U.S. v. Robinson

Full title: UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL ROBINSON, Defendant

Court: United States District Court, D. Kansas

Date published: Oct 13, 2004

No. 04-40041-SAC (D. Kan. Oct. 13, 2004)

Opinion

No. 04-40041-SAC.

October 13, 2004

MEMORANDUM AND ORDER

SAM CROW, Senior District Judge

The government has raised one and the defendant has raised two objections to the presentence report (PSR.

Government's first objection

The government's first objection is that a four level increase should be imposed pursuant to Section 2K2.1(b)(5) of the U.S.S.G., because defendant possessed a firearm in connection with another felony offense. The government contends that this increase is warranted because defendant had a firearm in his vehicle while he committed the state felony of fleeing and eluding.

Applicability

Section 2K2.1(b)(5) of the Sentencing Guidelines provides that "[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense . . . increase by 4 levels." U.S.S.G. § 2K2.1(b)(5). A "felony offense" "means any offense (federal, state or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or conviction obtained." U.S.S.G. § 2K2.1 cmt. n. 7.

The court agrees that defendant committed a state felony violation in attempting to elude officers. See KSA § 8-1568. It is also established that defendant possessed a firearm during his commission of that offense. The sole issue is whether defendant possessed the firearm "in connection with" his offense of fleeing and eluding.

Regarding the nexus required between firearm possession and the felony offense, the Tenth Circuit has generally held:

. . . if the weapon facilitated or had the potential to facilitate the underlying felony, then enhancement under § 2K2.1(b)(5) is appropriate." Id. (citing Gomez-Arrellano, 5 F.3d at 466. However, the enhancement is not appropriate if possession of the weapon is coincidental or entirely unrelated to the offense. Walters, 269 F.3d at 1219.

United States v. Brown, 314 F.3d 1216, 1222 (10th Cir. 2003).

Here, defendant possessed an easily accessible, loaded firearm during his car flight from law enforcement officers, and the firearm had the potential to facilitate defendant's flight. See United States. v. Clark, 94 Fed. Appx. 769, 774, 2004 WL 729289, *4 (10th Cir. 2004) (finding possession of a loaded firearm had the potential to facilitate defendant's interstate transportation of a stolen pickup truck); United States v. Brown, 314 F.3d 1216, 1222 (10th Cir. 2003) (affirming enhancement where defendant saw the officer, put his hand down on the gun and hesitated such that the officer could be justified in believing that defendant was trying to decide whether to shoot or whether to run.)

Blakely

Defendant additionally contends that the facts necessary to support this enhancement have not been proven beyond a reasonable doubt to the jury, as required by Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). The government summarily contends that Blakely is inapplicable to the federal sentencing guidelines.

It is correct that the jury was not asked to determine either the facts necessary to support the underlying state felony of fleeing and eluding, or the facts necessary to show that the weapon facilitated or had the potential to facilitate that underlying felony. Although the Supreme Court has not yet ruled that Blakely applies to the federal sentencing guidelines enhancements, the government has not met its burden to show that this enhancement should be applied despite the Blakely decision. See United States v. Conley, 131 F.3d 1387, 1389 (10th Cir. 1997) ("the government bears the burden of proving factors enhancing a sentence by a preponderance of the evidence.") Accordingly, the desired four-point increase pursuant to Section 2K2.1(b)(5) of the USSG shall not be imposed. The court finds it unnecessary to address defendant's contention that applying this enhancement would result in impermissible double counting.

Defendant's first objection

Defendant's first objection is to certain facts contained in the PSR. Defendant first states that the vehicle defendant was driving rolled into a parked car after defendant exited the vehicle. This is immaterial to any sentencing issue.

Defendant additionally denies possessing a firearm, and contends that the information from a citizen who told the police officer he saw defendant toss the firearm upon the porch roof should not be included in the PSR, since it was suppressed at trial. Defendant's denial of possession flies in the face of the jury's finding that defendant possessed the firearm, which was the sole contested issue at trial. The fact that the PSR includes additional evidence of defendant's possession of the firearm, which was not admitted at trial, is immaterial.

