US v. Shivers: In 2019, Shivers robbed a convenience store at gunpoint. Unbeknownst to him, an off-duty police officer was working security at the store and called the police, who confronted Shivers with a perimeter when he left the street. Shivers ran, at which point “one officer saw Shivers discard a revolver in the street.” Shivers was convicted of Hobbs Act robbery and brandishing a firearm. At sentencing, he was assessed a two-level increase for reckless endangerment during his flight from the police. The district court agreed that “something more” than simple flight was required and was present in this case because Shivers had to reach for the gun in order to dispose of it, which could have led an officer to opening fire, and that when the gun was thrown it could have accidentally discharged and harmed someone (including, perhaps, Shivers himself). The district court imposed a sentence of 114 months, seven months below the applicable advisory Guideline range.
On appeal, the Fourth Circuit concluded both that the district court’s application of the enhancement was erroneous and that the error was not harmless. After noting that the district court erred by considering risks created to Shivers himself (the enhancement requires risk to “another person”), the court concluded that there was no evidence in the record to support the district court’s conclusions about risks created by Shivers’ conduct. There was no evidence that he pulled the gun out of his pocket, rather than just holding it in his hand, and no evidence that there was a “substantial risk of the firearm discharging when it hit the ground.” As to harmless error, the court held that although the advisory Guideline range had not been a “significant factor” in the sentence imposed there was no evidence that the range was irrelevant.
Congrats to the Defender office in Western NC on the win!
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