U.S.S.G. § 2B3.1(b)(3) cannot be applied when the bullet that injured the victim did not come from the weapon of the defendant or his co-conspirators. We also conclude that the District Judge's finding, for the purpose of the specific offense enhancement of U.S.S.G. § 2B3.1(b)(2), that it was not reasonably foreseeable to the defendant that his co-conspirators would discharge their weapons during the robbery attempt was clearly erroneous. We vacate Molina's sentence and remand for resentencing.

Background

Molina and his co-conspirators, Santiago, Serrano, and Castro, were long-time acquaintances who began, in late 1991 or early 1992, to plan the robbery of an armored car that regularly delivered cash to a check-cashing store near Molina's residence in Brooklyn. After a series of meetings, the conspirators agreed that Santiago and Serrano would be the gunmen, Molina would drive the first getaway car, and Castro would supply the required firearms and drive the second getaway car.

On the morning of the day of the robbery, Santiago and Serrano walked to Molina's house. Molina was carrying a black bag when he left his residence. When the three men met with Castro later that morning, Castro said that he was busy and could not participate in the robbery. Undeterred, Serrano, Santiago, and Molina entered a stolen car that Molina had obtained for the robbery and proceeded with their plan. Molina drove the vehicle.

As the car approached the check-cashing store, Santiago removed two weapons from the black bag that Molina had carried earlier--a machine gun with a full magazine of ammunition and a semi-automatic pistol, also fully loaded. When the conspirators arrived at the check-cashing store, they noticed that all the available parking spaces in front of the store were occupied. Molina decided to double-park the getaway vehicle while the conspirators awaited the arrival of the armored car.

Santiago decided to walk into a nearby grocery store; Serrano and Molina remained in front of the check-cashing store. While Santiago was still in the grocery store, a woman whose car was blocked by the double-parked getaway vehicle insisted that Molina move his vehicle so that she could drive away. Molina obliged, reentered the getaway vehicle, moved it to let the woman's car drive off, and began to circle the block in order to return to the same spot in front of the check-cashing store.

Just as Molina left the scene, the armored car arrived and double-parked about where the getaway car had earlier been parked. One armed guard got out and removed two bags, one with cash and the other with foodstamps. A second armed guard got out and stood nearby. The first guard then began to carry the two bags toward the check-cashing store.

Santiago, who apparently did not see Molina move the getaway car, left the nearby grocery store, drew his machine gun, and confronted the guards. The first guard dropped the bags and ducked behind a car. Santiago fired a volley of bullets that missed both guards and slammed into the armored vehicle. The second guard drew his weapon and fired at Santiago, striking him repeatedly. The first guard also began firing at Santiago, who fell and dropped his machine gun.

During the shooting, Serrano, who had seen Molina move the car, yelled for Santiago to run. Upon seeing that Santiago had been shot and that Molina and the getaway vehicle were nowhere in sight, Serrano fired his weapon in the direction of the armored car and fled from the scene. He eventually ran to Molina's residence, a few blocks away, and found Molina already there.

After the shooting, it was discovered that a 79-year-old woman who was at the scene of the crime had been struck in the foot by a stray bullet. After the bullet was surgically removed, forensic analysis revealed that it had likely come from the weapon of one of the guards.

The conspirators were eventually apprehended and charged with various offenses arising from the attempted robbery. Santiago and Serrano entered guilty pleas; Castro and Molina proceeded to trial. Castro was eventually acquitted of all charges against him. Molina was convicted of conspiring to commit a robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a). He was sentenced to a prison term of 78 months. The Government appeals Molina's sentence pursuant to 18 U.S.C. § 3742(b).

Discussion

I. Enhancement for Discharge of Firearm

Under the Guidelines provision for robbery offenses, the base offense level is increased when a firearm is used during a robbery. U.S.S.G. § 2B3.1(b)(2). The amount of the enhancement depends on the manner in which the weapon is used:

(A) If a firearm was discharged, increase by 7 levels; (B) if a firearm was otherwise used, increase by 6 levels; (C) if a firearm was brandished, displayed, or possessed, increase by 5 levels....

Id. § 2B3.1(b)(2)(A)-(C). ¹ It is undisputed that Serrano and Santiago discharged their firearms during the robbery attempt. The District Court nonetheless declined to impose a seven-level enhancement on Molina's base offense level. Instead, the Court imposed only a five-level enhancement based on the co-conspirators' "brandish[ing], display[ ], or possess[ion]" of their firearms, because it found that Serrano and Santiago's discharge of their weapons was an event not reasonably foreseeable by Molina.

On this sentencing appeal, we must "accept the findings of fact of the district court unless they are clearly erroneous and ... give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e). This Circuit has held that "[i]ncluded within the 'clearly erroneous' rubric is the question of reasonable foreseeability." United States v. Ekwunoh, 12 F.3d 368, 370 (2d Cir.1993); see United States v. Brumby, 23 F.3d 47, 50 (2d Cir.1994). But see Ekwunoh, 12 F.3d at 373 (Newman, J., concurring) (arguing that reasonable foreseeability is legal issue "fully available for de novo review"). A finding is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quotations and citation omitted). Upon reviewing the "entire evidence" in this case, we are "left with the definite and firm conviction" that the District Court erred in finding that Molina could not have reasonably foreseen that Serrano and Santiago would discharge their weapons during the commission of a robbery of an armored car.

Under the relevant conduct principles of subsection 1B1.3(a)(1)(B), all "reasonably foreseeable acts and omissions of others" in furtherance of the conspiracy may be taken into account to determine a defendant's sentence. See United States v. Medina, 74 F.3d 413, 415 (2d Cir.1996). Therefore, Molina's sentence can be enhanced under subsection 2B3.1(b)(2)(A), based on Serrano's and Santiago's discharge of their firearms, if "(1) the [discharge] was committed in furtherance of the conspiracy, and (2) the [discharge] was reasonably foreseeable [to Molina]." Brumby, 23 F.3d at 50. Because there is no dispute that the weapons were fired to further the aims of the conspiracy, the only question is whether their discharge was reasonably foreseeable to Molina.

The District Court credited Molina's contention that the conspirators' intended plan was not to fire their weapons during the robbery. Implicitly finding that the weapons were discharged only because the original plan went awry when Molina decided to move the double-parked getaway vehicle, the District Court concluded that only a five-level enhancement under subsection 2B3.1(b)(2)(C) was appropriate because "it's not foreseeable that the people [he] associated [with would] act[ ] stupidly" and discharge their firearms.

The District Court also found, however, that Molina knew "that there was a machine gun supplied for the robbery and one of the co-conspirators was carrying that machine gun and it was loaded and that the co-conspirator was prepared to fire it." Indeed, the Court acknowledged that the conspirators knew that they were "up against people carrying sidearms" and that "given the circumstances of the type of people going in with loaded guns one of them could be fired." Although Molina was unarmed and was not present at the scene when the shots were fired, he willingly participated in a...