United States v. Telly Byrd , 689 F.3d 636 ( 2012 )


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  •                          RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit Rule 206
    File Name: 12a0243p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    Plaintiff-Appellee, -
    UNITED STATES OF AMERICA,
    -
    -
    -
    No. 11-6165
    v.
    ,
    >
    -
    Defendant-Appellant. -
    TELLY BYRD,
    N
    Appeal from the United States District Court
    for the Western District of Kentucky at Louisville.
    No. 3:11-cr-44-1—Thomas B. Russell, District Judge.
    Decided and Filed: August 3, 2012
    Before: COOK and STRANCH, Circuit Judges; STAMP, District Judge.*
    _________________
    COUNSEL
    ON BRIEF: Frank W. Heft, Jr., Jamie L. Haworth, OFFICE OF THE FEDERAL
    DEFENDER, Louisville, Kentucky, for Appellant. Terry M. Cushing, UNITED
    STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee.
    _________________
    OPINION
    _________________
    JANE B. STRANCH, Circuit Judge. Telly Byrd argues that his sentence for
    bank robbery is procedurally unreasonable. Specifically, he contends that the district
    court erred in applying a two-level enhancement under § 3C1.2 of the U.S. Sentencing
    Guidelines (U.S.S.G.) for reckless endangerment during flight. For the reasons set forth
    below, we AFFIRM the judgment of the district court.
    *
    The Honorable Frederick P. Stamp, Senior United States District Judge for the Northern District
    of West Virginia, sitting by designation.
    1
    No. 11-6165        United States v. Byrd                                          Page 2
    I. BACKGROUND
    In March 2011, Byrd drove Kawain Woods to a bank in Louisville, Kentucky.
    Woods entered the bank, jumped over the counter, and grabbed $2,150 from three teller
    drawers. Byrd honked the horn, and Woods returned to the Toyota Corolla.
    Byrd and Woods got away before police arrived. But a witness followed them
    to a nearby apartment complex, where they got into a Mercury Mountaineer driven by
    Siddeeq Abdul-Jalil, Byrd’s half brother. The witness—now following the second
    getaway car—called and told the police where the robbers were. Once the police arrived
    and tried to stop the Mountaineer, Abdul-Jalil sped away at over 90 miles per hour,
    running through several red lights. The police gave chase, and eventually Abdul-Jalil
    lost control of the car, crashing into an embankment. The three robbers then fled on
    foot, jumping several fences and running through several yards. Woods and Abdul-Jalil
    escaped, but Byrd was caught. The police found and arrested Woods and Abdul-Jalil
    some days later.
    Byrd pled guilty to robbing the bank, see 
    18 U.S.C. § 2113
    (a). The Presentence
    Report (PSR) calculated a Guidelines offense level of 21. That included a two-level
    enhancement under Guidelines § 3C1.2 for recklessly endangering others during the
    bank-robbery flight (hereafter, the “reckless-endangerment enhancement”). It also
    included a two-level reduction under § 3E1.1(a) for Byrd accepting responsibility and
    an additional one-level reduction under § 3E1.1(b) because the probation officer
    anticipated that the government would file the required motion “stating that [Byrd] ha[d]
    assisted authorities in the investigation or prosecution of his own misconduct by timely
    notifying authorities of his intention to enter a plea of guilty, thereby permitting the
    government to avoid preparing for trial and permitting the government and the court to
    allocate their resources efficiently.” U.S.S.G. § 3E1.1(b) (emphasis added). But because
    No. 11-6165             United States v. Byrd                                                        Page 3
    the government did not move for this one-level reduction, the Guidelines offense level
    was actually 22.1
    Byrd’s criminal history was extensive and produced a criminal-history category
    of IV. It included two prior convictions where Byrd and others were involved in flights
    similar to the flight in question. The first was a 1995 robbery conviction. Fleeing from
    that robbery, Byrd and his codefendants (which included another brother, Lorenzo Byrd)
    led the police on a high-speed chase that ended in the car crashing. The second was a
    2003 conviction also related to robbery. Byrd and Abdul-Jalil fled in a vehicle with the
    police chasing them, refused to stop, and tossed two guns from the vehicle.2
    Byrd’s criminal-history category and offense level yielded a Guidelines range of
    63-78 months’ imprisonment.                 At sentencing, Byrd objected to the reckless-
    endangerment enhancement.               He argued that he was merely a passenger in the
    Mountaineer and that more than reasonable foreseeability is required to impose the
    reckless-endangerment enhancement. The government instead had to prove that he
    directly or actively participated in the reckless flight itself, not just the bank robbery.
