Friday, May 23, 2008

Sentence Vacated: Evidence Insufficient to Support 3C1.2 Reckless Endangerment Enhancement

United States v. Gould, No. 06-11058 (5th Cir. May 21, 2008) (Davis, Southwick, Clark, D.J.)

Gould was at a house when a SWAT team showed up to execute a search warrant for drugs. Presumably not wanting to make the officers' acquaintance, Gould fled out foot out the back door past an officer who pointed a gun at him and ordered him to stop. Other officers quickly captured him. The search turned up guns, ammo, and various drugs in the house, in Gould's car, and on his person.

Gould later pleaded guilty to gun and drug charges. His PSR recommended a two-level enhancement under guideline §3C1.2 for reckless endangerment during flight, based on this rationale: "At the time of [Gould’s] arrest, he attempted to evade arrest by running from officers, which had ordered him to stop and had their weapons drawn. The defendant was apprehended after a foot chase ensued with officers." That, along with other calculations, put Gould at a Guidelines range of 168 to 210 months on the drug count. The district court overruled Gould's objection to the reckless endangerment enhancement, and sentenced him to 270 months' imprisonment (210 months for the drug count, plus 60 consecutive months on the gun count).

Gould appealed, arguing that 1) there was insufficient evidence to support the reckless endangerment enhancement, 2) his sentence was unreasonable, and 3) the district court "failed adequately to justify his sentence." The court of appeals declined to address the reasonableness arguments, as it agreed with Gould on the enhancement.

The Government argued that
the facts surrounding Gould’s arrest support the adjustment because Gould’s flight created a more dangerous situation than usually occurs when a suspect evades arrest. For example, both the Wichita Police Department and a SWAT team were involved in execution of the search warrant at a known crack-house – making the situation more chaotic and potentially dangerous when Gould fled. In addition, Gould’s continued flight after officers pulled their weapons and ordered him to stop caused the officers to pursue him with their weapons drawn, increasing the risk of death or serious injury to the officers or others in the area.

The court disagreed, pointing out the lack of any evidence beyond the rationale the PSR offered to support the enhancement:

For example, the record is unclear on how far Gould ran, although the Government stipulated that it was a “short” chase. There is also no description of the area where the chase occurred – although the area was described as a “grass field.”

We reject the Government’s argument that Gould’s fleeing despite the fact that armed officers were instructing him to stop justifies an inference that Gould was acting recklessly. There was no evidence presented that Gould heard the officers order him to stop or that he reacted in a threatening way or made any threatening actions toward the officers as he ran. In fact, there is no evidence that Gould did anything other than run from the house after the officers entered.

(internal cite snipped). The court also pointed to a decision from another circuit in which simply running from police, even when it resulted in armed pursuit, did not justify the enhancement.

The court thus concluded that
[t]he record is too sparse for us to determine whether Gould was reckless. Gould fled for an undefined but admittedly short distance from the officers executing the search warrant. He may have run into a field. We cannot say, considering the record as a whole, that Gould acted recklessly and in a manner that created a substantial risk of injury. The kind of detail missing here can be contrasted with a case in which we sustained use of the enhancement when there was evidence that the fleeing defendant led pursuing officers across four lanes of a busy interstate highway.
(cite banished). Unfortunately, in vacating and remanding for a new sentencing hearing, the court states that "[a]dditional relevant evidence of the flight is admissible on resentencing if the Government has any to offer." There really ought to be a rule against the Government getting a second bite at the apple when it fails to present enough evidence to support an enhancement, especially when it saw fit to rely on such a plainly insufficient basis on the first chomp.

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