United States v. Derek Lackey
United States v. Derek Lackey
Opinion of the Court
Derek Ray Lackey pleaded guilty to being a felon in possession of ammunition in
I.
At Lackey’s sentencing hearing, the Government presented testimony from Special Agent Amanda Short of the Bureau of Alcohol, Tobacco, Firearms and Explosives to support its argument that the district court should impose a two-level offense enhancement under U.S.S.G. § 3C1.2, for recklessly creating a substantial risk of death or serious bodily injury while fleeing from law enforcement officers. Agent Short was the case agent assigned to Lackey’s case and, although not present for the events leading up to Lackey’s arrest, she had spoken to the three officers involved.
Three officers in two marked police vehicles began to follow Lackey’s truck as he drove north on Fair Oaks Crossing. Lackey drove for a short distance
After turning right onto Royal Lane, Lackey drove east before making a lawful U-turn at one of the first opportunities to do so, and then proceeded west on Royal Lane, back towards the intersection, for approximately 300 feet. As Lackey neared the intersection for the second time, he drove in the far right-hand lane, which was temporarily blocked off due to ongoing construction in the area.
The police report recounts that officers “attempted to stop the vehicle” at the intersection but the parties dispute, and Agent Short was unable to clarify, whether the officers “attempted to stop” Lackey when he first turned right onto Royal Lane, before making a U-turn, or the second time he drove through the intersection, moments before he pulled into the parking lot at 8401 Fair Oaks Crossing. Agent Short affirmed that she did not know when the officers activated their lights and that she did not know when Lackey became aware that he was being followed by law enforcement officers.
Once Lackey stopped in the parking lot, his passenger exited the vehicle, dropped a firearm, and fled on foot towards a nearby creek, escaping police apprehension. Lackey, however, never attempted to flee. Lackey was then placed under arrest as the officers searched his vehicle. During the search, police found a small vial containing a “personal use” amount of PCP, a firearm magazine holding eleven rounds of ammunition that did not match the pistol dropped by Lackey’s passenger, as well as masks, bandanas, and hoods with eye-holes.
After hearing Agent Short’s testimony and the parties’ arguments, the district court overruled Lackey’s objection to the § 3C1.2 enhancement, characterizing the issue as a “close call.” With the two-level offense increase under § 3C1.2, the Guidelines range was calculated as 46 to 57 months. The district court sentenced Lackey to 52 months in prison, followed by a three-year term of supervised release. Lackey timely appealed his sentence.
II.
We review a district court’s factual finding that a defendant acted recklessly for purposes of § 3C1.2 for clear error. See, e.g., United States v. Lugman, 130 F.3d 113, 115-16 (5th Cir. 1997). “A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole.” United States v. Jimenez, 323 F.3d 320, 322-23 (5th Cir. 2003) (quoting United States v. Duncan, 191 F.3d 569, 575 (5th Cir. 1999)).
III.
Pursuant to U.S.S.G. § 3C1.2, “[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,” the district court may increase the offense level by two. “In order to establish that the defendant’s sentence should be enhanced under § 3C1.2, the government must show that the defendant (1) recklessly, (2) created a substantial risk of death or serious bodily injury, (3) to another person, (4) in the course of fleeing from a law enforcement officer, (5) and that this conduct occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.”
For a district court to impose an enhancement under § 3C1.2, the record must contain evidence beyond the mere fact of a suspect’s instinctive flight, from which a court' plausibly may find that the defendant, during flight from law enforcement officers, acted in a manner that recklessly created a substantial risk of death or serious bodily injury. See United States v. Gould, 529 F.3d 274, 277-78 (5th Cir. 2008) (holding that an armed pursuit by officers alone does not justify an enhancement under § 3C1.2). Although the vast majority of our cases upholding enhancements under § 3C1.2 involve evidence that defendants engaged officers in a high-speed car chase or other exceedingly dangerous conduct during flight,
Here, during this brief, below-speed-limit pursuit, the only evidence of “reckless
Further, the record is ambiguous as to when Lackey became aware that officers were following his vehicle and suggests that officers may not have activated their lights until just moments before Lackey pulled his vehicle into a nearby parking lot and submitted to arrest. Indeed, Agent Short summarized the incident by testifying that the officers “just followed [Lackey’s vehicle] for [a] half mile until it came to a stop” and was unable to testify either as to when officers activated their lights or as to when, or whether, Lackey was aware that officers were following him. Additionally, although the pursuit and the red-light traffic violation occurred in a residen-' tial area, there is no evidence whatsoever showing that the area was populated with other drivers or pedestrians at 1:30 am, when the incident took place.
Reviewing the current record as a whole, we cannot conclude that the approximately half-mile, 30-mile-per-hour pursuit, involving one minor traffic violation that occurred at 1:30 am, moments before Lackey stopped his vehicle and submitted to arrest,
Clear error review is highly deferential, but it of course does not render unreviewable the district court’s finding that Lackey recklessly created a substantial risk of death or serious bodily injury. See United States v. Sanders, 343 F.3d 511, 528 (5th Cir. 2003) (“We realize that clear error is a deferential standard of review; however, it is more than a rubber stamp.”). Here, the district court clearly erred in imposing the two-level enhancement under § 3C1.2 because, based on the current record as a whole, we cannot find that it was plausible to conclude that Lackey recklessly created a substantial risk of death or serious bodily injury during flight.
