United States v. Mitchell

United States Court of Appeals,

Eleventh Circuit.

No. 96-8891.

UNITED STATES of America, Plaintiff-Appellee,

v.

James Edward MITCHELL, Defendant-Appellant.

July 24, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:95-CR-
562-1), Robert L. vining, Jr., Judge.

Before ANDERSON and MARCUS, Circuit Judges, and HANCOCK*, Senior District Judge.

MARCUS, Circuit Judge:

Appellant James Edward Mitchell appeals his conviction for bank robbery and the sentence

the district court imposed upon him. Mitchell argues that the jury verdict cannot stand because the

jury's conviction of Mitchell on charges of armed bank robbery irreconcilably conflicts with its

acquittal of Mitchell on charges of using a firearm during the commission of the bank robbery.

Mitchell also contends that he was charged in a single count with violating both 18 U.S.C. § 2113(a)

and 18 U.S.C. § 2113(d), but the jury was not provided with instructions that would enable it to

know that it could convict Mitchell of 18 U.S.C. § 2113(a) as a lesser-included offense of 18 U.S.C.

§ 2113(d). Because conflicting verdicts do not provide a basis for reversal of a conviction, and

because the district court did not err in its instructions to the jury, we decline Mitchell's invitation

to reverse the conviction. We also reject Mitchell's challenge to his sentence, and, accordingly, we

affirm the rulings of the district court.

*
Honorable James H. Hancock, Senior U.S. District Judge for the Northern District of
Alabama, sitting by designation.
 I.

A brief factual description of the robbery is necessary to our analysis. The story begins on

the morning of March 20, 1995, when an armed car-jacker stole a white rental Buick with an

Oklahoma license tag from the businessman who rented it when he stopped to make a telephone call.

Later that morning, four individuals rode in the stolen white Buick to the First Union Bank. When

they arrived, the vehicle occupants rushed into the bank. As this occurred, a witness called 911 to

report an apparent robbery. The robbers burst through the bank doors, shouted that they were

robbing the bank, and ordered all present to drop to the floor. Inside the bank, only an armed

security guard standing in the customer area and two other employees, Karmen Hardnett and

Margaret Ware, were present. Ware observed the largest of the four robbers push a handgun against

the security guard and quickly disarm him. She then dropped to the floor behind the counter.

Hardnett immediately fell to the floor as the robbery began and crawled into the employee lounge

at the far end of the teller counter. There she hid behind a partially open door, from which Hardnett

periodically observed some of the robbers' activities.

Two other robbers vaulted the counter and landed behind the teller line. As they did this,

a gun held by one of the robbers discharged, the bullet passing through the counter and lodging into

the carpet within three feet of Ware. Hardnett watched one of the robbers who had jumped the

counter put his foot on Ware's back and place a gun to her head, while the other searched for money.

When a customer appeared at the drive-through window, the robbers became startled and scrambled

out of the bank, carrying with them the security guard's weapon and more than $6,000 stolen from

the bank.

2
 As the bandits fled the bank, D.R. Jones, a bank customer and off-duty police officer who

had just arrived at the bank, followed the robbers as they sped away in the white Buick to a large

shopping mall parking lot. In the parking lot, Jones observed four men walk away from the getaway

car, pair off, and enter two separate vehicles. When these cars left the mall headed in separate

directions, Jones followed a white Chrysler, which the apparent leader drove. During the pursuit,

Jones enlisted the assistance of a uniformed police officer in a squad car who was responding to the

bank robbery alarm. Within a few minutes, they stopped the Chrysler, and the occupants, Anthony

Hazel and Jonathan Jackson, were arrested. The police found three handguns at the scene of the

arrest, including one belonging to the security guard. Tests later showed that one of the recovered

weapons had been discharged at the bank. Also at the arrest scene, the police found a rental car key

in the Chrysler. Later investigation demonstrated that the key matched the white getaway car stolen

from the Florida businessman and abandoned at the shopping mall.

In October 1995, just before their trial was set to begin, Hazel and Jackson decided to plead

guilty and cooperate. They identified Trevis Ruger as the third robbery participant and the

car-jacker. Through their prior employment at a fast-food restaurant, Hazel and Jackson both knew

Ruger well. Hazel and Jackson could identify the fourth participant only as "James," but they noted

that "James" was Ruger's friend and that "James" had also worked at the fast-food restaurant with

them.