    Byrd contended there was no evidence that he had done so.
    The district court agreed that neither reasonable foreseeability nor merely
    participating in the chase by virtue of being a passenger was enough to impose the
    enhancement. But it found that there was enough evidence to infer that Byrd “was
    responsible for or brought about some of the driver’s conduct in some way.” And it
    made specific factual findings discussed in more detail below supporting that conclusion.
    1
    The government stated that it was not moving for this one-level reduction because Byrd did not
    give a statement to law enforcement about the criminal conduct of his accomplices. He instead admitted
    only his own criminal conduct. The problem with the government’s reason is that the Guidelines on their
    face require only that the defendant assist “in the investigation or prosecution of his own misconduct.”
    U.S.S.G. § 3E1.1(b) (emphasis added).
    2
    The PSR actually says that “the defendants [Byrd and Abdul-Jalil] refused to stop and tossed
    two handguns from their vehicles.” (Emphasis added.) This implies that Byrd and Abdul-Jalil each fled
    in their own vehicle. But the next sentence in the PSR refers to “the vehicle [that] had been reported
    stolen.” (Emphasis added.) This could mean either that there was only one vehicle or that only one of the
    two vehicles had been stolen. The district court’s remarks at sentencing show that it assumed there was
    just one vehicle. Because this factual finding by the district court is not clearly erroneous, we adopt it for
    purposes of this appeal. See United States v. Battaglia, 
    624 F.3d 348
    , 350 (6th Cir. 2010) (ruling that the
    district court’s factual findings are reviewed under the clearly erroneous standard).
    No. 11-6165         United States v. Byrd                                          Page 4
    Accordingly, the court overruled Byrd’s objection and applied the two-level
    enhancement for Byrd’s reckless endangerment during flight.
    The court disagreed with the government’s reasons for declining to move to
    reduce Byrd’s offense level by one for accepting responsibility under Guidelines
    § 3E1.1(b) and therefore varied down from an offense level of 22 to 21. It sentenced
    Byrd to 57 months’ imprisonment, which is the low end of the resulting Guidelines
    range.
    This appeal followed.
    II. ANALYSIS
    The issue on appeal is whether the reckless-endangerment enhancement should
    have been applied. Although Byrd concedes that Abdul-Jalil drove recklessly, Byrd
    argues that the enhancement should not apply to him because he was a passenger and
    there was no evidence that he actively participated in the reckless flight. He contends
    that his sentence is therefore procedurally unreasonable.
    Criminal sentences must be procedurally and substantively reasonable. United
    States v. Stubblefield, 
    682 F.3d 502
    , 510 (6th Cir. 2012). We determine reasonableness
    under the deferential abuse-of-discretion standard. 
    Id.
     One factor we assess when
    determining procedural reasonableness is “whether the district court properly calculated
    the Guidelines range.” Battaglia, 642 F.3d at 350-51. “If the district court misinterprets
    the Guidelines or miscalculates the Guidelines range, then the resulting sentence is
    procedurally unreasonable.” Stubblefield, 682 F.3d at 510. We review the court’s legal
    interpretation of the Guidelines de novo and its factual findings under the clearly
    erroneous standard. Id. A factual finding is clearly erroneous when the reviewing court
    is left with the definite and firm conviction that a mistake has been made.
    United States v. Lucas, 
    640 F.3d 168
    , 173 (6th Cir. 2011).
