United States v. Passmore

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4781
CYNTHIA ANN PASSMORE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-97-55-F)
Argued: September 25, 1998
Decided: October 26, 1998
Before HAMILTON and MICHAEL, Circuit Judges, and
MOON, United States District Judge for the
Western District of Virginia, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: William Arthur Webb, Federal Public Defender, Raleigh,
North Carolina, for Appellant. John Samuel Bowler, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:
Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, John
Howarth Bennett, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Cynthia Ann Passmore, a convicted bank robber, appeals the two-
point enhancement of her offense level as a result of bodily injury to
a victim, specifically, an injury to a state trooper who was hurt when
he fell at the end of the post-robbery chase. We affirm the sentence.
I.
Passmore, along with two accomplices, robbed a bank in Raleigh,
North Carolina. The robbers then led police on a 22-mile car chase
through Raleigh and into Chatham County, at speeds exceeding 100
miles per hour, before their getaway car became stuck in a construc-
tion area. As police officers approached the robbers' car, one of Pass-
more's accomplices, Robert Downey, pointed an airgun at them. The
officers opened fire, killing Downey instantly and wounding Pass-
more.
One of the pursuing police officers was injured at the end of the
chase. As the robbers' car landed in a ditch, State Trooper Scott
Pirilla jumped out of his police car and fell. He injured his head and
knee, necessitating hospital treatment. As a result of the injuries,
Trooper Pirilla missed three days of work, and he had to be assigned
to light duty for a week upon his return.
Passmore pleaded guilty to armed bank robbery and was sentenced
to 120 months imprisonment. In calculating her offense level, the dis-
trict court applied a two-point increase for bodily injury sustained by
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a victim, pursuant to Sentencing Guideline § 2B3.1(b)(3). Passmore
challenges this enhancement, claiming that the officer was not a "vic-
tim" of her crime and that, even if he was, she did not cause his inju-
ries.
II.
We first conclude that Trooper Pirilla was a victim of the bank rob-
bery. The Sentencing Guidelines provide for an increase in offense
level if "any victim sustained bodily injury." U.S.S.G. § 2B3.1(b)(3).
The word "victim" has a fairly broad meaning in the bank robbery
context. Bank robbery involves active violence or threats of violence
and necessarily creates the risk of bodily injury to those in proximity.
United States v. Muhammad, 948 F.2d 1449, 1456 (6th Cir. 1991). Of
course, under a literal construction, only the banking institution itself
would be the victim of a bank robbery. But it is bank employees and
patrons who bear the initial brunt of a robbery. Furthermore, a rob-
bery "cannot be completed without some form of flight or attempted
flight," so is "more naturally understood to include the act of fleeing
and the immediate consequences of such flight." Id. Therefore, the
term "any victim" in § 2B3.1(b)(3) includes "any employee,
bystander, customer, or police officer," id. , injured during a bank rob-
bery or attempted getaway, whose injuries were caused by the robber.
We have previously held that a police officer was not a victim of
the charged offense when he was assaulted while arresting a suspect
for possession of a firearm by a convicted felon. United States v.
Morrow, 925 F.2d 779, 782 (4th Cir. 1991). However, the underlying
crime in Morrow was one of mere possession. The only direct victim
of such a crime is society as a whole. As the Sixth Circuit explained
in Muhammad, the term "victim" must be examined in the context of
the underlying charged offense. The violent nature of the offense of
bank robbery carries with it the inherent prospect that someone could
be injured in the robbery or its aftermath. The Guidelines account for
this, providing for an increase in offense level if"any victim" sustains
bodily injury. U.S.S.G. § 2B3.1(b)(3) (emphasis added). Under the
governing standards, the trooper here was a victim.
III.
Having established that Trooper Pirilla was a victim of the bank
robbery within the meaning of § 2B3.1(b)(3), we must determine if
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Passmore caused his injuries. The two-point increase in offense level
is only proper if her actions were the proximate cause of the injury.
United States v. Molina, 106 F.3d 1118, 1122-23 (2d Cir. 1997).
Passmore's conduct proximately caused Pirilla's injuries if the
harm was a reasonably foreseeable result of her conduct. Id. at 1121.
This requirement ensures that "any variation between the result
intended . . . and the result actually achieved is not so extraordinary
that it would be unfair to hold the defendant responsible for the actual
result." United States v. Spinney, 795 F.2d 1410, 1415 (9th Cir. 1986)
(quoting W. LaFave & A. Scott, Criminal Law § 35 (1972)). Even
accidental injuries may trigger a sentence increase if they are reason-
ably foreseeable. See, e.g., Molina, 106 F.3d at 1122-24 (bystander
accidentally shot by security guard during robbery); United States v.
Fitzwater, 896 F.2d 1009, 1012 (6th Cir. 1990) (bank teller hit head
on cash drawer after robber ordered her to lie on floor).
Again, Passmore led police on a 22-mile car chase along city
streets and highways at speeds of up to 110 miles per hour. At the
conclusion of the chase, one of her accomplices pointed an airgun at
the police, causing them to open fire. It is plainly foreseeable that
someone could be hurt during these events, whether from a car acci-
dent or from a mishap at the end as the police rushed on foot to cap-
ture the robbers. Although Trooper Pirilla's injuries (caused when he
stumbled as he jumped from his car) may be at the outer limits of
foreseeability, it should come as no surprise to Passmore that a police
officer was hurt in the commotion at the close of the high speed
chase. The facts are sufficient to support the finding that Passmore's
conduct was the proximate cause of Trooper Pirilla's injuries.
Passmore's sentence is affirmed.
AFFIRMED
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