Defendant's second objection

Defendant next objects to the enhancement for reckless endangerment during flight, pursuant to § 3C1.2. This two-point enhancement states:

If the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase by 2 levels.

§ 3C1.2.

Factual basis — reckless endangerment

Defendant first contends that there is no factual basis to support this enhancement because no one was actually endangered during defendant's vehicle flight.

The court finds that actual endangerment is not necessary.

"Reckless" refers to "a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation." U.S.S.G. § 2A1.4, cmt. n. 1. Moreover, "the standard of care envisioned by the Guidelines is that of the reasonable person, not the reasonable fleeing criminal suspect." Conley, 131 F.3d at 1389.

United States v. Hampton, 100 Fed. Appx. 792, 794, 2004 WL 1249787, *2 (10th Cir. 2004) (finding enhancement appropriate where defendant, while carrying a loaded gun, rode his bicycle after dark so fast that he crashed, then tried to push his way into an apartment while holding a loaded gun, despite the fact the safety feature was on).

Here, officer Patrick Hannan testified that after he turned on his emergency lights, defendant sped up and pulled away, instead of pulling over. Because the distance was widening between them, the officer accelerated and told dispatch defendant was running from him. Then the officer stated:

I followed [defendant] northbound on Fillmore. At 9^th Street here there's a four-way intersection with stop signs. He didn't stop there. He went through that about 60 miles an hour would be my estimate. And he continued north on Fillmore to 8^th Street, where again he went through 8^th Street, which is a somewhat of a main thoroughfare without stopping.

Dk. 57, p. 11-12. The officer additionally testified that while he was pursuing the vehicle, there were no near misses, and no traffic on any of those streets. Dk. 57, p. 44. He stated, however, "when they start going through stop signs on main streets immediately you obviously become concerned about a wreck being involved with somebody that's not participating or active in this, somebody who just happens to be driving through the area. You got to weigh what's going on, what you want them stopped for against the hazards of the public . . ." Dk. 57, p. 12.

The facts in the present case which give rise to this enhancement are strikingly identical to those in a recent Tenth Circuit case in which the same enhancement was found appropriate. There, an officer

. . . observed a vehicle traveling 63 miles per hour in a 30-mile-per-hour residential zone. It was later determined that Gaither was driving the vehicle. When the officer activated the emergency lights of his patrol car, Gaither accelerated and ran a red light. Gaither finally stopped the vehicle, but then fled on foot. The officer caught Gaither and, after a struggle, was able to handcuff him.

United States v. Ward, 96 Fed.Appx. 615, 628, 2004 WL 909760, *10 (10th Cir. 2004).

The court finds that the defendant's actions in accelerating the vehicle after the officer activated his emergency lights of his patrol car, driving the vehicle at speeds over 60 m.p.h. in a residential zone, and running two stop signs, created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. The facts thus support the enhancement. Blakely

Defendant next contends that the facts supporting such an enhancement were not found by a jury beyond a reasonable doubt, as required by Blakely v. Washington. The government summarily contends that Blakely is inapplicable to the federal sentencing guidelines.

It is correct that the jury was not asked whether defendant accelerated the vehicle after the officer activated his emergency lights of his patrol car, drove the vehicle at speeds over 60 m.p.h. in a residential zone, or ran two stop signs. Further, the jury was not asked to determine what defendant's state of mind was which caused him to flee, or whether a nexus was otherwise shown between defendant's reckless endangerment and his possession of a firearm.

Although the Supreme Court has not yet ruled that Blakely applies to the federal sentencing guidelines enhancements, the government has not met its burden to show that this enhancement should be applied despite the Blakely decision. Accordingly, the two-level increase pursuant to Section 3C1.2 of the U.S.S.G. shall not be imposed. The court finds it unnecessary to address defendant's contention that a nexus is required between the offense of conviction and defendant's flight.

Defendant's total offense level is thus 20, his criminal history category is III, and the guideline range is 41-51 months.

IT IS THEREFORE ORDERED that the government's objection to the PSR is overruled, and that defendant's second objection to the PSR is granted.