United States v. Dennings (P)

The district court properly calculated the defendant’s Sentencing Guidelines range by including an offense characteristic enhancement for reckless endangerment during flight on foot.

Here, the defendant’s situation involved flight plus something more. He fled from police sirens after having discharged a firearm. The record reflects that while he was running, he behaved differently with his right hand than his left, his right hand was holding or reaching near a firearm located in his jacket pocket, and he was hesitant in relinquishing control of his right arm when that arm was also on or near a firearm.

Rather than being mere “instinctive flight,” the defendant’s conduct created a substantial risk of death or serious bodily injury as required for § 3C1.2 to apply. His firearm could have discharged, intentionally or accidentally, or his behavior could have led the pursuing officer to draw his own firearm in self-defense. Either of these circumstances would have created a risk to the officer chasing him, the other officers who were responding to the report of gunshots, or innocent bystanders in the area. That no one was injured during these events is of no moment because § 3C1.2 requires only that the defendant’s conduct create a risk of that occurring. Furthermore, Dennings’ conduct was reckless.

Affirmed.

United States v. Dennings (P), No. 18-4261, Apr. 24, 2019. 4th Cir. (Agee) from EDNC at Raleigh (Howard).



Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published

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