United States v. Shane Roush , 527 F. App'x 349 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0507n.06
No. 12-3847
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
May 22, 2013
UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SHANE MATTHEW ROUSH, SOUTHERN DISTRICT OF OHIO
Defendant-Appellant.
/
BEFORE: CLAY and COOK, Circuit Judges; and OLIVER, District Judge.*
CLAY, Circuit Judge. After pleading guilty to cultivation of marijuana, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A)(vii), Defendant Shane Roush was sentenced to a term of 281 months’
imprisonment to be followed by five years of supervised release. Defendant appeals his sentence,
claiming that the district court committed procedural error in imposing it. For the following reasons,
we AFFIRM Defendant’s sentence.
BACKGROUND
Defendant Shane Roush had an ongoing dispute with his neighbor Jeff Levering over the
easement rights between their properties in rural Morrow County, Ohio. On October 21, 2010,
Morrow County Sheriff’s Sergeant Robert Chalfant and Detective Brandon Moore responded to a
*
The Honorable Solomon Oliver, Jr., Chief Judge, United States District Court for the
Northern District of Ohio, sitting by designation.
No. 12-3847
call from Levering complaining that Defendant’s van was blocking Levering’s access to his fields.
Upon arrival, Moore spoke with Defendant, who agreed to move his van; Chalfant then departed.
Moore stayed behind because Levering informed Moore that Defendant was growing
marijuana on Defendant’s property—something Defendant had been doing since 2005. To
investigate Levering’s claim, Moore climbed on top of one of Levering’s grain bins to get a better
view of Defendant’s fields. At that time, Moore observed what he believed to be marijuana growing
in Defendant’s fields. Moore then returned to his vehicle and drove along the fence line to get a
better view of the marijuana. Defendant’s wife observed Moore on the grain bin and driving the
fence line and told her husband. Defendant directed his wife to retrieve his Sig Sauer semiautomatic
assault rifle and ballistic vest.
Defendant exited his house, put on his ballistic vest, and walked toward Moore while
carrying the assault rifle. Defendant then opened fire on Moore, hitting him four times. Defendant
then turned his fire on the Levering family: Levering, his wife, and his son. The Leverings took
cover behind their truck as Moore returned fire, wounding. A later investigation yielded over 1,750
marijuana plants and over 100 firearms from Defendant’s property.
The State of Ohio indicted Defendant and charged him with attempted aggravated murder
and multiple felonious assault counts, as well as marijuana cultivation and trafficking counts. In
December 2010, a federal grand jury in the Southern District of Ohio indicted Defendant for
cultivation of more than 1000 marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(vii),
and discharging a firearm during a drug-trafficking crime, in violation of 18 U.S.C.
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§ 924(c)(1)(A)(i)–(iii). The federal indictment also included a forfeiture count. Due to the
overlapping drug charges, the state dismissed its cultivation and trafficking charges.
On August 22, 2011, Defendant pleaded guilty to the remaining state charges for which he
received a total of 25 years’ imprisonment. Thereafter, Defendant was brought into federal court
pursuant to a writ of habeas corpus ad prosequendum. Defendant pleaded guilty to the cultivation
charge (and the forfeiture), in exchange for a dismissal of the firearms charge and a recommendation
that the state and federal sentences run concurrently.
The pre-sentence report (“PSR”) calculated Defendant’s Guidelines range with a base offense
level of 26 for the 1,750 marijuana plants. See U.S.S.G. § 2D1.1(c)(7). Two points were added for
possession of a dangerous weapon. See id. § 2D1.1(b)(1). Six points were added due to Defendant’s
creation of a substantial risk of serious bodily injury to a law enforcement officer (i.e., the official-
victim enhancement). See id. § 3A1.2(c)(1). The four-level body-armor enhancement was applied.
See id. § 3B1.5(1)–(2). Finally, the PSR added two points for reckless endangerment during flight.
See id. § 3C1.2. After subtracting three points for acceptance of responsibility, see id.
§ 3E1.1(a)–(b), the PSR calculated Defendant’s offense level as 37. Coupled with his criminal
history category of I, this resulted in a Guidelines range of 210–262 months’ imprisonment. See id.
ch. 5, pt. A. The probation officer, who prepared the PSR, also recommended an upward departure,
under U.S.S.G. § 5K2.2, to 300 months. The district court followed the PSR’s recommended
departure, and following a 19-month reduction for time served on the state charge, Defendant was
sentenced to 281 months in prison to be followed by five years of supervised release.
