FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 5 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30275
Plaintiff-Appellee, D.C. No. 2:20-cr-00215-RSM-1 v.
ELLEN BRENNAN REICHE, OPINION
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted August 11, 2022 Seattle, Washington
Before: Morgan Christen, Kenneth K. Lee, and Danielle J. Forrest, Circuit Judges.
Opinion by Judge Lee SUMMARY *
Criminal Law
The panel affirmed the sentence imposed on Ellen Reiche whom a jury convicted of Violence Against Railroad Carriers in violation of 18 U.S.C. § 1992(a)(5), in a case in which Reiche, in order to stop an incoming train carrying crude oil and strike a blow against the fossil fuel industry, secretly placed a shunt on railroad tracks to tamper with the rail signaling system.
The panel held that the district court did not err in applying a sentencing enhancement pursuant to U.S.S.G. § 2A5.2(a)(2) for recklessly endangering the safety of a mass transportation vehicle. Disagreeing with Reiche’s argument that she was unaware of the risks posed by the shunt, the panel held that the district court correctly concluded that a reasonable person would understand that unexpectedly stopping a freight train, as it barrels down the tracks, poses an obvious risk of harm.
The panel also held that the district court did not err in denying Reiche a downward sentencing adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a). The panel wrote that the district court recognized that Reiche’s decision to go to trial did not necessarily bar her from receiving a sentencing reduction but determined that she had not shown genuine acceptance of responsibility. The panel concluded that the district court did not abuse its discretion in making this determination.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. COUNSEL
Jesse Cantor (argued) and Christopher Sanders, Assistant Federal Public Defenders; United States Federal Public Defender’s Office, Seattle, Washington, for Defendant- Appellant. Teal Luthy Miller (argued), Philip Kopczynski,; Sok Tea Jiang, and Thomas Merton Woods, Assistant United States Attorneys; Nicholas W. Brown, United States Attorney; Office of the United States Attorney, Seattle, Washington; for Plaintiff- Appellee. LEE, Circuit Judge:
Clad in all-black outfits and masks, Ellen Reiche, along with an accomplice,
surreptitiously approached a remote set of railroad tracks during the midnight hour.
In her bag, Reiche carried wires, a drill, scissors, and gloves. Reiche then secretly
placed a “shunt” on the tracks to tamper with the rail signaling system and force
trains to halt. Her goal was to stop an incoming train carrying crude oil and thus
strike a blow against the fossil fuel industry. Law enforcement, however, detected
the two women, foiling their plan.
Reiche was convicted of Violence Against Railroad Carriers. 18 U.S.C.
§ 1992(a)(5). In imposing a sentence of twelve months and one day of
imprisonment, the district court applied a sentencing enhancement for “recklessly”
endangering the safety of a mass transportation vehicle. U.S. Sent’g Guidelines
Manual (U.S.S.G.) § 2A5.2(a)(2) (U.S. Sent’g Comm’n 2021). Reiche now appeals,
arguing that she was unaware of the risks posed by the shunt. We disagree. The
district court correctly concluded that a reasonable person would understand that
unexpectedly stopping a freight train, as it barrels down the tracks, poses an obvious
risk of harm.
We also affirm the district court’s rejection of a sentencing reduction for
acceptance of responsibility. The court recognized that Reiche’s decision to go to
trial did not necessarily bar her from receiving a sentencing reduction. The court,
2 however, determined that she had not shown genuine acceptance of responsibility.
BACKGROUND
I. Ellen Reiche interferes with a railroad track’s signaling system to protest fossil fuels.
Around midnight on Thanksgiving weekend in 2020, Ellen Reiche and
Samantha Brooks snuck onto BNSF Railway’s railroad tracks near Bellingham,
Washington. The women wore masks and black clothing to evade detection. They
also left their cell phones at home to avoid digital footprints that could place them at
the railroad tracks.
