Sentencing — reckless endangerment enhancement

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — reckless endangerment enhancement

Where the defendant fled officers in a high-speed chase, assaulted an officer, and engaged in a four-hour standoff, the district court properly imposed the reckless endangerment enhancement.

“At sentencing, Brown did not contest that he was traveling at a high rate of speed during Officer Fritsche’s pursuit or that he pointed a firearm at the three individuals who followed him out of the hotel as well as the individual who blocked Brown’s path of escape in the hotel parking lot. While speeding excessively, Brown could have lost control and injured other drivers or pedestrians on or near the road. See United States v. Woody, 55 F.3d 1257, 1275 (7th Cir. 1995) (affirming the application of the two-level enhancement where the defendant fled from police and led officers on a highspeed chase); United States v. Velasquez, 67 F.3d 650, 655 (7th Cir. 1995) (holding that flight at a high rate of speed on a residential street is enough to support an enhancement under § 3C1.2). And Brown’s brandishing of the gun during his flight presented a substantial risk that an officer arriving on the scene might discharge his gun in defense, causing injury to one of the hotel guests at the scene or another officer. See United States v. Hoffarth, 432 F. App’x 621, 623 (7th Cir. 2011) (nonprecedential decision) (‘[D]isplaying a gun, loaded or not, during a crime “creates an immediate danger that a violent response will ensue.”’) (quoting McLaughlin v. United States, 476 U.S. 16, 17-18 (1986)); see also United States v. Smythe, 363 F.3d 127, 129 (2d Cir. 2004) (concluding that ‘offense-level enhancements are warranted even where a weapon is unloaded or inoperative.’ (emphasis in original)). Thus, taken together, the undisputed facts surrounding Brown’s flight demonstrate that Brown ‘recklessly created a substantial risk of death or serious bodily injury to another person’ when he fled from law enforcement on the day of his arrest. U.S.S.G. § 3C1.2. Indeed, defense counsel all but conceded as much when he stated at sentencing that ‘whether or not [Brown] tried to shoot anyone or carjack anyone or take a gun doesn’t affect the guideline calculation at all. The Government gets the enhancements that it’s looking for and that probation found without any of those things.’ He was correct. The additional disputed facts contained in the PSR merely bolster the district court’s application of the two-point enhancement while supporting its decision to vary upward from the guidelines range. Consequently, we find no error in the district court’s resolution of the disputed facts or its calculation of Brown’s guidelines range for sentencing.”

Affirmed.

12-3413 U.S. v. Brown

Appeal from the United States District Court for the Southern District of Indiana, Barker, J., Flaum, J.