United States v. Kevin Dennings
Opinion
*234 In this appeal, Kevin Lee Dennings contends that the district court improperly calculated his Sentencing Guidelines range by including an offense characteristic enhancement for reckless endangerment during flight under U.S.S.G. § 3C1.2. For the reasons set out below, we affirm.
I.
In March 2017, Dennings approached a man while wearing a t-shirt around his head and face. The man observed Dennings pull a firearm out of his pocket. Believing he was being robbed, the man punched Dennings. In the scuffle that followed, Dennings' firearm discharged twice, although it's not clear whether the discharge was intentional or accidental. No one was injured by the gunfire.
When Dennings heard police sirens, he disengaged from the scuffle and fled. A police officer in the area saw Dennings running with a "garment over his face" and pursued him. J.A. 78. The officer stated that during the chase, he observed "that Dennings' right hand was not empty and freely swinging like his left hand, but [the officer] was unable to determine if Dennings was digging in his pocket or holding onto something." J.A. 78. Dennings ignored the officer's repeated instructions to stop, but at some point Dennings fell to the ground and the officer landed on top of him. Although Dennings said he "gave up," he was laying on his right arm and was "hesitant to relinquish control of it." J.A. 79. Police then discovered the loaded firearm in Dennings' jacket pocket.
A grand jury indicted Dennings on the charge of being a felon in possession of a firearm, in violation of
Most of the presentence investigation report (the "PSR") was uncontested. For instance, Dennings did not challenge the PSR's description of the offense conduct. Nor did he object to the PSR setting his criminal history at V or the base offense level at twenty and then modified upwards seven levels because the firearm was discharged and downwards by three levels because of Dennings' acceptance of responsibility.
But Dennings did object to the imposition of a two-level enhancement to his offense level for "recklessly creat[ing] a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer" under U.S.S.G. § 3C1.2. He asserted that although he had fled from police, flight while possessing a firearm in the pocket of his coat was insufficient to create a substantial *235 risk of death or serious bodily injury.
The district court considered this argument, but denied Dennings' objection, stating:
Dennings fled from the police while carrying a loaded gun, and the gun had recently been discharged on the same date in another action, and he was fleeing from the officers. And I believe that compares to the basis [for applying the enhancement] in the Fourth Circuit ... and ... reinforced at least by two other circuits. There is no circuit that I find that has followed [Dennings' view of the Guidelines].
J.A. 46. Based on that decision, the district court observed that Dennings' total offense level would be set at twenty-six, thereby establishing a Guidelines range of 110 to 137 months' imprisonment, which was capped by the statutory maximum of 120 months' imprisonment. After hearing from the parties on the
Dennings noted a timely appeal, and we have jurisdiction under
II.
We review sentences "under a deferential abuse-of-discretion standard."
Gall v. United States
,
On appeal, Dennings argues the district court miscalculated his Guidelines range because it erroneously imposed the two-level enhancement under § 3C1.2. Because instinctive flight is not enough to warrant imposition of the enhancement,
United States v.John
,
III.
Our review begins with the text of § 3C1.2, which states: "If the defendant recklessly created a substantial risk of *236 death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase [the offense level] by 2 levels." U.S.S.G. § 3C1.2. The application notes elaborate that "reckless" has the same definition as used in the involuntary manslaughter provision, see app. n.2, which describes "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, app. n.4. 2
We have limited case law considering the scope of § 3C1.2 and have not previously examined § 3C1.2 's applicability to armed flight on foot in a published opinion. But in
United States v. Carter
,
We have also issued several unpublished cases involving armed flight on foot and have affirmed the district court's imposition of § 3C1.2 's enhancement when the defendant fled while "holding a loaded firearm,"
United States v. Page
,
Of course, none of these cases are binding on us, save to the extent their reasoning is persuasive.
Collins v. Pond Creek Mining Co.
