United States v. Mitchell

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED
U.S. COURT OF APPEALS
No. 96-8891 ELEVENTH CIRCUIT
________________________ 2/18/03
THOMAS K. KAHN
D. C. Docket No. 1:95-CR-562-1 CLERK

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES EDWARD MITCHELL,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(July 24, 1998)

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

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

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.

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

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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.

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

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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 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

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

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

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 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

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 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

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

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.

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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

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 assualted or put in
jeopardy the life of some person by the use of a
dangerous weapon or device while engaged in

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district court again instructed the jury 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

taking the property or money, as charged; and

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;

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 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 (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 (1993)), cert. denied, ___ U.S. ___, 117 S. Ct.

516 (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

_______________as to count two.

. . . .
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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 (1994)), cert. denied, 516 U.S. 999 (1995)).

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.

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. “‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’” Id. at 734.

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,

___ U.S. ___, 117 S. Ct. 1544, 1549 (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 (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.

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at 736. 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.

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

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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.

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

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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 (1961)).

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 (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.

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§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 (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 (1984); see also Dunn

v. United States, 284 U.S. 390 (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 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. Based on the verdict alone, it is

impossible to determine “whose ox has been gored. Given this uncertainty, and the fact that

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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. 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.

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. 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

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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.

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

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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 foreseeable. Moreover, Mitchell was robbing a federally insured bank that was

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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 (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.

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