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United States Court of Appeals
Fifth Circuit
F I L E D
REVISED APRIL 14, 2004
April 9, 2004
In the
Charles R. Fulbruge III
United States Court of Appeals
Clerk
for the Fifth Circuit
_______________
m 03-10644
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
COREY MITCHELL,
ALSO KNOWN AS CORY MITCHELL,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 4:01-CR-185-A
_________________________
Before HIGGINBOTHAM and SMITH,
§ 2B3.1(b)(3)(C), following his conviction of
Circuit Judges.*
bank robbery and using and carrying a firearm
in relation to that crime. The district court im-
PER CURIAM:
posed a six-level enhancement because a cus-
tomer who was in the bank during the robbery
Corey Mitchell appeals the application of a
suffered a permanently debilitating stroke that
sentencing enhancement, pursuant to U.S.S.G.
was caused by the acts of Mitchell and his as-
sociates in the course of the robbery. Mitchell
claims that this injury was not a reasonably
* This matter is decided by a quorum. See
foreseeable result of the crime and that there-
28 U.S.C. § 46(d).

fore the sentencing enhancement should not
bery, a victim sustains permanent or life-
apply. Because an injury resulting from crimi-
threatening bodily injury. Mitchell contends
nal conduct need not be reasonably foreseeable
that the court erred in applying the
to be the proper basis for a sentencing en-
enhancement and in refusing to allow
hancement under § 2B3.1(b)(3)(C), we affirm.
Mitchell's attorney to ask Zaccard whether
Mitchell had threatened her.
I.
III.
Mitchell and two associates entered the
We review the district court's interpretation
bank wearing masks and gloves and carrying
and application of the sentencing guidelines de
firearms, and while one associate took cash
novo and its findings of fact for clear error.
from teller drawers, and the other waved his
United States v. Hawkins, 87 F.3d 722 (5th
handgun, Mitchell brandished his gun. When
Cir. 1996). Mitchell concedes that Zaccard's
the men entered the bank, t hey were seen by
impairments constitute "Permanent or Life
customer Linda Zaccard, who tried to flee by
Threatening Bodily Injury" under the
the back door but was told by an employee
sentencing guidelines and that the robbery was
that she would have to return. Upon her re-
the cause in fact of Zaccard's stroke. Mitchell
turn, Zaccard observed the robbery in progress
contends, however, that for § 2B3.1(b)(3) to
and suffered a stroke that left her with perma-
apply, the injury must be a reasonably
nent physical damage, including hearing loss,
foreseeable consequence of the defendant's
brain damage, vision problems, limited feeling
conduct. Mitchell asserts that Zaccard's
on her left side, panic attacks, anxiety, and in-
stroke was not foreseeable, that Mitchell is no
ability to walk without a walker.
more culpable than would be a bank robber
who did not have a victim who suffered a
II.
stroke, and that applying the enhancement
Mitchell pleaded guilty of bank robbery and
effective punishes him for his "bad luck."
aiding and abetting, 18 U.S.C. §§ 2113(a) and
2 (count 4), and using and carrying a firearm in
Whether § 2B3.1(b)(3) contains a
relation to a crime of violence, that is, bank
culpability requirement is an issue of first
robbery, 18 U.S.C. § 924(c)(1)(A)(i) (count
impression in this circuit. Mitchell urges us to
5). At the sentencing hearing, Zaccard testi-
adopt a standard under which an enhancement
fied to her injury. On cross-examination,
is tied to the demonstrable culpability of the
Mitchell's attorney asked whether it was true
defendant and is available only if the
that Mitchell had not deliberately tried to hurt
defendant's conduct can be shown to be the
her or single her out. The court sustained the
proximate cause of the injury. Specifically,
government's objection to the question.
Mitchell urges us to adopt the standard set
forth in United States v. Molina, 106 F.3d
The court accepted the finding in the pre-
1118 (2d Cir. 1997).
sentence report that Zaccard had sustained se-
rious bodily injury caused directly by the rob-
In Molina, a bystander was accidentally
bers' conduct. Over Mitchell's objection, the
shot by an armored-car guard in a shootout
court applied a six-level increase pursuant to
with Molina's co-conspirators during a
U.S.S.G §2B3.1(b)(3)(C), which provides for
robbery. Molina was sitting in the getaway car
such an increase where, in the course of a rob-
at the time of the shootout, so the injury could
2

not be the result of his acts. The court
of sentencing accountability under this
analyzed the case under U.S.S.G. §1B1.3(a)-
guideline are not always the same as the
(1)(b), which specifies that offense
principles and limits of criminal liability."
characteristics are to be determined by "all
U.S.S.G. §1B1.3, comment. (n.1). Therefore,
reasonably foreseeable acts and omissions of
unless a provision of the guidelines contains an
others in furtherance of the jointly undertaken
explicit requirement of culpability, we will not
criminal activity." The court held that the
recognize such a requirement.
victim's injury "resulted from" the acts of
Molina's co-conspirators within the meaning
A plain reading of § 2B3.1(b)(3)(C) reveals
of § 2B3.1(b)(3)(C), despite that fact that
that an increase is mandated "[i]f any victim
none of them fired the bullet that hit the
sustained bodily injury." It contains no
victim, because the injury was a reasonably
requirement that the injury be reasonably
foreseeable consequence of their actions.
foreseeable or that the defendant be culpable
for the injury beyond committing the base
Molina provides no guidance, however, for
offense. Similarly, § 1B1.3(a)(3) states that
a case in which the injury was not reasonably
determinations are to be based on "all harm
foreseeable, aside from a remark in passing
that resulted from the acts and omissions
that "punishing a defendant more severely for
specified in subsection (a)(1) and (a)(2) . . . ."
foreseeable harms flowing from criminal con-
These guidelines contain no additional
duct that intentionally or knowingly risked
culpability requirement. Thus, a defendant is
those harmsSSfor instance, in the felony-
strictly liable for any injury a victim suffers as
murder contextSSis not an unusual aspect of
a result of his acts.
Anglo-American criminal jurisprudence."
Molina, 106 F.3d at 1125.
Because there is no doubt that Mitchell act-
ed in the robbery, and no contention that Zac-
Although this statement is true, as far as it
card's stroke was caused by an unforeseeable
describes common law criminal culpability, we
act of a co-conspirator, Mitchell's sentence
do not agree that reasonable foreseeability is a
must be based on harm that resulted from the
requirement for the imposition of an en-
crime. Therefore, the district court did not err
hancement under the sentencing guidelines.
in applying the six-level enhancement.
This court has refused to import common law
principles of culpability into its interpretation
IV.
of the guidelines. See United States v. Carba-
We review the exclusion of sentencing evi-
jal, 290 F.3d 277, 283-84 (5th Cir. 2002).
dence for abuse of discretion. Carbajal, 290
F.3d at 287. Mitchell contends that the district
Rather, our interpretation is subject to or-
court improperly excluded evidence of
dinary rules of statutory construction, with at-
whether Mitchell threatened Zaccard
tention to the plain meaning of the guidelines
specifically. Such evidence would have been
as written. See United States v. Boudreau,
both irrelevant and cumulative. Therefore, the
250 F.3d 279, 285 (5th Cir. 2001). Because
court did not abuse its discretion by sustaining
we recognize the guidelines' commentary as
the objection.
authoritative, id., we note that the commentary
explicitly states that "the principles and limits
AFFIRMED.
3