Based on these leads, the Federal Bureau of Investigation ("FBI") identified defendant James

Edward Mitchell as the fourth participant in the bank robbery. Mitchell was arrested in late

3
November 1995, and he was indicted on two counts: (1) violation of 18 U.S.C. §§ 2113(a),1

2113(d),2 and 2,3 and (2) aiding and abetting others who used guns during the bank robbery in

violation of 18 U.S.C. §§ 924(c)4 and 2.

1
18 U.S.C. § 2113(a) provides as follows:

Whoever, by force and violence, or by intimidation, takes, or attempts to take
from the person or presence of another, or obtains or attempts to obtain by
extortion any property or money or any other thing of value belonging to, or in
the care, custody, control, management, or possession of, any bank, credit union,
or any savings and loan association; or

Whoever enters or attempts to enter any bank, credit union, or any savings
and loan association, or any building used in whole or in part as a bank, credit
union, or as a savings and loan association, with intent to commit in such bank,
credit union, or in such savings and loan association, or building, or part thereof,
so used, any felony affecting such bank, credit union, or such savings and loan
association and in violation of any statute of the United States, or any larceny—

Shall be fined under this title or imprisoned not more than twenty years, or
both.
2
18 U.S.C. § 2113(d), in relevant part, provides as follows:

Whoever, in committing, or in attempting to commit, any offense defined in
subsection[ ] (a) ... of this section, assaults any person, or puts in jeopardy the life
of any person by the use of a dangerous weapon or device, shall be fined ... or
imprisoned not more than twenty-five years, or both.
3
18 U.S.C. § 2 provides as follows:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another
would be an offense against the United States, is punishable as a principal.
4
In relevant part, 18 U.S.C. § 924(c) provides as follows:

(c)(1) Whoever, during and in relation to any crime of violence ... (including a crime of violence
... which provides for an enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which he may be prosecuted in a court of the United

4
 In March 1996, Ruger pled guilty to the charges against him and agreed to testify for the

government at Mitchell's trial. At the trial, Hazel, Jackson, and Ruger all identified Mitchell as the

fourth participant in the robbery. They testified that Hazel and Jackson formed the plan and enlisted

Ruger to aid them. Hazel directed that Ruger find a fourth person to participate as well. Mitchell's

co-conspirators testified that on the day before the robbery, the four men met at a Dairy Queen to

plan the event. They drove to the bank site to surveil the area. Ruger also testified that Hazel

supplied guns for Mitchell and him. The four agreed to meet the next morning at a nearby shopping

mall located near the bank. Ruger stated that he picked up Mitchell on the morning of the robbery,

and they drove to the mall to meet the others. At the mall Ruger and Mitchell entered Hazel's car

and drove to the bank, where the group let Jackson out to observe the level of security. Meanwhile,

Ruger stole the white Buick at gunpoint and drove to the bank for Jackson. The two met Hazel and

States, uses or carries a firearm, shall, in addition to the punishment provided for such
crime of violence ..., be sentenced to imprisonment for five years, and if the firearm is a
short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, to
imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or
is equipped with a firearm silencer or firearm muffler, to life imprisonment without
release....

...

(3) For purposes of this subsection the term "crime of violence" means an offense that is a felony
and—

(A) has as an element the use, attempted use, or threatened use of physical
force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of committing
the offense.

5
Mitchell back at the mall. Hazel testified that upon arriving at the bank, Mitchell's job in the robbery

was to enter the bank, remain near the door, and secure the entrance.

Mitchell did not testify at his trial. He did, however, call several witnesses who attempted

to provide an alibi defense for him.

The district court submitted the case to the jury, employing the government's proposed

instructions on the alleged criminal violations without objection from Mitchell. With regard to

Count One, the robbery charges, the district court instructed the jury that, to return a guilty verdict,

it must find, among other facts, "that the Defendant either assaulted or put in jeopardy the life of

some person by the use of a dangerous weapon or device while engaged in taking the property or

money, as charged."5 With respect to Count Two, the district court again instructed the jury

5
In relevant part, the instruction on Count One provided as follows:

Title 18, United States Code, Section 2113(a) and (d), makes it a Federal
crime or offense for anyone to take from the person or presence of someone else
either by force and violence or by intimidation any property or money in the
possession of a federally insured bank and in the process of so doing to assault
any person or put in jeopardy the life of any person by the use of a dangerous
weapon or device.

