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Insufficient Findings to Support Reckless Endangerment Enhancement

United States v. Johnson 2012 WL 3890136 (11th Cir. 2012)

Insufficient findings to support reckless endangerment enhancement under §3C1.2

The defendant and a co-defendant, Pugh, robbed a CVS Pharmacy in Atlanta. While still inside, Atlanta police arrived and blocked the parking lot exits with their squad cars. When the defendant and Pugh ran out of the store and got in their stolen getaway car, Pugh, who was driving, rammed one of the police cars and then led police on a high-speed chase. The chase ended when Pugh crashed into a power pole. Pugh was trapped in the car, but the defendant exited through the passenger window and ran away. He was later apprehended by a canine unit. The defendant pled guilty to interfering with commerce by threats or violence; brandishing a firearm during a crime of violence, and being a felon in possession of a firearm. The PSR assessed a two level enhancement for court adopted the PSR. On appeal, the defendant argued that the district court failed to make factual findings sufficient to support the enhancement for reckless endangerment. The Eleventh Circuit noted that the district court was required to “make a specific finding, based on the record before it, that the defendant actively caused or procured the reckless behavior at issue.” United States v. Cook, 181 F.3d 1232 (11th Cir. 1999). Contrary to the government’s argument that the premeditation behind the robbery supported the enhancement, the court found that there was no evidence showing the defendant’s contribution to the planning, and even if there was such evidence, “it would not necessarily reveal whether the getaway maneuver was premeditated (and if it was, by whom). It is likely that [the defendant] and Pugh did not anticipate police showing up while they were still inside the store, but the record does not permit us to make such inferences either way.” Further, while the fact that the defendant fled on foot after the car crashed “might reveal that he intended to escape police all along, it does not tell us whether he played an active supporting role in the recklessness of the car-flight.” “Although the evidence may be sufficient to support an inference that [the defendant] knew when he entered the getaway car that the police were on the scene blocking the exits and that [he] knew that Pugh would have to ram a police car to escape (or engage in other endangering conduct to escape), and although that knowledge may be sufficient to support a finding by the district court, pursuant to Application Note 5, that [the defendant] ‘aided or abetted,’ ‘counseled,’ ‘induced,’ or ‘procured’