“Reasonable Foreseeability through Continuous Participation” – Sixth Circuit Clarifies When a Firearm Enhancement Applies in Hobbs Act Robbery Conspiracies

Introduction

In United States v. Kyle Lynn Carson, the U.S. Court of Appeals for the Sixth Circuit addressed whether a six-level sentencing enhancement under U.S.S.G. § 2B3.1(b)(2)(B) (use of a firearm during robbery) may be applied to a conspirator who neither carried nor wielded a gun. The case involved a planned Hobbs Act robbery of a hydroponics retailer in Michigan. Kyle Carson, though not the gunman, participated in planning, surveillance, and post-robbery concealment. On appeal, Carson challenged the enhancement, arguing the firearm use was not “reasonably foreseeable” to him. The Sixth Circuit affirmed, anchoring its decision on Carson’s “continuous and extensive involvement” in every stage of the conspiracy.

Summary of the Judgment

The district court applied a six-level firearm enhancement to Carson’s sentence; guideline range became 70–87 months, varied down to 60 months.
The Sixth Circuit reviewed the factual finding of reasonable foreseeability for clear error, found none, and affirmed the sentence.
Key factual pillars:
- Carson jointly surveyed the target store two weeks earlier;
- Cell-site data and surveillance placed him across the street during the robbery;
- He drove the stolen U-Haul the next day with robbery items inside;
- His own unlawful firearm possession, though not dispositive, bolstered foreseeability.
Holding: Where a defendant is involved from planning through execution and post-offense concealment, the use of a firearm by co-conspirators is “reasonably foreseeable,” even absent direct evidence of prior knowledge.

Analysis

Precedents Cited

The panel situated its analysis within established Sixth Circuit doctrine on conspiratorial liability and foreseeability:

United States v. Barron, 940 F.3d 903 (6th Cir. 2019) – Articulated that under U.S.S.G. § 1B1.3(a)(1)(B), a conspirator is accountable for reasonably foreseeable acts of co-conspirators. Barron supplied the clear-error lens for reviewing foreseeability findings.
United States v. Williamson, 530 F. App’x 402 (6th Cir. 2013) (unpub.) – Endorsed foreseeability where the defendant helped plan and execute a robbery in which another brandished a gun.
United States v. Coop, 2023 WL 3017822 (6th Cir. Apr. 20, 2023) (unpub.) – Affirmed enhancement based on “extensive planning” evidence.
Procedure/standard cases: Angel (2009) and Bullock (2008) on guideline-calculations; Morris (2023) on procedural reasonableness; Young (2017) for the clear-error definition; Anderson v. Bessemer City, 470 U.S. 564 (1985) on appellate deference to plausible factual findings.

Notably, the court declined to rely on out-of-circuit opinions cited by Carson, signalling a preference for intra-circuit authority when evaluating guideline enhancements.

Legal Reasoning

Standard Applied. Under § 2B3.1(b)(2)(B) + § 1B1.3(a)(1)(B), the government must show, by a preponderance of evidence, that co-conspirator firearm use was (1) in furtherance of the jointly undertaken criminal activity and (2) reasonably foreseeable to the defendant.
Factual Matrix Supporting Foreseeability.
- Scope & Duration. Carson was “in from start to finish”— reconnaissance, commission, and getaway.
- Proximity. Cell-site measures and exterior video placed him immediately across from the crime scene, suggesting real-time situational awareness.
- Post-crime Conduct. He assumed custody of the stolen van loaded with restraints (zip-ties) and loot, evidencing knowledge of forceful tactics.
- Firearm Ownership. Discovery of an illegal firearm at his residence added contextual weight (though not controlling) to the idea that gun use would not have been unexpected.
Rejection of “Strict-Liability” Concern. The panel distinguished between a mere assumption that “robberies involve guns” (which would indeed verge on strict liability) and an evidence-based inference grounded in the defendant’s integrated role in the conspiracy.
Alternative Government Theory. The government argued a firearm is inherently foreseeable in Hobbs Act robberies, but the Sixth Circuit purposely left that broader proposition unresolved, resting its affirmance on the narrower, fact-specific rationale.

Impact

The opinion, though “Not Recommended for Publication,” carries persuasive weight and provides granular guidance for district courts and practitioners:

Threshold for Foreseeability. Continuous participation—from planning to escape—can alone justify the firearm enhancement without direct evidence of firearm discussions.
Evidentiary Building Blocks. Cell-site data, surveillance footage, and possession of instrumentalities (e.g., zip-ties) collectively can establish foreseeability by a preponderance.
Firearm Possession vs. Use. A defendant’s own firearm possession is considered probative but not singularly determinative, guarding against automatic enhancements.
Strategic Litigation Note. Defense counsel must proactively challenge each “foreseeability” component with counter-evidence; bare assertions that “I didn’t know” will likely fail if planning and proximity are proven.
Sentencing Disparities Mitigated by Variance. The district court’s downward variance (60 months vs. 70–87) shows that even when an enhancement applies, § 3553(a) factors can temper the final sentence.

Complex Concepts Simplified

Hobbs Act Robbery (18 U.S.C. § 1951). A federal offense involving robbery or extortion that affects interstate commerce.
U.S.S.G. § 2B3.1(b)(2)(B). A provision of the Sentencing Guidelines adding six offense levels if a firearm was “otherwise used” during a robbery.
Reasonable Foreseeability. In conspiratorial sentencing, a defendant is responsible for acts of co-conspirators that a reasonable person in the defendant’s shoes would anticipate as a natural consequence of the criminal plan.
Clear Error Review. An appellate standard deferring to trial-level fact-finding unless the reviewing court is left with a “definite and firm conviction” of mistake.
Preponderance of the Evidence. The evidentiary threshold at sentencing—more likely than not (51% probability).
“Cleaned Up.” A citation signal indicating that internal quotation marks and alterations are omitted for readability.

Conclusion

United States v. Kyle Lynn Carson fortifies a pragmatic, evidence-rich approach to foreseeability in firearm enhancements. The Sixth Circuit underscores that when a defendant’s participation permeates every stage of a robbery conspiracy, it is “plausible” to conclude he could predict armed force, even if he never saw the weapon. Practically, the decision incentivizes defendants to distance themselves from violent overtones or risk substantial guideline escalations. For courts, the opinion confirms that a multi-factor, record-anchored analysis— rather than categorical presumptions—remains the governing method for attributing co-conspirator firearm use at sentencing.