United States v. George Earl Young, William Rogers

33 F.3d 31 UNITED STATES of America, Plaintiff-Appellee, v. George Earl YOUNG, William Rogers, Defendants-Appellants. Nos. 93-50186, 93-50229. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 4, 1994. Decided June 7, 1994. Olivia W. Karlin, Deputy Federal Public Defender, Brian Quinn Robbins and Yolanda M. Barrera, Los Angeles, CA, for defendants-appellants. Bruce Riordan, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before: HUG, WIGGINS, and NOONAN, Circuit Judges. Opinion by Judge HUG; Concurrence by Judge WIGGINS. HUG, Circuit Judge: 1 George Young and William Rogers challenge their sentences imposed under the United States Sentencing Guidelines. Each defendant contends that the district court erroneously enhanced his sentence under U.S.S.G. Sec. 3C1.2 for reckless endangerment during flight. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 , and we vacate the sentences and remand for resentencing. I. 2 On July 1, 1992, George Young, William Rogers, and Robert Johnson robbed a Wells Fargo Bank in Ventura, California at gun point. The defendants exited…

Opinion by Judge HUG; Concurrence by Judge WIGGINS.

George Young and William Rogers challenge their sentences imposed under the United States Sentencing Guidelines. Each defendant contends that the district court erroneously enhanced his sentence under U.S.S.G. § 3C1.2 for reckless endangerment during flight. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate the sentences and remand for resentencing.

I.

On July 1, 1992, George Young, William Rogers, and Robert Johnson robbed a Wells Fargo Bank in Ventura, California at gun point. The defendants exited the bank and ran to a parking lot where they had parked a red van. Johnson drove the getaway van from the robbery; Young and Rogers rode as passengers.

Shortly thereafter, the police noticed and followed a red van that matched the description and license plate number of the getaway vehicle. A high-speed chase ensued through a residential area. The van changed lanes in an erratic manner, crossed traffic dividers, and drove into oncoming traffic. The oncoming traffic was forced to swerve to avoid striking the van. Several police units were involved in the pursuit. The chase culminated when the van crashed into a…

concurring separately.

I write separately to emphasize that reckless endangerment during flight includes more than merely driving recklessly from the crime scene.

In this case, it includes the initial retreat from the bank to the parking lot where the red van was parked, and includes the actions by the defendants in seeking to escape after the van had crashed.

We focus in the opinion on the reckless driving of Johnson. We question whether there is evidence that Young and Rogers “aided or abetted, counseled, commanded, induced, procured or willfully caused” Johnson’s admittedly reckless driving. Because we do not find support in the record for such a finding, we properly remand.

But we may be overlooking the separate conduct of Young and Rogers, both before and after the high speed chase. Such conduct does not require the findings necessary to hold the actors for the conduct of others.

A remand for resentencing is proper. The sentencing court should be invited to make explicit findings why Young and Rogers should be held accountable for the reckless driving of Johnson. But in resentencing the appellants, the district court should also make findings as to their independent…