After a trial, Anael Sainfil was convicted of bank robbery on a theory that he was the lookout, who stayed outside the bank. At sentencing, the court enhanced his guidelines because a co-conspirator, who entered the bank, wore a bulletproof vest. On appeal, two judges upheld the enhancement, saying that even though Mr. Sainfil didn’t know about the bulletproof vest, it was foreseeable that someone would wear a bulletproof vest during an armed robbery.
Judge Jacobs dissented, saying that the majority “sweeps too broadly” by essentially holding that is is always foreseeable that someone else may wear body armor. Jacobs writes: “True, body armor is not (yet) a fashion statement and is rarely (if ever) worn when there is no risk of gunfire. But that does not mean that whenever there is a risk of gunfire the use of body armor follows.” According to Jacobs, the majority “reduces reasonable foreseeability to a guess, and results in an unjustified piling on of sentencing enhancements.”
All three judges held that the rest of Mr. Sainfil’s arguments should be rejected, agreeing that Mr. Sainfil’s lawyer was not ineffective, even though he failed to move to suppress Mr. Sainfil’s pre-Miranda statement. His lawyer also seemingly advanced an inconsistent defense, arguing both that Mr. Sainfil “was outside the bank” but that didn’t “mean he participated in the robbery,” and that Mr. Sainfil was not outside the bank and that the person in the government’s surveillance video was a different race than Mr. Sainfil. But, the Circuit did not address the merits of this strategy, simply saying that there is a strong presumption that counsel’s conduct was within he “wide range” of effective assistance.