,
We do not need to reassess whether mere armed flight would warrant application of § 3C1.2 because Dennings did not engage in mere armed flight. Instead, as in the above-cited cases, his situation involved flight-plus-something more. Specifically, the PSR-which Dennings did not challenge as to its factual findings 3 -recounts that he fled from police sirens after having discharged a firearm. The police officer who gave chase "observed [him] wearing a garment over his face, running." J.A. 78. During the chase, the police officer noticed that Dennings' "right hand was not empty and freely swinging like his left hand," but he could not determine if Dennings "was digging into his pocket or holding onto something." J.A. 78. Dennings twice ignored the police officer's instructions to stop. And once the two men were on the ground, Dennings "was lying on his right arm and was hesitant to relinquish control of it." J.A. 79. The firearm was later recovered from Dennings' jacket pocket. In sum, the record reflects that while Dennings was running, he behaved differently with his right hand than his left, his right hand was holding or reaching near a firearm located in his jacket pocket, and he "was hesitant" in relinquishing control *238 of his right arm when that arm was also on or near a firearm.
Rather than being mere "instinctive flight," Dennings' conduct created a substantial risk of death or serious bodily injury as required for § 3C1.2 to apply. "[E]ndangering others during flight or in the course of resisting arrest involves active, willful behavior; in contrast, mere flight or disagreeableness during an encounter involves more passive or instinctive conduct."
John
,
Furthermore, Dennings' conduct was reckless. The police officer had no way of knowing the intent behind his movements, including the possibility that Dennings was reaching for a firearm. Dennings thus did not exercise reasonable care by running with a loaded firearm after being ordered to stop and moving his hands in a way that drew attention to the risk he was reaching for a firearm. Accordingly, the district court did not err in imposing the § 3C1.2 enhancement because Dennings' behavior "carrie[d] an obvious risk" that the situation "might escalate to the point that a firearm [was] used, or discharge[d] accidentally."
Williams
,
Our conclusion is supported by decisions in several sister circuits that armed flight on foot coupled with hand movements toward or near a firearm hidden on the defendant's person can satisfy the conditions for imposing § 3C1.2 's enhancement.
See
United States v. Matchett
,
For example, in
United States v. Bates
,
Dennings, like the defendant in Bates , ignored repeated commands from a police officer to stop running, continued to flee on foot while armed with a loaded weapon, and appeared to be holding or reaching toward his right jacket pocket, where a loaded firearm was later discovered. This conduct satisfies § 3C1.2 's requirement of recklessly creating a substantial risk of death or serious bodily injury even though more egregious conduct also falls within the scope of the Guideline.
IV.
For the reasons stated above, we hold that the district court did not commit procedural error by including § 3C1.2 's two-level enhancement in calculating Dennings' Guidelines range. Accordingly, we affirm the judgment of the district court.
AFFIRMED
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Floyd and Senior Judge Traxler joined.
We have omitted internal quotation marks, alterations, and citations here and throughout this opinion, unless otherwise noted.
Dennings challenges only whether his conduct "recklessly created a substantial risk of death or serious bodily injury." He does not challenge that his acts occurred "in the course of fleeing from a law enforcement officer." See J.A. 44 (agreeing with the district court during the sentencing hearing that Dennings "resisted arrest"); U.S.S.G. § 3C1.2 app. n.3 (stating that "during flight" should be "construed broadly and includes preparation for flight" as well as conduct that "occurs in the course of resisting arrest").
To the extent that Dennings contends on appeal that the Court cannot rely on the PSR's recitation of the offense conduct, we disagree. The record demonstrates that Dennings' sole objection in the district court was whether the facts described in the PSR merited imposition of § 3C1.2 's enhancement. While the district court and Dennings engaged in a colloquy about the legal significance of those facts, at no time did he challenge the PSR's factual recitation of the offense conduct. When a defendant fails to object to the PSR's factual findings, the district court may rely on them without engaging in further inquiry.
E.g.
,
United States v. Revels
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellee, v. Kevin Lee DENNINGS, Defendant - Appellant.
- Cited By
- 25 cases
- Status
- Published