The Defendant can be found guilty of that offense only if all of the
following facts are proved beyond a reasonable doubt:

First: That the Defendant took from the person or the presence of a person as described in the
indictment, money or property then in the possession of a federally insured bank as
charged;

Second: That the Defendant did so either by means of force or violence or by means of
intimidation;

Third: That the Defendant either assaulted or put in jeopardy the life of some person by the use
of a dangerous weapon or device while engaged in taking the property or money, as
charged; and

6
pursuant to the government's proposed instructions, notably without any objection from defendant.

These instructions provided that, to find Mitchell guilty of carrying or using a gun in violation of

18 U.S.C. § 924(c)(2), the jury must conclude, among other facts, that "the Defendant knowingly

used or carried the firearm described in the indictment while committing [the] crime of violence

[charged in Count One]."6 The district court also provided the jury with a general verdict form.7

Fourth: That the Defendant acted knowingly and willfully.

....
6
In relevant part, the jury instructions on Count Two read as follows:

Title 18, United States Code, Section 924(c)(2), makes it a separate
Federal crime or offense for anyone to use or carry a firearm during and in
relation to the commission of some other Federal crime of violence.

The Defendant can be found guilty of that offense only if all of the
following facts are proved beyond a reasonable doubt:

First: That the Defendant committed the felony offense charged in Count One;

Second: That such offense was a "crime of violence"; and

Third: That the Defendant knowingly used or carried the firearm described in the indictment
while committing such crime of violence.

....
7
The verdict form stated, in relevant part, as follows:

We, the jury, find the defendant, JAMES EDWARD MITCHELL,

as to count one;

as to count two.

....

7
 On the second day of deliberations, the jury sent a note to the district court judge stating that

it was deadlocked. After asking the jury foreperson several questions, the district court instructed

the jury to resume deliberations. Approximately two hours later, the jury returned a verdict

convicting Mitchell of Count One and acquitting him of Count Two.

In sentencing Mitchell, the district court assessed a seven-level adjustment pursuant to

section 2B3.1(b)(2)(A), U.S. Sentencing Guidelines Manual, because a firearm was discharged

during the robbery. Mitchell did not object to the enhancement. Defendant now challenges his

sentence and conviction on appeal.

II.

Whether inconsistent verdicts render a conviction improper constitutes a question of law.

See United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Consequently, we

consider this issue de novo. Because Mitchell did not raise objections to the jury instructions,

verdict form, or seven-level upward adjustment to his sentence, we review these matters for plain

error. United States v. Kramer, 73 F.3d 1067, 1074 (11th Cir.) ("We review assertions of error

which were not objected to at trial for plain error.") (citing Rule 52(b), Fed.R.Crim.P., and United

States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)), cert. denied, ---

U.S. ----, 117 S.Ct. 516, 136 L.Ed.2d 405 (1996); United States v. Stevenson, 68 F.3d 1292, 1294

(11th Cir.1995) ("This Court "consider[s] sentence objections raised for the first time on appeal

under the plain error doctrine to avoid manifest injustice.' ") (quoting United States v. Hansley, 54

F.3d 709, 715 (11th Cir.1995) (quoting United States v. Newsome, 998 F.2d 1571, 1579 (11th

Cir.1993), cert. denied, 510 U.S. 1062, 114 S.Ct. 734, 126 L.Ed.2d 698 (1994)), cert. denied, 516

U.S. 999, 116 S.Ct. 539, 540, 133 L.Ed.2d 444 (1995)).

8
 To find reversible error under the plain error standard, we must conclude that (1) an error

occurred, (2) the error was plain, and (3) the error affected substantial rights. See United States v.

Vazquez, 53 F.3d 1216, 1221 (11th Cir.1995); Olano, 507 U.S. at 733-34, 113 S.Ct. 1770. Error

exists where a legal rule was violated during the district court proceedings, and the defendant did

not knowingly and intelligently waive his right to object to the violation. See id. at 733-34, 113

S.Ct. 1770. " "Plain' is synonymous with "clear' or, equivalently, "obvious.' " Id. at 734, 113 S.Ct.