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STANDARD OF REVIEW
We review sentences “for reasonableness under an abuse of discretion standard.” United
States v. Brown, 579 F.3d 672, 677 (6th Cir. 2009). In our review, “[t]he district court’s
interpretation of the advisory Guidelines is reviewed de novo, and its findings of fact are reviewed
for clear error.” Id. The district court commits procedural error by “‘failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51
(2007)).
DISCUSSION
Defendant raises two arguments on appeal. First, he argues that the district court erred in
applying the two-point reckless endangerment enhancement under U.S.S.G. § 3C1.2 to his sentence.
Second, he contends that the district court committed error by applying both the official victim
enhancement under U.S.S.G. § 3A1.2 and departing upward under U.S.S.G. § 5K2.2.
A. Reckless Endangerment under U.S.S.G. § 3C1.2
Section 3C1.2 of the Guidelines provides a two-point enhancement to a defendant’s offense
level “[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 application of this
provision is broader, however, than the text might suggest. The Application Notes to U.S.S.G.
§ 3C1.2 note this breadth and also specify that the enhancement applies to conduct that “includes
preparation for flight” as well as “conduct [that] occurs in the course of resisting arrest.” U.S.S.G.
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§ 3C1.2 app. n. 3. “Although what constitutes reckless endangerment during flight is a mixed
question of law and fact, it is highly fact-based and significant deference to the district court is
required.” United States v. Tasaki, No. 12-5411, 2013 WL 69356, at *1 (6th Cir. Jan. 7, 2013); see
also United States v. Hazelwood, 398 F.3d 792, 796 (6th Cir. 2005). In this case, although the
district court found that Defendant was not literally fleeing because the PSR noted that Defendant
walked towards Moore before he opened fire, the district court did find that the enhancement was
applicable because Defendant’s shooting of Moore and at the Leverings was done in the course of
resisting arrest.
Before turning to the question of whether Defendant’s conduct fits into the § 3C1.2
enhancement, we must first determine which aspect of Defendant’s conduct is being punished by the
application of this enhancement. This threshold determination is necessary because our caselaw
prohibits double counting, which “occurs when precisely the same aspect of the defendant’s conduct
factors into his sentence in two separate ways.” United States v. Battaglia, 624 F.3d 348, 351 (6th
Cir. 2010). In addition to the § 3C1.2 enhancement, the district court applied the six-point official-
victim enhancement under U.S.S.G. § 3A1.2 to Defendant’s sentence. This enhancement applies
where a defendant assaults a law enforcement officer “in a manner creating a substantial risk of
serious bodily injury.” U.S.S.G. § 3A1.2(c)(1). While it is clear that the shooting of Officer Moore
would fall within the ambit of § 3C1.2, the shooting of Moore also supports the district court’s
application of § 3A1.2. Therefore, in order to validly apply both §§ 3A1.2 and 3C1.2 and avoid a
double-counting problem, there must be another aspect of Defendant’s conduct, distinct from the
shooting at Moore, to support the additional application of the § 3C1.2 enhancement. The only
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conduct that can support the application of the § 3C1.2 enhancement is Defendant’s shooting at the
Leverings because the application of the official-victim enhancement covers Defendant’s shooting
of Officer Moore.
As to the applicability of § 3C1.2 to Defendant’s shooting at the Leverings, we first agree
with the district court (and Defendant) that this conduct was not done “during flight” because fleeing,
as commonly understood, requires that a person “run away . . . from trouble or danger,” The
American Heritage Dictionary of the English Language 672 (4th ed. 2000), and the PSR indicated
that Defendant walked towards the Leverings when he was shooting. But, as noted above, the
enhancement is broader than just reckless endangerment during flight; it includes reckless
endangerment “in the course of resisting arrest.” U.S.S.G. § 3C1.2 app. n. 3. We conclude that
Defendant’s shooting of the Leverings was done in the course of resisting arrest.
