United States v. Reyes-Oseguera

106 F.3d 1481, 97 Daily Journal DAR 1623, 97 Cal. Daily Op. Serv. 1089, 1997 U.S. App. LEXIS 2742
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 18, 1997
DocketNos. 96-50076, 96-50079
StatusPublished
Cited by39 cases

This text of 106 F.3d 1481 (United States v. Reyes-Oseguera) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Reyes-Oseguera, 106 F.3d 1481, 97 Daily Journal DAR 1623, 97 Cal. Daily Op. Serv. 1089, 1997 U.S. App. LEXIS 2742 (9th Cir. 1997).

Opinions

TROTT, Circuit Judge:

Gonzalo Reyes-Oseguera and David Kirsch, codefendants, appeal the district court’s application of a two-level sentence enhancement for reckless endangerment during flight, pursuant to USSG § 3C1.2. The court imposed the enhancement in Kirsch’s case because he fled across a thoroughfare in medium to heavy traffic, and in Reyes-Ose-guera’s case because he fled from an armed officer, forcing the officer to wrestle with him to apprehend him. We must decide whether the circumstances surrounding each defendant’s respective flight warrant the enhancement for reckless endangerment.

Because the district court’s findings regarding Kirsch—that by running through busy traffic he created a substantial risk to motorists—are plausible, we affirm Kirsch’s sentence. However, because the record is too incomplete to support the district court’s findings that an armed law enforcement agent was forced to tackle Reyes-Oseguera to subdue him, we hold that the district court clearly erred in applying the enhancement to Reyes-Oseguera’s sentence. Thus, we vacate the sentence and remand to the district court with instructions to resentence Reyes-Oseguera in accordance with its alternative sentence.

BACKGROUND

On August 17, 1995, at approximately 8:00 p.m., Kirsch was driving a step-van in the right, southbound lane of a four-lane boulevard. Reyes-Oseguera was a passenger in the van, and twenty-seven undocumented aliens were in the back. Approximately six Immigration and Naturalization Service (INS) vehicles followed the van and ultimately “red-lighted” it. Kirsch quickly stopped the van, and both appellants fled the van on foot.

Reyes-Oseguera exited the right front door and ran southbound on the street or sidewalk. An agent pursued and apprehended him. Kirsch exited the left front door, ran diagonally across one southbound and two northbound lanes of traffic, and proceeded northbound on the sidewalk. INS agents pursued him across the street and apprehended him after he had run approximately four to six car lengths.

Reyes-Oseguera pled guilty to conspiracy, in violation of 18 U.S.C. § 371, and concealing and harboring illegal aliens, in violation of 8 U.S.C. § 1324(a)(l)(A)(iii). Kirsch pled guilty to conspiracy, in violation of 18 U.S.C. § 371, and transporting illegal aliens, in violation of 18 U.S.C. § 1324(a)(l)(A)(ii). At sentencing, the district court found that each defendant’s conduct created a substantial risk of serious bodily injury or death. Kirsch, by running through busy traffic, created a risk to motorists. Reyes-Oseguera, by inducing an armed law enforcement officer to pursue and subdue him, created a risk to the officer. Therefore the court imposed a two-level enhancement for reckless endangerment during flight pursuant to section 3C1.2. The court sentenced Kirsch to twenty-seven months, with an alternate sentence of twenty-one months calculated without the enhancement, and Reyes-Oseguera to thirty months, with an alternate sentence of twenty-four months calculated without the enhancement.

STANDARD OF REVIEW

We review the district court’s findings of fact underlying a sentencing decision for clear error. United States v. Robinson, [1483]*148394 F.3d 1825, 1327 (9th Cir.1996); United States v. Young, 33 F.3d 31, 32 (9th Cir.1994). We review the district court’s application of the Sentencing Guidelines to the facts for an abuse of discretion. Robinson, 94 F.3d at 1327.

DISCUSSION

I. Instinctive Flight v. Reckless Endangerment

In this case, we must define the scope of section 3C1.2 and determine what conduct is sufficient to warrant its application. Section 3C1.2 states:

If 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.

The guidelines define “reckless” 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 gross deviation from the standard of care that a reasonable person would exercise in such a situation.” USSG § 2A1.4, comment. (n.l). We have had little opportunity to determine when a foot flight can rise to the level of reckless endangerment.

In United States v. Garcia, 909 F.2d 389, 390-91 (9th Cir.1990), the defendant fled on foot after a traffic stop. Police pursued him into a nearby field, where he surrendered. The district court enhanced the defendant’s sentence based on section 3C1.1, obstruction of justice, which was applied in flight cases prior to the 1990 addition of section 3C1.2. We reversed, explaining that obstruction of justice required “something different from the instinctive flight of a suspect who suddenly finds himself in the power of the police. ‘Mere flight in the immediate aftermath of a crime’ does not justify the enhancement.” Id. at 392 (quoting United States v. Stroud, 893 F.2d 504, 507 (2d Cir.1990)).

Appellants ask us to hold that section 3C1.2 does not apply to foot flight, pointing out that the majority of our easelaw applying section 3C1.2 involved vehicle pursuits, often at high-speeds. While we recognize that courts typically apply section 3C1.2 enhancements in the context of high-speed or dangerous vehicle pursuits, we have not precluded application of section 3C1.2 to other situations, including foot flight. See, e.g., United States v. Torres-Lopez, 13 F.3d 1308, 1312 (9th Cir.1994) (finding that additional danger to the motoring public posed by defendant’s foot flight is of the same type created by their high-speed chase and is “within the ‘heartland’ ” of section 3C1.2); Young, 33 F.3d at 33 (Wiggins, J., concurring) (emphasizing that reckless endangerment could include not only driving recklessly, but also seeking to escape on foot). Thus, we decline appellants’ request, but reiterate the rule that instinctive flight on foot from law enforcement is insufficient on its own to justify the application of section 3C1.2. The guidelines contemplate that some additional conduct must create a substantial risk.

Having determined that, without more, instinctive flight does not constitute reckless endangerment, we must consider whether the defendants’ conduct constituted “mere flight,” or included additional behavior that recklessly created a substantial risk of death or serious bodily injury.

II. Kirsch

After being red-lighted by the INS, Kirsch stopped the van and fled on foot across three lanes of traffic on a busy thoroughfare.

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Bluebook (online)
106 F.3d 1481, 97 Daily Journal DAR 1623, 97 Cal. Daily Op. Serv. 1089, 1997 U.S. App. LEXIS 2742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-reyes-oseguera-ca9-1997.