Armed with knowledge gained from the internet, Reiche carried supplies to
create a “shunt,” a wire apparatus that connects to railroad tracks. A shunt disrupts
the rail signaling system by indicating that the track is occupied or obstructed, thus
causing incoming trains to stop with little notice. Reiche and Brooks successfully
placed the shunt on the tracks, intending to “directly impede the fossil fuel supply
chain” by stopping an incoming train carrying crude oil.
The Sheriff’s Office deployed two deputies to the area after a motion-sensing
camera captured images of Reiche and Brooks on the railroad tracks. When the first
deputy arrived, he saw the women crouched down over the tracks. They walked
away from the deputy after he identified himself, but they cooperated after the
deputy jogged towards them. When the deputy questioned Reiche and Brooks, the
women were evasive and untruthful.
3 The deputies later found a wire shunt concealed under rocks, near a section of
the rail that looked like it had been cleaned of rust to improve connectivity between
the shunt and the signaling system. The deputies arrested the women and searched
Reiche’s bag, in which they found wire, a drill with an attachment that could be used
to clean rust off the rails, scissors, and gloves.
A grand jury indicted Reiche and Brooks with one count of Violence Against
Railroad Carriers in violation of 18 U.S.C. § 1992(a)(5). Brooks pleaded guilty,
while Reiche opted for a jury trial.
II. The jury unanimously votes to convict Reiche of Violence Against Railroad Carriers.
At trial, the government called a BNSF supervisor to testify as an expert in
rail signal systems. The expert explained that shunting is a “very dangerous act.” A
shunt causes the rail system to falsely detect that another train is on the tracks and
thus signal for oncoming trains to stop. This can cause a “braking event,” in which
a train engineer must make an emergency stop if he or she lacks sufficient warning
to gradually slow to a halt. If the engineer does not react in time, the train will
automatically stop. BNSF witnesses explained that, whether because of an
emergency stop or an automatic stop, suddenly stopping a train can cause the
connectors between train cars to break, which can lead to decoupling or derailment.
Only about a month before this incident, a train had separated “very violently” near
Bellingham after a shunt forced a braking event.
4 The expert also testified that railroad crossings use the same signaling system
as trains. A shunt can thus reduce or eliminate the warning times to motorists
approaching a railroad crossing. The expert explained that Reiche’s placement of
the shunt within 200 feet of a railroad crossing would have interfered with the
crossing signals. If a train had approached that shunt, the expert concluded that the
train would have “very likely” reached the road before the first warning light
engaged, endangering any drivers who might have been at the intersection.
Throughout the trial, Reiche’s counsel maintained that the evidence failed to
establish that she placed the shunt on the track. She also argued that the government
failed to prove that the shunt was attached to the rails, that the track indication was
so brief that it did not count as impairing the operation of the railway, and that
something other than the shunt might have caused the manipulation of the signal
system.
The jury voted to convict Reiche.
III. At the sentencing hearing, the district court rejects Reiche’s arguments.
At Reiche’s sentencing hearing, the parties addressed (1) whether Reiche
“recklessly endangered” the safety of a mass transportation vehicle under U.S.S.G.
§ 2A5.2(a)(2), which carries a nine-point sentencing enhancement, and (2) whether
the district court should credit Reiche’s acceptance of responsibility for a downward
sentencing adjustment.
5 Reiche argued that she was unaware of the risks posed by a shunt and thus
should not receive a sentencing enhancement for recklessly endangering the safety
of a mass transportation vehicle. To support her argument, Reiche submitted a letter
explaining that she learned about shunting from eco-activist websites that advocated
impeding the fossil fuel supply chain. She explained that she studied articles and
reports that provided instructions on how to shunt a train but maintained that she
never read about “any kind of danger associated with the act.” Reiche thus argued
that she thought that shunting was an “entirely safe” way to protest climate change
and only realized its dangerousness when confronted with the government’s
evidence at trial. But one website printout that Reiche provided to the court
described shunting as “rail sabotage” and advised readers to be “careful with
yourselves, fingerprints, and DNA.”
Reiche also submitted a letter to the court in which she stated that she accepted
responsibility for her actions. She thus argued that, even though she elected to go to
trial, she should be entitled to a two-level reduction for acceptance of responsibility.