1770. Accordingly, the Supreme Court has stated that a court of appeals may not correct an error

pursuant to Rule 52(b) "unless the error is clear under current law." Id. The Supreme Court has

recently clarified this statement of the law to find error, in addition, in cases where, although no

error occurred under the clearly settled law at the time of trial, the ruling in question is clearly

contrary to the law at the time of appeal. See Johnson v. United States, 520 U.S. 461, 117 S.Ct.

1544, 1549, 137 L.Ed.2d 718 (1997). Finally, where the first two prongs of the plain error rule

established by Olano are satisfied, the defendant bears the burden of demonstrating that the plain

error " "affec[ted] substantial rights.' " Olano, 507 U.S. at 734, 113 S.Ct. 1770 (quoting Rule 52(a),

Fed.R.Crim.P.). In most cases, this means that the "error must have been prejudicial: It must have

affected the outcome of the district court proceedings." Id. Where all of these elements are

demonstrated, we have discretion to order correction of the error and will do so " "in those

circumstances in which a miscarriage of justice would otherwise result.' " See id. at 736, 113 S.Ct.

1770. We will, for example, correct a plain forfeited error when it results in the conviction or

sentencing of an actually innocent defendant. See id. Additionally, we will reverse for plain error

affecting substantial rights "if the error "so seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.' " See id.

9
 III.

A.

Mitchell first argues that we should reverse his conviction because the jury returned

inconsistent verdicts. Specifically, Mitchell notes that the jury acquitted him of violating 18 U.S.C.

§ 924(c), which provides additional penalties for carrying a firearm during the commission of

specified crimes, including violation of 18 U.S.C. § 2113(d), yet the jury found Mitchell guilty of

violating 18 U.S.C. § 2113(d), which prohibits individuals from "put[ting] in jeopardy the life of any

person by the use of a dangerous weapon or device." Arguing that it is a logical impossibility to be

not guilty of violating section 924(c), and, at the same time, be guilty of violating section 2113(d),

Mitchell contends that his conviction must be reversed.

In support of his contention, Mitchell cites to United States v. Nelson, 574 F.2d 277 (5th

Cir.1978). In Nelson, White, the defendant, was indicted on two counts. As in the case under

review, Count One charged White with violations of 18 U.S.C. § 2113(a) and (d), and Count Two

charged him with a violation of § 924(c)(1). Notably, during its deliberations, the jury asked the

trial court the following questions: "Can one person be convicted on Count One and not Count

Two? If one had knowledge of a weapon, would this constitute use of a weapon?" The district court

responded in writing, answering, "1. Yes, one person can be convicted of Count One and be found

"not guilty' of Count Two. 2. If one defendant had knowledge of a weapon this would constitute use

of a weapon so long as that defendant aided and abetted and assisted the other defendant who did

use the weapon." Soon thereafter, the jury returned a verdict of "guilty" on Count One and "not

guilty" on Count Two. On appeal, our predecessor Court found the inconsistent verdicts troubling

and reversed the conviction on 18 U.S.C. § 2113(d). See id. at 279-80.

10
 Noting that the Nelson Court described the inconsistent verdicts in that case as a "logical

impossibility," 574 F.2d at 282-83, Mitchell analogizes his case to Nelson and claims that he, too,

is entitled to reversal of his conviction on Count One. We are not persuaded. Two significant

problems with Mitchell's argument exist: first, Nelson is distinguishable in a most material way

from the instant case; and second, to the extent that the Nelson panel actually rested its reversal of

Nelson's section 2113(d) conviction on the mere fact that the jury returned inconsistent verdicts,

Nelson is no longer good law in light of unambiguous Supreme Court precedent.

First, Nelson plainly differs from the case at hand. In the Nelson case, the defendant claimed,

among other things, that the district court's answers to the jury's questions may have misled the jury

in that Count One included a charge that did not require a gun (§ 2113(a)) and a charge that did (§

2113(d)). Thus, when the district court answered the jury's question regarding finding a person

guilty on Count One and not guilty on Count Two, it may have misled the jury into believing that

its guilty verdict on Count One was really a guilty verdict on the § 2113(a) claim only, not the §

2113(d) claim, thereby allegedly creating the claimed inconsistent verdict. As the Court noted, "But

for the erroneous instruction, the jury would have had two choices. It could have found appellant

White guilty of the 18 U.S.C. § 2113(a) offense simple bank robbery and acquitted him of the 18

U.S.C. § 2113(d) and 18 U.S.C. § 924(c)(1) offenses involving the gun, or it could have convicted

him of the latter two offenses." Nelson, 574 F.2d at 282. Because of the district court's responses

to the jury's questions, it is not at all clear whether the jury thought it was convicting White on

subsection (a) or (d) of Section 2113. "When there is no way of knowing for which offense a

properly instructed jury would have found an appellant guilty," some corrective action is necessary.