Defendant knew that by growing marijuana he was engaged in the commission of a crime
under both state and federal law. See 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii); Ohio Rev. Code
§ 2925.04(A); see also Ohio Rev. Code § 2925.11(A). He also knew that because Officer Moore
had viewed the marijuana growing in his fields, Moore had probable cause to arrest him on the spot.
See Virginia v. Moore, 553 U.S. 164, 171 (2008) (“[W]hen an officer has probable cause to believe
a person committed even a minor crime in his presence, . . . [t]he arrest is constitutionally
reasonable.”). Therefore, when Defendant exited his house with his assault rifle and ballistics vest
and opened fire, the only plausible explanation for his conduct is that he was attempting to prevent
Moore from arresting him (i.e., resisting Moore’s imminent arrest). It was in the course of resisting
the arrest from Moore that Defendant shot at the Leverings. Cf. United States v. Swoape, 31 F.3d
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482, 483 (7th Cir. 1994) (citing United States v. Mills, 1 F.3d 414 (6th Cir. 1993)) (finding § 3C1.2’s
enhancement applicable where the defendant endangered civilians by engaging in a parking lot
shootout with police in the presence of bystanders after robbing a bank). Finally, this is not a case
of a continuous course of conduct like in United States v. Hayes, 135 F.3d 435 (6th Cir. 1998), where
we reversed the application of enhancements under both § 3A1.2 and § 3C1.2 to a defendant who
injured a police officer as well as a child by “rapid[ly] accelerati[ng his] car in the direction of other
occupied vehicles.” Id. at 438. In this case, the PSR reveals that Defendant turned his body in order
to fire at the Leverings, demonstrating that although the conduct represented a single course of
resisting arrest from Moore, the shooting at the Leverings was a separate and distinct act.
B. Upward Departure under § 5K2.2
The Supreme Court has held that “it is an incorrect application of the Guidelines for a district
court to depart from the applicable sentencing range based on a factor that the Commission has
already fully considered in establishing the guideline range.” Williams v. United States, 503 U.S.
193, 200 (1992). Defendant contends that the basis for the district court’s departure under U.S.S.G.
§ 5K2.2 was the same as the basis for applying the official victim enhancement under U.S.S.G.
§ 3A1.2. This issue requires us to compare § 3A1.2 and § 5K2.2 to determine if § 5K2.2’s conduct
was already “fully considered” by § 3A1.2.
The official-victim enhancement under § 3A1.2 applies “[i]f, in a manner creating a
substantial risk of serious bodily injury, the defendant . . . knowing or having reasonable cause to
believe that a person was a law enforcement officer, assault[s] such officer during the course of the
offense.” U.S.S.G. § 3A1.2(c)(1). By contrast, § 5K2.2 provides:
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If significant physical injury resulted, the court may increase the sentence above the
authorized guideline range. The extent of the increase ordinarily should depend on
the extent of the injury, the degree to which it may prove permanent, and the extent
to which the injury was intended or knowingly risked. When the victim suffers a
major, permanent disability and when such injury was intentionally inflicted, a
substantial departure may be appropriate. . . .
In this case, the district court had before it evidence about the permanent groin and leg injuries
inflicted on Moore by Defendant. Both of these injuries will require lifelong treatment.1 The district
court departed upward because of the “significant” and “severe” nature of the injuries sustained by
Moore.
The comparison of the two Guidelines provisions demonstrates that they punish different
aspects of Defendant’s conduct. By its terms, § 3A1.2 can apply regardless of whether an officer
sustains serious injuries. In this case, the district court departed upwards under § 5K2.2 based on
the severity of the actual injuries suffered by Moore. Therefore, because § 3A1.2 is focused on the
risk of bodily injury while § 5K2.2 is focused on the extent of the actual injury, there was no
impermissible double counting in the district court’s § 5K2.2 departure in addition to its application
of the § 3A1.2 enhancement. See United States v. Levy, 250 F.3d 1015, 1018–19 (6th Cir. 2001)
(upholding the application of § 2J1.2(b)(1) due to a physical injury as well as an upward departure
under § 5K2.2 due to the extent of the injury).
CONCLUSION
For the foregoing reasons, we AFFIRM Defendant’s sentence.
1
After countless surgeries, Moore’s leg injuries still cause him to walk with a limp, likely for
the rest of his life. Additionally, treatment of Moore’s groin injury will require lifelong hormone
therapy.
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