The government disagreed. It argued that Reiche acted recklessly because a
reasonable person would appreciate the risk of interfering with a railway signaling
system. The government argued that it was “simply not believable” that Reiche
thought shunting was “entirely safe.” The government also noted that Reiche’s
preparations, actions at the railway, and evasive answers to law enforcement
6 suggested that she understood the risks of her conduct. Finally, the government
maintained that Reiche’s conduct was “not consistent with what the guidelines
consider a genuine acceptance of responsibility.”
The district court agreed with the Probation Office’s sentencing
recommendation. It first found by clear and convincing evidence that Reiche was
aware of the dangers of placing a shunt. The court reasoned that it is “common
knowledge” that tampering with a train signaling system may cause a “catastrophic
incident” and that Reiche’s careful research and preparation—coupled with her high
intelligence—made it unlikely that she was ignorant of these risks.
Next, the district court noted that it had the authority to grant a downward
adjustment for acceptance of responsibility, even though Reiche went to trial but it
declined to exercise that authority because it did not find Reiche’s avowed remorse
convincing. Reiche told the court that she thought shunting was an “entirely safe
and peaceful form of protest.” But the court explained that Reiche’s persistent denial
of guilt and the severity of her conduct undermined her claim that she regretted her
actions. As the district court stated, it would have given “a lot more credit to her
letter, perhaps, if she’d simply, at some point in the trial, said, ‘I get it. I
understand.’” The court clarified that it was “not punishing [Reiche] for going to
trial.” Rather, it simply did not find facts to support that “she deserves the reward
for that early acceptance of responsibility.”
7 The court imposed a below-Guidelines sentence of twelve months and one
day of imprisonment, plus three years of supervised release. Reiche timely appealed.
STANDARD OF REVIEW
This court reviews “the district court’s interpretation of the Sentencing
Guidelines de novo, its factual findings for clear error, and its application of the
Guidelines to the facts for abuse of discretion.” United States v. George, 949 F.3d
1181, 1184 (9th Cir.) (citing United States v. Gasca-Ruiz, 852 F.3d 1167, 1170–72
(9th Cir. 2017) (en banc)), cert. denied, 141 S. Ct. 605 (2020). “[A]s a general rule,
a district court’s application of the Sentencing Guidelines to the facts of a given case
should be reviewed for abuse of discretion.” Gasca-Ruiz, 852 F.3d at 1170. If the
district court selected the right Guidelines provision, de novo review is appropriate
only when “in the course of rendering its decision, the district court formulates or
adopts a generalized rule that will apply to an entire class of cases, not just to the
case at hand.” Id. at 1171.
ANALYSIS
I. The district court did not err in finding that Reiche recklessly endangered the safety of a mass transportation vehicle.
Under the U.S. Sentencing Guidelines, a defendant convicted of Violence
Against Railroad Carriers, 18 U.S.C. § 1992(a)(5), starts off with a base offense level
of nine. U.S.S.G § 2A5.2(a)(4). But “if the offense involved recklessly endangering
the safety of . . . a mass transportation vehicle,” the base offense level ratchets up to
8 18. Id. § 2A5.2(a)(2). To apply a sentencing enhancement based on recklessness, a
district court must find by clear and convincing evidence that (1) “the defendant was
aware of the risk created by his conduct” and (2) “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 in such a situation.” United States v.
Gardenhire, 784 F.3d 1277, 1280 (9th Cir. 2015) (quoting U.S.S.G. § 2A1.4 cmt.
n.1). We address only the first prong because Reiche has contested only her
awareness of the risk posed by her conduct.
A defendant is aware of the risk created by her conduct when she knows “facts
which, if considered and weighed in a reasonable manner, indicate a substantial and
unjustifiable risk . . . , and the defendant knew of that risk.” United States v.
Rodriguez, 880 F.3d 1151, 1162 (9th Cir. 2018) (emphasis omitted). Importantly,
the “obviousness of a risk may be used to prove subjective knowledge.” Harrington
v. Scribner, 785 F.3d 1299, 1304 (9th Cir. 2015); see also Mendiola-Martinez v.
