United States v. Demetrius Wilson

485 F. App'x 109
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 19, 2012
Docket11-3548
StatusUnpublished

This text of 485 F. App'x 109 (United States v. Demetrius Wilson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Demetrius Wilson, 485 F. App'x 109 (6th Cir. 2012).

Opinion

OPINION

DONALD, Circuit Judge.

Defendant Demetrius D. Wilson was convicted of bank robbery in violation of 18 U.S.C. § 2113(a). He appeals the district court’s application of a two-level sentencing enhancement for reckless endangerment during flight, a two-level carjacking enhancement, and a four-level abduction enhancement. For the following reasons, we affirm.

I.

On August 2, 2010, Demetrius D. Wilson committed a bank robbery at a Fifth Third Bank branch in Lima, Ohio. Following the robbery, Wilson exited the bank and attempted to flee. Using what appeared to be a firearm, 1 Wilson forced a taxi driver to drive away from the scene. Witnesses called the police, and officers from the Lima Police Department subsequently located the taxi. Upon spotting the police, Wilson instructed the taxi driver to put the car in reverse and drive backwards. Wilson eventually told the taxi driver she was not driving fast enough, stopped the car and pushed the driver out of the vehicle. Wilson took control of the car and continued to drive in reverse at a high rate of speed. A police officer shot at the cab and the bullet went through the windshield and exited the rear tailgate of the vehicle. The taxi cab eventually collided with a fire hydrant. Wilson exited the vehicle and proceeded to flee on foot. He was ultimately apprehended in an unattached garage of an unoccupied home. Wilson subsequently pled guilty to the bank robbery charges.

At the sentencing hearing, FBI Special Agent Craig Shulte testified that he had investigated the bank robbery. Shulte testified that on the day of the robbery, Officer Leland of the Lima Police Department told him that another officer had been standing behind the taxi cab as Wilson was driving backwards. Shulte indicated that he remembered there was some concern over officer safety after the shooting.

Defense counsel objected to Shulte’s statements as hearsay. The district court reminded defense counsel that hearsay statements were admissible at sentencing hearings but granted counsel a continuing objection as to the statements.

Based on Shulte’s testimony, the district court determined that Wilson’s operation of the taxi cab created a substantial risk of death or serious bodily injury. As a result, it applied a two-level sentence enhancement for reckless endangerment during flight. The district court also applied *111 a two-level enhancement for carjacking and a four-level enhancement for abduction. Wilson now appeals the district court’s application of the three sentencing enhancements.

II.

We review a district court’s sentencing determination for procedural and substantive reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We accept the district court’s findings of fact unless they are clearly erroneous. United States v. Moon, 513 F.3d 527, 539-40 (6th Cir.2008). The district court’s legal conclusions are reviewed de novo. Id. at 540.

A.

Under the Sentencing Guidelines, a sentencing enhancement for reckless endangerment during flight is appropriate where “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.” U.S.S.G. § 3C1.2. We have held that in order for the enhancement to apply, the

government must show that the defendant (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, (5) and that this conduct occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.

United States v. Woods, 604 F.3d 286, 292-93 (6th Cir.2010).

The Guidelines define recklessness 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.” U.S.S.G. § 2A1.4 cmt. n. 1; U.S.S.G. § 3C1.2 cmt. n. 2. The defendant need not cause actual harm to support a finding of reckless endangerment. United States v. Hazelwood, 398 F.3d 792, 796 (6th Cir.2005). ‘While the question of what constitutes endangerment is a mixed question of law and fact, it is highly fact-based. Therefore, significant deference to the district court is required.” Id.

Although the act of driving in reverse at a high rate of speed is arguably inherently reckless, the district court found that the two-level reckless endangerment enhancement was applicable based on its finding that Wilson drove the getaway vehicle backwards in the direction of a police officer. Wilson asserts that the district court erred in applying the enhancement based upon Shulte’s inadmissible hearsay. He also argues that he did not create a substantial risk to others when he fled. 2

We have repeatedly held that sentencing hearings are not subject to the Federal Rules of Evidence. United States v. Moncivais, 492 F.3d 652, 658 (6th Cir.2007); Fed.R.Evid. 1101(d)(3). Hearsay statements are admissible at sentencing. Moncivais, 492 F.3d at 658. They must, however, bear “some minimal indicia of reliability” to protect a defendant’s right to due process. United States v. Silverman, 976 F.2d 1502, 1512 (6th Cir.1992) (en banc). Evidence that is beyond “mere allegation in an indictment” may be present *112 ed as relevant at sentencing. Id. at 1504. To successfully challenge hearsay evidence relied upon by the sentencing judge, “the defendant must establish that the challenged evidence is materially false or unreliable, and that such false or unreliable information actually served as the basis for the sentence.” Id. at 1512.

At the sentencing hearing, Shulte testified that he interviewed witnesses to the robbery and officers from the Lima Police Department who were first on the scene.

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Related

United States v. Woods
604 F.3d 286 (Sixth Circuit, 2010)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Freeman
640 F.3d 180 (Sixth Circuit, 2011)
United States v. James Ronald Hazelwood
398 F.3d 792 (Sixth Circuit, 2005)
United States v. Moon
513 F.3d 527 (Sixth Circuit, 2008)
United States v. Moncivais
492 F.3d 652 (Sixth Circuit, 2007)
United States v. Johnston
595 F.3d 292 (Sixth Circuit, 2010)

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Bluebook (online)
485 F. App'x 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-demetrius-wilson-ca6-2012.