United States v. Young , 893 F.3d 777 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 26, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 17-8059
CLIFFORD J. YOUNG,
Defendant-Appellant.
_________________________________
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 1:17-CR-00051-SWS-1)
_________________________________
Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, with him on the briefs), Denver, Colorado, for Defendant-
Appellant.
Jason M. Conder, Assistant United States Attorney (Mark A. Klaassen,
United States Attorney, with him on the brief), Lander, Wyoming, for
Plaintiff-Appellee.
_________________________________
Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
This appeal involves a sentencing enhancement imposed after a
federal conviction. At sentencing, the district court enhanced Mr. Clifford
Young’s guideline range for recklessly endangering others while fleeing
from a law-enforcement officer. See U.S. Sentencing Guidelines Manual §
3C1.2 (two-level increase in the offense level). The issue on appeal is
whether the district court’s factual findings sufficed to trigger the
enhancement.
The facts are largely undisputed. Mr. Young fled from the police.
During the flight, he threatened to shoot if the police took action. They
took action anyway, using “spike strips” to bring Mr. Young’s vehicle to
an eventual stop. But Mr. Young refused to surrender, engaging in an
armed standoff on the side of the highway. This conduct provided an
adequate basis for the enhancement; we therefore affirm.
I. Background
The events unfolded when Mr. Young said that he would commit
suicide in front of his ex-girlfriend and began driving toward her house. A
friend alerted police officers, who tried to stop Mr. Young. He fled with
the police in pursuit. Mr. Young did not speed or otherwise drive
recklessly during the chase. But while driving, Mr. Young threatened to
shoot the police if they took action.
Roughly 40 minutes into the pursuit, the police deployed spike strips
to puncture the tires of Mr. Young’s car. The spike strips worked, and Mr.
Young’s car eventually stopped. But Mr. Young remained in his car for
roughly 4-½ hours before surrendering.
2
Mr. Young was convicted of possessing a firearm as a convicted
felon. See 18 U.S.C. § 922(g)(1). At sentencing, the district court applied
an enhancement for reckless endangerment, concluding that Mr. Young’s
actions had recklessly created a substantial risk of death or injury to
others. See U.S. Sentencing Guidelines Manual § 3C1.2. Mr. Young
appeals the application of this enhancement.
II. Standard of Review
The parties disagree over the standard of review. The government
asks us to apply the clear-error standard. See United States v. Brown, 314
F.3d 1216, 1221 (10th Cir. 2003). Mr. Young urges us to engage in de novo
review.
In his briefing and at oral argument, Mr. Young stressed that he is
not challenging any of the district court’s factual findings; instead, he
accepts the findings of fact and argues solely that the facts are insufficient
as a matter of law to warrant the enhancement. Therefore, we apply de
novo review to Mr. Young’s challenge. See United States v. Hamilton, 587
F.3d 1199, 1222 (10th Cir. 2009) (stating that when a defendant argues that
“the facts found by the district court are insufficient as a matter of law to
warrant an enhancement, we must conduct a de novo review”).
III. Application of the Reckless-Endangerment Enhancement
Mr. Young challenges the application of the reckless-endangerment
enhancement. This enhancement applies when a defendant “recklessly
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create[s] a substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.” U.S.
Sentencing Guidelines Manual § 3C1.2.
In finding that the enhancement applied, the district court relied in
part on Mr. Young’s threat to shoot pursuing police officers and refusal to
surrender. While fleeing, Mr. Young told a police dispatcher that “if police
took any action he would return with gunfire” and “he knew officers were
wearing bullet proof vests, but he had hollow point ammunition, and was a
good shot.” R. vol. II, at 40. The court found that
 this threat had recklessly endangered the pursuing officers and
 Mr. Young’s refusal to surrender himself or his weapon during
the standoff had recklessly endangered pursuing officers. 1
Mr. Young counters with two arguments:
1. Verbal threats cannot constitute reckless endangerment.
2. The standoff is immaterial because it did not take place while
Mr. Young was fleeing.
We reject both arguments.
1
The district court also relied on other factors, such as Mr. Young’s
flight, the officers’ deployment of spike strips, Mr. Young’s possession of
a firearm, and his statements suggesting an intent to commit “suicide by
cop.” R. vol. III, at 47. We need not address the impact of these factors.
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A. The combination of Mr. Young’s threat and the subsequent
standoff created a substantial risk of death or serious bodily
injury to another person.
Mr. Young’s first argument is that the threat involved only verbal
communication rather than an overt action like brandishing or shooting a
gun. To Mr. Young, the distinction matters because the enhancement is
triggered only if the defendant does something to create a risk rather than
threaten to do something that would create a risk. In light of this
distinction, Mr. Young insists that a threat to shoot would not trigger the
enhancement.
