NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 17-3200 _____________

UNITED STATES OF AMERICA

v.

JOHN DOE, Appellant ______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-13-cr-00106-010) District Judge: Hon. Robert D. Mariani ______________

Submitted Under Third Circuit L.A.R. 34.1(a) May 22, 2018 ______________

Before: MCKEE, SHWARTZ and COWEN, Circuit Judges.

(Opinion Filed: May 25, 2018)

______________

OPINION* ______________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SHWARTZ, Circuit Judge.

Defendant John Doe pleaded guilty to conspiring to distribute controlled

substances and was sentenced to 156 months’ imprisonment. On appeal, Doe challenges

the District Court’s application of a two-level enhancement pursuant to § 3C1.2 of the

United States Sentencing Guidelines for reckless endangerment during flight. For the

reasons that follow, we will affirm.

I

On August 23, 2013, police officers in Fort Lee, New Jersey, were on routine

patrol and observed a vehicle in a motel parking lot whose license plate did not match the

vehicle’s registration number. The officers went to the room associated with the vehicle

and encountered Doe, who gave the officers permission to search the vehicle. During the

search, officers found documents that reflected drug trafficking and/or money laundering.

Doe fled on foot, entered an unmarked police car, drove the car at the officers, struck

them, dragged one of them, and sped away from the scene toward New York City.

A few weeks later, law enforcement found Doe at an apartment complex in

Monroe County, Pennsylvania. A search of the apartment revealed heroin, cocaine,

amphetamines, and more than $17,000 in cash. Doe confessed to obtaining heroin and

other illegal drugs from conspirators in Chicago and Mexico and distributing those drugs

to conspirators in Pennsylvania between 2011 and 2013.

A federal grand jury indicted Doe and others for, among other things, conspiracy

to distribute and possess with intent to distribute controlled substances in Pennsylvania

2 and elsewhere between December 2010 and March 2014. Doe pleaded guilty to the

conspiracy count.

Following his guilty plea, a pre-sentence investigation report was prepared which

recommended a two-level enhancement in his offense level for reckless endangerment

during flight pursuant to § 3C1.2 based on the events of August 23, 2013. Doe objected

to the enhancement. The District Court overruled the objection, and sentenced Doe to

156 months’ imprisonment. Doe appeals the application of the § 3C1.2 enhancement.

II1

Section 3C1.2 provides for a two-level enhancement “[i]f 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[.]” U.S.S.G. § 3C1.2. Doe does not dispute

that his conduct—fleeing on foot after police officers found documents reflecting drug

trafficking and/or money laundering, entering an unmarked police vehicle, driving the

vehicle at the officers, striking them, and dragging one of them as he sped away from the

scene—was reckless and created a substantial risk of death or serious bodily injury to

another person. Rather, he contends the District Court erred by not requiring a nexus

between his reckless conduct and his offense of conviction, and by concluding that, in

1 The District Court had jurisdiction under

. We have jurisdiction under

(a). We “exercise plenary review over [the] [D]istrict [C]ourt’s interpretation of the Guidelines,” United States v. Grier,

(3d Cir. 2007) (en banc), and we “review the District Court’s application of the Guidelines to facts for abuse of discretion and its factual findings for clear error,” United States v. Huynh,

(3d Cir. 2018) (alterations, citation, and internal quotation marks omitted).

3 any event, there was a sufficient nexus to apply the enhancement to Doe’s offense level.

Specifically, Doe asserts that there was no nexus between his reckless conduct and

offense of conviction because his reckless conduct was prompted by a routine police

patrol unrelated to the federal drug charges filed against him. He also asserts that the

recovery of evidence relating to the drug conspiracy less than one month later cannot

retroactively connect his prior reckless conduct to the offense of conviction. We

disagree.

While at least two circuit courts have required a nexus between the reckless

conduct and offense of conviction, United States v. Dial,

(6th Cir.

2008); United States v. Southerland,

(5th Cir. 2005), we need not

decide whether § 3C1.2 requires such a nexus because one exists in this case, see United

States v. Duran,

(9th Cir. 1994) (assuming without deciding that

§ 3C1.2 requires a nexus between the reckless endangerment and the crime of

conviction). The offense of conviction—conspiracy to distribute and possess with intent

to distribute controlled substances—is directly connected to Doe’s reckless

endangerment. He was under investigation for drug trafficking and was an active

participant in the drug conspiracy at the time the police searched his vehicle and found

documents reflecting drug trafficking and/or money laundering activity. Less than a

month later, Doe was found in possession of large quantities of drugs and cash and

admitted to participating in an ongoing multistate and multinational drug conspiracy. It is

therefore reasonable to infer that Doe’s reckless flight on August 23, 2013 was prompted

by his concern that he would be apprehended with evidence of the drug conspiracy.

4 Because there is both temporal and geographic proximity between his reckless conduct

and the offense of conviction and a basis to infer his reckless conduct was associated with

his efforts to avoid apprehension for that offense, the District Court did not clearly err in

applying the two-level enhancement to Doe’s offense level pursuant to § 3C1.2. See

Dial,

(finding sufficient nexus for purposes of § 3C1.2 enhancement

where defendant’s “mindset at the time of his flight” and “the temporal and geographic

proximity between the flight and the conspiracy to distribute methamphetamine”

demonstrated defendant was “attempting to prevent detection of the ongoing

conspiracy”).

III

For the foregoing reasons, we will affirm.

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