NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 15, 2011
Decided August 24, 2011
Before
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐1319
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff‐Appellee, for the Southern District of Illinois.
v. No. 3:10‐CR‐30071‐001‐WDS
DAVID M. HOFFARTH, JR., William D. Stiehl,
Defendant‐Appellant. Judge.
O R D E R
David Hoffarth burglarized a sporting‐goods store in Belleville, Illinois, and made
off with 15 guns. He triggered the store’s alarm during the break‐in and was caught by
police after a brief chase. Hoffarth pleaded guilty to theft of firearms from a federally
licensed dealer,
18 U.S.C. § 922(u), and possession of a firearm by a felon,
id. § 922(g)(1). The
district court increased his offense level by two points for recklessly endangering other
persons while trying to elude the police. See U.S.S.G. § 3C1.2. Hoffarth challenges that
increase on appeal.
Police officers responding to the nighttime alarm saw Hoffarth running from the
store carrying a handgun. The officers ordered him to stop, but he kept running, and they
pursued him on foot. During the chase Hoffarth looked back at the officers, raised the gun
to his head, and said he was suicidal. He then took cover on the back porch of a nearby
No. 11‐1319 Page 2
house, pointed his gun in the direction of one of the officers, and shouted that he would put
down the gun only if the officers killed him. At the time there were six people in the house,
including three children. The officers coaxed Hoffarth to come off the porch, but he was
holding a beer and refused to raise his hands until he finished drinking it. When he
continued resisting arrest, the officers subdued him with a Taser and handcuffed him. They
recovered several guns from Hoffarth and more from the ground nearby, all unloaded.
At sentencing Hoffarth objected to the application of § 3C1.2 as recommended by the
probation officer. That guideline applies if a defendant, in fleeing from police, “recklessly
created a substantial risk of death or serious bodily injury to another person.” U.S.S.G.
§ 3C1.2. Hoffarth pointed out that he didn’t have any bullets and that none of the police
officers actually fired their guns. Thus, he argued, he did not create a substantial risk of
harm to anyone but himself. The government stressed, however, that the officers did not
know that Hoffarth’s guns were unloaded, and—had they fired at him—a bullet might have
hit a resident of the house.
The district court concluded that Hoffarth’s conduct “was clearly a reckless
endangerment” and, after applying the adjustment, sentenced him within the guidelines
range to a total of 90 months’ imprisonment. The court emphasized that Hoffarth fled to the
porch of an occupied house in a residential area, pointed a gun at an officer who could not
have known it was unloaded, and warned that the officers would have to shoot him to get
him to surrender. The police could have responded with gunfire instead of a Taser, the
court remarked, and a stray bullet could have hit a bystander.
In challenging this assessment, Hoffarth insists that “the evidence fails to establish
that any police officer saw him pointing the gun toward the officer.” Instead, Hoffarth
explains, the evidence on point is limited to a sentence in the presentence report stating—in
passive voice—that he “was observed” pointing his gun in the direction of an officer. The
presentence report does not explicitly attribute the observation to one of the pursuing
officers, and so it follows, Hoffarth reasons, that the government never proved that the
officers saw him pointing a gun at them.
We are not persuaded. The application of § 3C1.2 is a factual finding that we review
for clear error, United States v. White,
443 F.3d 582, 592 (7th Cir. 2006); United States v. Lard,
327 F.3d 551, 553 (7th Cir. 2003), and in this case the district court’s determination is amply
supported by the record. The inference fairly arising from the presentence report—indeed,
the only logical inference arising from the report—is that one of the pursuing police officers
reported seeing Hoffarth pointing the gun, and at sentencing he failed to raise any doubt
about that inference. In fact, the criminal complaint filed in this case confirms that inference
by naming the specific officer who saw Hoffarth point the gun.
No. 11‐1319 Page 3
Moreover, no matter who saw Hoffarth pointing the gun, his conduct warranted the
adjustment; even reaching for a gun while running from the police is enough because that
conduct creates a substantial risk that an officer might inadvertently shoot another officer or
a bystander. United States v. Easter,
553 F.3d 519, 523‐24 (7th Cir. 2009); see United States v.
Carter,
601 F.3d 252, 255 (4th Cir. 2010) (upholding adjustment where defendant broke into
private residence); United States v. Bates,
561 F.3d 754, 757 (8th Cir. 2009) (upholding
adjustment where defendant fled through residential neighborhood with gun drawn);
United States v. Brown,
314 F.3d 1216, 1221 (10th Cir. 2003) (upholding adjustment where
defendant hid gun in presence of children). That Hoffarth’s gun was unloaded makes little
difference: displaying a gun, loaded or not, during a crime “creates an immediate danger
that a violent response will ensue.” McLaughlin v. United States,
476 U.S. 16, 17‐18 (1986);
see United States v. Simmons,
581 F.3d 582, 586‐87 (7th Cir. 2009) (concluding that use of
unloaded gun during robbery increased risk that police would hurt bystander); United States
v. McDonald,
521 F.3d 975, 980 (8th Cir. 2008) (concluding that defendant’s lie about
possessing gun increased risk of harm to police); United States v. Smythe,
363 F.3d 127, 129
(2d Cir. 2004) (concluding that “offense‐level enhancements are warranted even where a
weapon is unloaded or inoperative”). And Hoffarth did more than brandish a gun. While
standing on the porch of an occupied house, he goaded police to shoot him by shouting that
he wouldn’t be taken alive; he implied that his gun was loaded by pointing it at himself and
the officers, increasing the risk that police would fire; and he resisted arrest to the point that
officers had to use force to subdue him.
As a final matter, Hoffarth suggests that low intelligence somehow impaired his
awareness that the house might be occupied. He points out that he had to be aware of the
risk created by his conduct to have acted recklessly under the guidelines, see U.S.S.G.
§ 2A1.4, cmt. n.1; id. § 3C1.2, cmt. n.2, and he emphasizes that a psychologist has diagnosed
him with borderline intellectual functioning. But this argument is a nonstarter. Nothing in
the record supports, nor did Hoffarth raise at sentencing, the contention that his impairment
prevented him from appreciating the risk he created in brandishing a gun and forcing an
armed standoff on a porch in a residential neighborhood.
AFFIRMED.