Id. (citing Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961)).

11
 The facts of this case, however, are materially distinguishable from those of Nelson. In this

case, unlike the implication created by the district court's answers to the Nelson jury, the district

court here instructed the jury that it must find that a dangerous weapon or device (i.e., a gun, among

other things) was involved in order to convict appellant under Count One. Because jurors take an

oath to follow the law as charged and we "expect[ ] [them] to follow it[,]" United States v. Powell,

469 U.S. 57, 66, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), it is fair to conclude that the jury in the case

at hand convicted appellant of the (d) subsection of Section 2113. Accordingly, unlike in Nelson

and Milanovich, it is not impossible to determine the offense on which the jury convicted Mitchell.

We further note that in the absence of any objection from Mitchell, the failure of the district

court to instruct the jury separately on the lesser-included offense of 18 U.S.C. § 2113(a) did not

constitute error of any sort. Indeed, in a capital murder case, we have stated: "[R]equiring a district

court to give a lesser included offense instruction might be at odds with the trial strategy of defense

counsel. Trial judges should be sensitive to and respectful of such difficult decisions made by

counsel." United States v. Chandler, 996 F.2d 1073, 1099 (11th Cir.1993), cert. denied, 512 U.S.

1227, 114 S.Ct. 2724, 129 L.Ed.2d 848 (1994).

Second, to the extent that the holding in Nelson rests on the proposition that inconsistent

verdicts standing alone justify reversal, it does not remain viable. The Supreme Court has plainly

determined that jury verdicts are "insulate[d] from review" on the ground that they are inconsistent.

United States v. Powell, 469 U.S. 57, 68-69, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984); see also Dunn

v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). In Powell, the defendant was

indicted on a number of counts for violations of the federal narcotics laws. The jury acquitted her

of charges alleging conspiracy to possess cocaine with intent to distribute it and possession of

12
cocaine with intent to distribute it, yet found the defendant guilty of using the telephone in

"committing and in causing and facilitating" the alleged conspiracy and possession in violation of

21 U.S.C. § 843(b). The Ninth Circuit reversed the conviction, finding that an acquittal on the

predicate felony necessarily resulted in the conclusion that insufficient evidence to support the

telephone facilitation conviction existed and mandated acquittal. The Supreme Court disagreed,

holding that consistency in the verdicts is not required.

Several reasons for this rule exist. First, a jury may reach conflicting verdicts through

"mistake, compromise, or lenity." Powell, 469 U.S. at 65, 105 S.Ct. 471. Based on the verdict

alone, it is impossible to determine "whose ox has been gored. Given this uncertainty, and the fact

that the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow

the defendant to receive a new trial on the conviction as a matter of course." Id. Additionally,

determining which party benefitted from an inconsistent verdict would require inquiry into the jury's

thought processes, a procedure courts have always rightly resisted. See id. at 67, 105 S.Ct. 471.

Finally, a defendant is afforded protection against "jury irrationality or error by the independent

review of the sufficiency of the evidence undertaken by the trial and appellate courts." Id. And we

are regularly called upon to assess whether the evidence adduced at trial could support any rational

determination of guilt beyond a reasonable doubt. Id. Moreover, this review is wholly distinct from

the jury's conclusion that the evidence on another count was insufficient. Consequently, as long as

the guilty verdict is supported by sufficient evidence, it must stand, even in the face of an

inconsistent verdict on another count. See id. at 67, 105 S.Ct. 471.

In the case under review, the evidence amply supports the jury finding of guilty as to Count

One. All of the other participants in the bank robbery identified Mitchell as the fourth conspirator.

13
Moreover, they knew him not only from the robbery, but also because all four of the robbers had

previously worked together. Accomplice Ruger also testified that Hazel had provided Mitchell and

him with guns for the robbery. If the jury chose to believe this testimony, which it obviously did,

the jury could have readily found that Mitchell was involved in the robbery. It is also undisputed

that during the course of the robbery, a gun discharged very close to one of the bank's employees.