Arpaio, 836 F.3d 1239, 1256 (9th Cir. 2016) (collecting cases) (“A jury could also
infer the County Defendants’ awareness . . . because the risk is obvious.”). A court
thus may infer a defendant’s subjective awareness of risk if a reasonable person
would understand that the defendant’s actions are obviously dangerous.
Reiche relies on our decision in United States v. Gardenhire to argue against
the reckless endangerment enhancement. In that case, the defendant, an eighteen-
9 year-old boy, aimed a laser pointer at an airplane flying over two-thousand feet in
the air after being warned “not to shine the laser at anyone’s eyes because it would
blind people.” 784 F.3d at 1281. This court reversed the district court’s reliance on
the reckless endangerment enhancement, ruling that the government had not shown
that the defendant understood the risks or that the dangers “were of general
knowledge to the average person, or of specific knowledge to teens.” Id. at 1283.
As the court put it, “knowing that a laser beam can cause blindness when pointed
directly at a person’s eyes is very different than knowing that a laser beam can be
distracting to pilots who are both enclosed in a cockpit and at least 2,640 feet away.”
Id. at 1281; see also United States v. Rodriguez, 790 F.3d 951, 960 (9th Cir. 2015).
On the other hand, in United States v. Naghani, we affirmed the reckless
endangerment enhancement for a defendant who lit a cigarette in an airplane
bathroom, set off the smoke alarm, and then threatened to “kill all Americans.” 361
F.3d 1255, 1258–59 (9th Cir. 2004). We held that the district court properly inferred
that “Naghani was aware of the risk created by his smoking, obstreperous behavior
and threats,” emphasizing that “Naghani should have been aware that his behavior
would divert the flight attendants’ attention from their duties and require their
presence,” which could have impeded “an effective response by the flight
attendants” if “an actual emergency had arisen.” Id. at 1263.
We believe Naghani is more analogous here because Reiche’s actions (like
10 the defendant’s in that case) were obviously reckless and risky. It does not take a
locomotive engineer to recognize that forcing a freight train to come to a sudden stop
endangers the safety of those on and around it. Cf. United States v. Gonzalez, 492
F.3d 1031, 1038 (9th Cir. 2007) (“It doesn’t take an aeronautical engineer to
recognize that a threat of a bomb . . . and the havoc that such a threat might cause is
a threat to the safety of the aircraft.”). Indeed, it is a common trope even in cartoons
and comics that a speeding train cannot stop quickly and may derail in trying to do
so. And common sense underscores the danger of having a speeding vehicle stop
suddenly: Imagine if someone placed nails on a road to cause a flat tire in a bid to
stop cars. Perhaps the car could safely come to a stop—but any reasonable person
would recognize that this is a risky thing to do because the car, for example, may
careen off the road or spin out of control.
Yet Reiche planned to suddenly stop a speeding freight train carrying millions
of gallons of crude oil, as it passed through a residential neighborhood. Reiche might
be correct that the public does not know about the mechanics of shunting. And
Reiche herself might not have understood the exact science of a shunt’s interaction
with the train’s signaling system, even after studying materials teaching her how to
make and install a shunt. But Reiche had to know that if her shunting efforts
succeeded, she would have suddenly thrown the brakes on a moving freight train.
Simply stated, a reasonable person would be immediately aware of the obvious risks
11 of this conduct. The district court thus did not err in finding that the “obviousness
of [the] risk” meant that Reiche was subjectively aware of the risk presented by her
conduct. Harrington, 785 F.3d at 1304.
Moreover, Reiche’s research into shunting reinforces the district court’s
recklessness finding. Cf. Gardenhire, 784 F.3d at 1283 (mentioning knowledge
specific to teenagers). She is not some “knucklehead” teenager who “aimed a laser
pointer at a passing airplane just for the fun of it.” Rodriguez, 790 F.3d at 953.