    The district court’s determination that Byrd was responsible for Abdul-Jalil’s
    reckless driving is a factual finding. See United States v. Conley, 
    131 F.3d 1387
    , 1389
    (10th Cir. 1997) (using the clear-error standard to review the district court’s
    No. 11-6165        United States v. Byrd                                           Page 5
    determination that the defendant passengers were responsible for the driver’s reckless
    driving); United States v. Lipsey, 
    62 F.3d 1134
    , 1135-36 (9th Cir. 1995) (using the clear-
    error standard—which the court stated is applied to the district court’s factual
    findings—to review “whether defendant engaged in reckless endangerment in the
    process of flight”). “And the government bears the burden to prove, by a preponderance
    of the evidence, that a particular sentencing enhancement applies.” Stubblefield,
    682 F.3d at 510.
    Section 3C1.2 of the Guidelines states that “[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, increase by 2 levels.” A defendant is responsible
    for the reckless conduct of others under § 3C1.2 only if “the defendant aided or abetted,
    counseled, commanded, induced, procured, or wilfully caused” that conduct. U.S.S.G.
    § 3C1.2 cmt. n.5. To apply this enhancement to a passenger based on the driver’s
    reckless conduct, the district court must specifically find that the passenger “was
    responsible for or brought about the driver’s conduct in some way,” and it must explain
    why. United States v. Young, 
    33 F.3d 31
    , 32-33 (9th Cir. 1994); accord United States
    v. Chong, 
    285 F.3d 343
    , 346 (4th Cir. 2002) (applying the enhancement to a passenger
    based on the driver’s reckless conduct requires “some form of direct or active
    participation” in the reckless driving by the passenger); United States v. Cook, 
    181 F.3d 1232
    , 1235 (11th Cir. 1999) (same); Conley, 
    131 F.3d at 1390
     (same); United States v.
    Lipsey, 
    62 F.3d 1134
    , 1136 (9th Cir. 1995) (same). The court can infer that the
    passenger caused or encouraged the reckless driving “based on conduct occurring before,
    during, or after a high-speed chase.” Conley, 
    131 F.3d at 1390
     (brackets and internal
    quotation marks omitted); accord 
    id. at 1391
    . That a reckless getaway is a reasonably
    foreseeable outcome of the underlying crime, however, “is not enough by itself to
    support [the] enhancement.” E.g., Conley, 
    131 F.3d at 1390
    .
    At the sentencing hearing in the present case, the district court found that the
    record established “more than just a reasonable foreseeability of reckless conduct to get
    away.” The court focused on several facts. Byrd was the initial getaway driver.
    No. 11-6165        United States v. Byrd                                            Page 6
    He drove Woods to the bank to rob it, honked his horn to signal Woods to get back in
    the car, and then drove to the waiting Mountaineer so they could switch vehicles. Byrd
    got in the Mountaineer and continued to participate in the escape by car. After the high-
    speed chase ended with Abdul-Jalil crashing the Mountaineer, Byrd continued to flee on
    foot. The district court stated that these facts are enough to support the enhancement.
    But it also observed that Byrd had a record of similar vehicular flights from the police.
    In 1995, he participated in a high-speed chase that ended in the suspects crashing the car;
    in 2003, Byrd and Abdul-Jalil fled in a vehicle with the police chasing them, refused to
    stop, and tossed two guns from the vehicle.
    The court did not clearly err in inferring that Byrd caused or encouraged Abdul-
    Jalil’s reckless flight for purposes of § 3C1.2, and it therefore properly applied the
    enhancement. Byrd vociferously protests that there is no direct evidence that Byrd
    caused or encouraged Abdul-Jalil’s reckless driving. True enough, but direct evidence
    is not required. The necessary conduct by Byrd—namely, that he caused or encouraged
    the reckless driving—may be inferred from all the circumstances surrounding the
    robbery and flight. Conley, 
    131 F.3d at 1390-91
    . In Conley, the Tenth Circuit affirmed
    imposing the reckless-endangerment enhancement despite there being no direct evidence
    that the defendant passengers encouraged or caused the reckless driving. 