We agree that the enhancement applies only when a defendant
actually creates a substantial risk. See U.S. Sentencing Guidelines Manual
§ 3C1.2; see also United States v. Bell, 953 F.2d 6, 10 (1st Cir. 1992)
(“Section 3C1.2 punishes the act of creating a risk of death, not merely the
intent to create such a risk.”). The resulting issue is whether Mr. Young’s
threat created a substantial risk of harm when he later engaged in a
standoff with the police.
The threat created a dangerous situation for the officers as they
pursued Mr. Young. The police were on alert, knowing that he was armed
and had expressed an intention to shoot if they were to take action. They
took action anyway, deploying spike strips. When Mr. Young ran over the
spike strips, losing tire pressure and coming to an eventual halt, the police
had reason to fear grave harm. Mr. Young had already threatened to shoot
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the police officers if they were to take action, and they had now taken
action. 2
The danger intensified during the standoff, with the police trying to
coax Mr. Young out of his car. He could have fired at any time, and the
police were presumably aware of their vulnerability. They too could have
shot, fearing that Mr. Young would carry out his threat. And if the police
were to shoot, they could have accidentally shot a fellow police officer.
This risk supports application of the enhancement. See United States v.
McDonald, 521 F.3d 975, 979–80 (8th Cir. 2008) (applying the
enhancement to defendants who had barricaded themselves in a hotel room
for two hours, claimed to have a gun, and threw chairs out of the window);
United States v. Campbell, 42 F.3d 1199, 1205–06 (9th Cir. 1994)
(applying the enhancement to a defendant who armed and barricaded
himself inside a house for twelve hours and threatened to kill officers).
Thus, the combination of the threat and standoff provided sufficient
support for the district court’s determination that Mr. Young had recklessly
endangered another person. 3
2
Mr. Young questions the existence of evidence that he knew that the
police had used spike strips. But the district court could reasonably infer
that Mr. Young would have learned of the spike strips when they punctured
his tires and stopped his car.
3
Mr. Young argues that the district court erred in concluding that the
general public had been endangered because the court made no findings
that bystanders were present during the chase. We need not address this
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B. Mr. Young’s standoff with the police occurred “in the
course of fleeing.”
Mr. Young also asserts that we cannot consider the armed standoff
because it did not occur “in the course of fleeing from a law enforcement
officer.” U.S. Sentencing Guidelines Manual § 3C1.2. Mr. Young concedes
that he was fleeing while driving on the highway, but he insists that he was
no longer fleeing once his car stopped. Mr. Young reads the guideline too
narrowly.
The guideline commentary states: “‘During flight’ is to be construed
broadly and includes preparation for flight. Therefore, this adjustment also
is applicable where the conduct occurs in the course of resisting arrest.”
Id. § 3C1.2 cmt. 3. Mr. Young was resisting arrest during the standoff,
disobeying police commands to exit his vehicle.
Mr. Young argues that the guideline commentary refers only to
attempts to flee and denies that he was attempting to flee during the
standoff. But he has misread the commentary, which encompasses efforts
to resist arrest. Based on this commentary, courts have concluded that
resisting arrest—even without an attempt or preparation to flee—qualifies
as flight from law enforcement. See United States v. McDonald, 521 F.3d
975, 979–80 (8th Cir. 2008) (concluding that the term “during flight”
argument; even if Mr. Young were correct, the risk to pursuing officers
would suffice for the enhancement. See U.S. Sentencing Guidelines Manual
§ 3C1.2 (requiring the creation of a risk of harm to “another person”).
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applied to defendants who had barricaded themselves in a hotel room);
United States v. Campbell, 42 F.3d 1199, 1205–06 (9th Cir. 1994)
(concluding that the term “during flight” applied to a defendant who had
barricaded himself inside a house and engaged in a twelve-hour armed
standoff with police).
Like those courts, we conclude that the term “fleeing” is not limited
to an attempt or preparation to flee. We therefore conclude that Mr. Young
was fleeing when he refused to surrender and engaged in a standoff with
police officers.
* * *
Mr. Young fled from police, refusing to surrender as he drove for
roughly 40 minutes on the highway and engaged in a standoff for roughly
4-½ hours. During that time, Mr. Young informed police that he had a gun
and threatened to shoot if they took any action. And they did take action by
deploying spike strips. Thus, the district court did not err in applying the
sentencing enhancement.
IV. Conclusion
We conclude that
 the enhancement was supported by Mr. Young’s threat to shoot
and his subsequent standoff with the police and
 Mr. Young’s standoff occurred in the course of fleeing from
police.
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Therefore, the district court did not err in applying the reckless-
endangerment enhancement.
Affirmed.
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