Consequently, once the jury concluded that Mitchell had engaged in the robbery, sufficient evidence

existed to prove that he had also violated section 2113(d) by jeopardizing a person's life through the

use of a firearm during the commission of the robbery. Because we find that the evidence was

sufficient to support the guilty verdict on Count One, we reject Mitchell's challenge to the

inconsistent verdicts. In short, Mitchell cannot make any of the three showings—error, plain error,

or miscarriage of justice—required to demonstrate plain error meriting reversal or vacatur of his

conviction.

B.

As for Mitchell's challenge to the seven-level enhancement of his sentence, that claim must

also fail. Because, as noted above, Mitchell did not object to the seven-level enhancement of his

sentence below, we review the adjustment for plain error. United States v. Stevenson, 68 F.3d 1292,

1294 (11th Cir.1995). Mitchell claims that the seven-level enhancement for discharge of a firearm

constitutes error because (1) he was acquitted of carrying or using a firearm under section 924(c)

in the commission of the robbery, so an enhancement of his conviction on Count One for the

discharge of a firearm amounts to a sentence "based upon the very conduct [Mitchell] was found not

guilty of under Count Two[,]" Appellant's Brief at 11, and (2) Mitchell did not discharge the firearm,

and the party that did so fired it accidentally. We find Mitchell's arguments to be without merit.

14
 First, in sentencing Mitchell, the district court properly considered the count on which

Mitchell was convicted, not the charge of which he was acquitted. Indeed, for purposes of

sentencing Mitchell on Count One, Mitchell's acquittal on Count Two was irrelevant. Considering

Mitchell's conviction on Count One, we note that the jury found Mitchell guilty of armed robbery

in violation of section 2113(d). To do so under the jury instructions the district court gave, the jury

had to conclude that Mitchell either "assaulted or put in jeopardy the life of some person by the use

of a dangerous weapon or device while engaged in taking the property or money." Moreover, the

evidence was plainly sufficient to support this conclusion. Section 2B3.1(b)(2)(A) of the Sentencing

Guidelines provides for a seven-level increase to the base-offense level applicable to robbery

sentences where "a firearm was discharged." U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(A).

The district court did not err in simply applying the appropriate Sentencing Guideline.

Nor do we find merit in Mitchell's argument that the enhancement should be reversed

because the gun that discharged during the robbery was carried by a co-conspirator. The Sentencing

Guidelines provide that specific offense characteristics, such as the firearm-discharge provision in

the Sentencing Guideline pertaining to robbery (U.S. Sentencing Guidelines Manual, §

2B3.1(b)(2)(A)), "shall be determined on the basis of, [among other things,] in the case of a jointly

undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the

defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable

acts and omissions of others in furtherance of the jointly undertaken criminal activity." United

States Sentencing Guidelines Manual § 1B1.3(a)(1)(B). In this case Ruger squarely testified that

Hazel had provided Mitchell and him with guns at the same time at a robbery-planning meeting the

day before the robbery. This alone made the likelihood of a gun discharging objectively reasonably

15
foreseeable. Moreover, Mitchell was robbing a federally insured bank that was protected by an

armed guard. Indeed, on the facts of this case, the guard was disarmed at gunpoint. The district

court could therefore find that it was objectively reasonably foreseeable that, in the course of armed

robbery of an armed facility, the discharge of a weapon was likely to occur. See United States v.

Molina, 106 F.3d 1118, 1122 (2d Cir.1997) (holding that "it was ... reasonable for [the defendant]

to foresee that, in an encounter between armed robbers and armed guards protecting an armored car,

a shooting was likely to occur."); see also United States v. Triplett, 104 F.3d 1074, 1083 (8th Cir.)

("The Guidelines do not require that the defendant, as opposed to an accomplice or co-conspirator,

have fired the weapon. Rather, there merely must be evidence ... that a weapon was discharged

during the robbery."), cert. denied, --- U.S. ----, 117 S.Ct. 1837, 137 L.Ed.2d 1042 (1997).

Accordingly, we can find no error in the district court's seven-level enhancement of Mitchell's

sentence and need not proceed to the other inquiries under plain-error analysis.

IV.

We therefore uphold Mitchell's conviction under 18 U.S.C. § 2113(d), and conclude that the

district court properly enhanced Mitchell's sentence by seven levels under the Sentencing

Guidelines. Accordingly, the judgment of the district court must be, and is, AFFIRMED.

16