    Id. at 1391
    .
    The district court had inferred the passengers’ responsibility for the driver’s reckless
    conduct, and the Tenth Circuit concluded that the record was “more than sufficient to
    support [those] findings.” 
    Id.
    The record in the present case similarly shows that the inferences drawn by the
    district court are not clearly erroneous. As the Ninth Circuit observed, “inferences may
    be drawn . . . when several bank robbers jump into a getaway vehicle and drive away
    attempting to elude arrest, and thereafter continue to flee when the vehicle stops.”
    Young, 
    33 F.3d at 33
    . Though the Ninth Circuit in Young acknowledged that these
    inferences are “not conclusive,” 
    id.,
     that does not undermine our holding. The Ninth
    Circuit was not holding that these inferences were insufficient to support applying the
    reckless-endangerment enhancement. Rather, the court was explaining why it is
    No. 11-6165         United States v. Byrd                                            Page 7
    imperative for a district court to provide specific findings supporting its decision to
    apply the enhancement. 
    Id.
     (“Without the requisite findings, we cannot adequately
    determine whether the district court committed clear error in applying the enhancement
    to the defendant’s conduct.”). Because the inferences are not conclusive—which is
    another way of saying other inferences could be drawn from those same facts—the
    district court must tell the reviewing court that it drew them. Unlike the district court
    in Young, the district court in the present case did tell us why it applied the enhancement,
    and its reasoning is not clearly erroneous.
    Byrd consciously planned and participated in a robbery that would entail
    employee witnesses who likely had access to alarms. Leaving the bank quickly was
    therefore likely part of the plan. This inference is supported by Byrd honking the horn
    to signal Woods to hurry up and leave the bank. Byrd then drove to the waiting
    Mountaineer and willingly got in, continuing to participate in the escape. Byrd’s
    continued participation in the flight—which up to this time had been nonreckless—does
    not necessarily establish the crucial fact: namely, that he actively participated in the
    ensuing reckless flight. But the direct evidence of his active participation in the
    nonreckless portion of the flight are facts that the district court can—and did—consider
    in making its ultimate finding. Once the reckless, high-speed chase ended, Byrd
    continued to flee on foot.
    All of these facts show Byrd’s desire to evade capture, from which one could
    infer that Byrd encouraged or supported Abdul-Jalil’s reckless driving, which was also
    motivated by a desire to escape. Indeed, Byrd and the others were attempting to
    successfully rob a bank—a very serious crime—providing them with a “motive to take
    desperate—and reckless—measures to flee and elude capture.” Conley, 
    131 F.3d at 1391
    . That the reckless flight did not happen until Abdul-Jalil drove the Mountaineer
    is not dispositive because there were no police present to give chase when Byrd fled the
    bank in the Corolla. Under these circumstances, Byrd driving nonrecklessly makes
    sense because reckless driving would call attention to the robbers at a time when it
    appeared to them that they had made a clean getaway.
    No. 11-6165         United States v. Byrd                                             Page 8
    Finally, there was evidence that Byrd had participated in reckless flights in the
    past. Though the evidence was summary and did not specify whether Byrd drove the
    cars in these chases or otherwise encouraged or caused the driver’s conduct, the district
    court presumed that this evidence made the inference that Byrd encouraged or caused
    Abdul-Jalil’s reckless driving at least a little more plausible. Under all the circumstances
    here, it was not clearly erroneous to infer that Byrd’s participation in yet another reckless
    flight is more likely to be active than passive, even if his exact role in the prior flights
    is unknown.
    Based on the record, the district court’s finding that Byrd was responsible for
    Abdul-Jalil’s reckless driving, and the court’s reasoning underlying this finding, we
    conclude that the court did not clearly err in making this finding. Therefore, the
    reckless-endangerment enhancement imposed by the court was not improper.
    III. CONCLUSION
    For the above reasons, we AFFIRM the judgment of the district court.