United States v. Brooks ( 2023 )

Case: 22-30390 Document: 00516741970 Page: 1 Date Filed: 05/08/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 8, 2023
22-30390 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Cedarrick Arenzo Brooks,
Defendant—Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:21-CR-255-1
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Before Elrod, Ho, and Wilson, Circuit Judges.
Per Curiam: *
Cedarrick Arenzo Brooks pled guilty, with a written plea agreement,
to one count of possessing a firearm as a convicted felon. As detailed in
Brooks’s presentence investigation report (“PSR”), the probation officer
added two points to Brooks’s base offense level for recklessly creating a
substantial risk of death or serious bodily injury to another person, pursuant
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-30390
to U.S.S.G. § 3C1.2. He challenges that enhancement. We hold the district
court did not err by applying the enhancement. Accordingly, we affirm.
I.
Brooks was a passenger in a car driven by codefendant Kymmton
Solomon. When law enforcement tried to stop the car, Solomon led the
officers on a high-speed chase before stopping in the middle of traffic. Brooks
then attempted to flee on foot to the parking lot of a Family Dollar, where he
was bitten by a police dog. He briefly escaped the dog and jumped on top of
a parked car, which had a woman and two small children inside. Police then
tased Brooks and apprehended him. Law enforcement found firearms in the
car in which Brooks and Solomon had fled, but not on Brooks’s person.
At sentencing, the district court explained that the two-point
enhancement under § 3C1.2 for reckless endangerment during flight “is
warranted if . . . 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 PSR tied the enhancement to Solomon’s flight
and car chase. Brooks objected to the § 3C1.2 enhancement being applied to
him, as the passenger in Solomon’s car. The court agreed that Brooks was
not responsible for Solomon’s reckless conduct during the high-speed chase.
The court then analyzed “whether or not the enhancement can be [justified]
on the basis of other facts that are clearly outlined in the PSR.” Similarly
concluding there was not a sufficient basis to support the enhancement based
on the firearms found in the car, the court focused on Brooks’s flight on foot.
The district court explained that “the facts surrounding the flight on
foot are certainly . . . sufficient to warrant the application of the two level
enhancement” because “Brooks did not comply with the law enforcement
officers’ commands to stop once the car was stopped and everyone was in
hot pursuit of Brooks and [Solomon].” Applying the enhancement, with the
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others recommended in the PSR, the court sentenced Brooks to 120 months
of imprisonment, below the guideline range 1 but at the statutory maximum,
as well as three years of supervised release.
Brooks filed a timely notice of appeal. He contends that running
across the parking lot and jumping on the parked car does not warrant the
reckless endangerment enhancement. He maintains that jumping on the car
“was nothing more than a natural impulsive act of self-preservation triggered
by being attacked by dogs” that did not create any risk of death or serious
injury to anyone.
II.
Because Brooks objected in the district court, we review that court’s
interpretation of the Guidelines de novo and its factual findings for clear error.
United States v. Deckert, 993 F.3d 399, 401 (5th Cir. 2021). The
determination of what constitutes reckless endangerment for the purposes of
§ 3C1.2 is a finding of fact that this court reviews for clear error. United States
v. Gould, 529 F.3d 274, 276 (5th Cir. 2008). There is no clear error when the
district court’s findings are plausible in light of the entire record. United
States v. Torres-Magana, 938 F.3d 213, 216 (5th Cir. 2019); Gould, 529 F.3d
at 276. Under this “deferential” standard, factual findings “will be deemed
clearly erroneous only if a review of all the evidence leaves this court with the
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1
Brooks’s base offense level was 27. He received an additional six points for
various enhancements, including the two-point enhancement under § 3C1.2 that he now
appeals. This raised his adjusted offense level to 33. His offense level was decreased by
three points for acceptance of responsibility, thus making his total offense level 30.
Accordingly, his guideline range was 121 to 151 months.
Without the two-point enhancement under § 3C1.2, Brooks’s total offense level
would have been 28. This would have changed his guideline range to 97 to 121 months.
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definite and firm conviction that a mistake has been committed.” Torres-
Magana, 938 F.3d at 216 (quotation and citation omitted).
A defendant is subject to the reckless endangerment adjustment if he:
“(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; and (5) that . . . flight was related to the offense the defendant is
convicted of violating.” Gould, 529 F.3d at 276. 2 “[I]nstinctive flight alone
will not support the enhancement, nor will the armed agent’s pursuit.” Id.
at 277 (quoting United States v. Reyes-Oseguera, 106 F.3d 1481, 1484 (9th Cir.
1997)). The enhancement, however, is “not limited . . . to situations
resulting in actual harm or manifesting extremely dangerous conduct by a
defendant.” United States v. Jimenez, 323 F.3d 320, 323 (5th Cir. 2003).
In Gould, we held that the enhancement did not apply when a
defendant simply ignored police orders and fled on foot without further
reckless conduct. 529 F.3d at 277. By contrast, we have upheld the
enhancement in cases where a defendant not only fled on foot but also created
a substantial risk of death or serious bodily injury in the process. E.g., United
States v. Kelley, 40 F.4th 276, 285 (5th Cir. 2022) (holding that the
enhancement was justified when the defendant accidentally fired a gun while
running from police); see also United States v. Gonzalez, No. 20-40776, 2021
WL 3438361, at *3 (5th Cir. Aug. 5, 2021) (per curiam) (upholding
enhancement because defendant fled from an occupied, moving vehicle);
United States v. Villanueva, 69 F. App’x 657 (5th Cir. 2003) (per curiam)
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2
“Recklessness” is elsewhere defined as “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, comment. (n.1);
see § 3C1.2, comment. (n.2) (cross-referencing the commentary to § 2A1.4).
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(affirming enhancement where defendant discarded a bag of
methamphetamine on the sidewalk while fleeing); United States v. Carter, 146
F.3d 867 (5th Cir. 1998) (per curiam) (unpublished) (upholding
enhancement where defendant ran back and forth across four lanes of heavy,
fast-moving traffic).
Here, and in some contrast to Gould, Brooks did not simply flee: After
Solomon stopped the car in the middle of traffic, Brooks ran to the Family
Dollar parking lot (where he was likely to encounter bystanders) and jumped
onto a parked vehicle with a woman and two children inside. Fleeing from
law enforcement to avoid capture generally may not alone merit application
of the enhancement, but Brooks made a conscious and calculated decision to
run into an area that carried substantial risk to other people. Based on the
record before us, and viewing it through our highly deferential standard of
review, we are not left with the “definite and firm conviction that a mistake
has been committed” by the district court’s applying § 3C1.2 in Brooks’s
case. Torres-Magana, 938 F.3d at 216 (internal quotation marks and citation
omitted). Accordingly, the judgment of the district court is
AFFIRMED.
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