Rather, she is a “highly intelligent” individual who carefully researched an illicit
way to disrupt a moving train. She gained specialized knowledge about rail
signaling systems and trains by studying “[m]ultiple reports and articles” on “various
websites.” The articles that Reiche submitted as examples of her research do not
discuss the dangers of shunting, but, as Reiche suggested, these were not the only
articles that she consulted. These facts are starkly different from those in Gardenhire
in which someone, especially a teenager, may not appreciate that a small laser pen
can blind an airplane pilot who is a couple thousand feet in the air. 784 F.3d at 1283.
In short, the district court’s finding was not “illogical, implausible, or without
support in the record” and thus does not warrant reversal. Id. at 1280 (quoting United
States v. Fitch, 659 F.3d 788, 797 (9th Cir. 2011)). It did not err in finding that
Reiche’s conduct “involved recklessly endangering the safety of . . . a mass
transportation vehicle” and thus did not abuse its discretion by applying the
12 corresponding sentencing enhancement under U.S.S.G. § 2A5.2(a)(2).
II. The district court did not err in denying Reiche a downward sentencing adjustment for acceptance of responsibility.
The Sentencing Guidelines provide for a two-level downward sentencing
adjustment for a defendant’s acceptance of responsibility. U.S.S.G. § 3E1.1(a). To
be eligible for this reduction, the defendant bears the burden of showing that she has
genuinely accepted responsibility for her actions. See United States v. Ramos-
Medina, 706 F.3d 932, 940 (9th Cir. 2013); United States v. Cortes, 299 F.3d 1030,
1038 (9th Cir. 2002).
The Sentencing Guidelines state in a nonbinding comment that “this
adjustment is not intended to apply to a defendant who puts the government to its
burden of proof at trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1
cmt. 2. But a “defendant’s decision to go to trial does not necessarily foreclose him
from receiving this offense-level decrease.” United States v. Tuan Ngoc Luong, 965
F.3d 973, 990 (9th Cir. 2020) (citing U.S.S.G. § 3E1.1 cmt. 2), cert. denied, 142 S.
Ct. 336 (2021). For example, the adjustment may be available “where a defendant
goes to trial to assert and preserve issues that do not relate to factual guilt,” U.S.S.G.
§ 3E1.1 cmt. 2, and “in appropriate circumstances the reduction is also available in
cases in which the defendant manifests genuine contrition for his acts but
13 nonetheless contests his factual guilt at trial,” United States v. McKinney, 15 F.3d
849, 853 (9th Cir. 1994).
Reiche argues that the district court erred in its interpretation of the Sentencing
Guidelines by deferring to the nonbinding comment that the acceptance-of-
responsibility adjustment should not apply to defendants who contest their factual
guilt at trial. See U.S.S.G. § 3E1.1 cmt. 2. But the district court did not defer to the
comment. To the contrary, the court recognized that it had the authority to grant the
downward adjustment—it simply declined to do so considering the circumstances
here. See Ramos-Medina, 706 F.3d at 940 (holding that a defendant who goes to
trial “may still be eligible for a downward adjustment if, and only if, he has
‘otherwise demonstrated sincere contrition’” (quoting Cortes, 299 F.3d at 1038)).
In other words, the court did not adopt a general, per se rule foreclosing the
availability of the acceptance-of-responsibility adjustment; it determined that this
case did not warrant the downward adjustment.
The district court acknowledged that Reiche showed remorse for her actions.
It also believed Reiche’s statement that she grew to understand the severity of her
actions during the government’s presentation of its case. The court, however, was
not convinced that Reiche deserved a sentencing adjustment for showing acceptance
of responsibility for or understanding the severity of her actions. As the district court
noted, Reiche contested her responsibility throughout her trial. If Reiche came to
14 understand the severity of her actions, she could have, at some point in the trial, said,
“I get it. I understand.” Instead, she waited until after the jury returned a guilty
verdict before showing contrition. The district court thus concluded that it was “not
punishing [Reiche] for going to trial,” but it did not believe that she was entitled to
a downward adjustment for acceptance of responsibility. The district court did not
abuse its discretion in making this determination.
CONCLUSION
We AFFIRM the district court’s sentencing decisions.