CONCLUSION
For these reasons, we VACATE Lackey’s sentence and REMAND for resen-tencing. On remand, “[additional relevant evidence of the flight is admissible on re-sentencing if the Government has any to offer.” Gould, 529 F.3d at 278.
Pursuant to 5th Cm. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under
. The Government did not offer the testimony of the officers actually involved in Lackey’s arrest.
. As noted, the Dallas Officers were flagged down at 8200 Fair Oaks Crossing, where they first noticed and began to follow Lackey’s vehicle. The officers followed Lackey as he drove northbound from 8200 Fair Oaks Crossing to the intersection at 8400 Fair Oaks Crossing.
. Agent Short affirmed only that there was a temporary barrier of some sort on Royal Lane at the time and she could not say whether there was any damage done to the barrier as a result of Lackey’s path. There is no record evidence that Lackey's route through the right-hand lane was dangerous in any manner, nor is there any indication that he was cited for this conduct or that it was unlawful.
. Agent Short and the PSR characterized this conduct as "running” a red light, but the police report indicates only that Lackey's vehicle turned northbound on Fair Oaks Crossing "without coming to a complete stop at the
. On appeal, Lackey argues that none of the five prongs were met. Here, because we con-elude that the record does not plausibly support the district court’s finding of a reckless creation of a substantial risk of death or serious bodily injury to another person, we need not address the remaining elements.
. See, e.g., Jimenez, 323 F.3d at 321 (upholding an enhancement under § 3Cl.2 where the defendant led police on a high-speed car chase for "approximately three quarters of a mile through both business and residential areas," and after stopping his vehicle "fled from the officers on foot”); see also United States v. Nino, 482 Fed.Appx. 920, 921-22 (5th Cir. 2012) (per curiam) (upholding the enhancement where the defendant, while carrying nine people in the bed of a pickup truck, led police on a high-speed chase on the highway before entering a residential neighborhood, "making two turns in rapid succession at a high rate of speed and running a stop sign”); United States v. Delgado, 302 Fed.Appx. 256, 257 (5th Cir. 2008) (per curiam) (upholding a finding of recklessness where the defendant led "officers on an eight-mile high speed chase at night along Interstate 35 through downtown Fort Worth, Texas”); United States v. Morante, 280 Fed.Appx. 431, 432 (5th Cir. 2008) (per curiam) (upholding enhancement where "Morante’s car was traveling at a ‘high rate of speed,' [ ] his car ‘spun out of control,’ [ ] he hit a parked car belonging to a resident, and[], as a result of the chase, the passenger in his car was killed”); United States v. Thompson, 166 F.3d 341, 1998 WL 912179, at *2 (5th Cir. 1998) (unpublished) (per curiam) (upholding the enhancement where defendants “traveled down a one way street into oncoming traffic and ran several stop signs while the police gave chase").
. See, e.g., United States v. Bardell, 294 Fed.Appx. 881, 881 (5th Cir. 2008) (per curiam) (upholding the enhancement where the defendant “thr[ew] a loaded gun behind a bar where people were standing”); United States v. Villanueva, 69 Fed.Appx. 657, 2003 WL 21355961, at *1 (5th Cir. 2003) (per curiam) (upholding the enhancement where the defendant "thr[ew] ... a bag containing methamphetamine onto a public sidewalk while fleeing from police” because “anyone, including a child, could have picked up the methamphetamine and ingested it”).
. Agent Short testified only that Royal Lane— which Lackey traveled on for approximately 600 feet total (300 feet in each direction)— was generally "busy.” However, Agent Short was unaware of the typical traffic patterns on Royal Lane at 1:30 am.
. As explained supra, the traffic violation occurred when Lackey turned right on red at the intersection at 8400 Fair Oaks Crossing, immediately before he pulled into the apartment complex at 8401 Fair Oaks Crossing, just north of the intersection.
. In Gould, we found that although there was evidence of an armed pursuit involving multiple officers, the record lacked any evidence regarding, for example, "how far [the defendant] ran, ... [the] description of the area where the chase occurred ... [or whether the defendant] 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.” Gould, 529 F.3d at 277. Rejecting the Government's argument that an armed foot chase alone was sufficient to justify the enhancement, we concluded that the "record is too sparse for us to determine whether [the defendant] was reckless.” Id. at 277-78.
Dissenting Opinion
dissenting:
I would not disturb the district court’s factual finding that Lackey’s conduct amounted to reckless endangerment during flight, see United States v. Inigman, 130 F.3d 113, 115 (5th Cir. 1997), above all where he ran a red light on a busy street in a residential area at night. Reviewing the record as a whole, I am not left with a “definite and firm conviction that a mistake has been committed.” Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (internal quotation marks and citation omitted).
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