Summary
upholding the enhancement where the defendant "thr[ew] a loaded gun behind a bar where people were standing"
Summary of this case from United States v. LackeyOpinion
No. 08-30042 Summary Calendar.
September 30, 2008.
Richard W. Rose, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff-Appellee.
Roma A. Kent, Assistant Federal Public Defender, Federal Public Defender's Office, Eastern District of Louisiana, New Orleans, LA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Louisiana, USDC No. 2:07-CR-218-1.
Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
Ken A. Bardell appeals his sentence of 57 months of imprisonment imposed following his guilty plea conviction of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). He argues that the district court erred in imposing a two-level enhancement pursuant to U.S.S.G. § 3C1.2 for reckless endangerment during flight. Bardell contends that his conduct, throwing a loaded gun behind a bar where people were standing, did not warrant the enhancement.
We review the district court's determination that a defendant's conduct constituted reckless endangerment under § 3C1.2 for clear error. See United States v. Lugman, 130 F.3d 113, 115-16 (5th Cir. 1997). Section 3C1.2 provides for a two-level increase in a defendant's offense level if he "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." Reckless refers to 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 in such a situation." § 2A1.4, comment, (n. 1) (cross-referenced in § 3C1.2, comment, (n. 2).).
The applicability of § 3C1.2 is not limited "to situations resulting in actual harm or manifesting extremely dangerous conduct by a defendant." United States v. Jimenez, 323 F.3d 320, 323 (5th Cir. 2003); see also United States v. Villanueva, 69 Fed.Appx. 657 (5th Cir. 2003) (finding that a two-level enhancement under § 3C1.2 was proper where the defendant threw a bag containing methamphetamine onto a public sidewalk while fleeing from police because anyone, including a child, could have picked up the methamphetamine and ingested it). Bardell has not shown that the district court's imposition of the § 3C1.2 enhancement was clearly erroneous.
AFFIRMED.