Armed Flight “Plus” Constitutes Reckless Endangerment

US v. Dennings: Dennings, armed with a firearm, tried to rob someone. The man resisted (he hit Dennings in the face) and the gun went off twice, attracting the attention of a nearby police officer. The officer gave chase as Dennings fled, with his right hand “not empty and freely swinging like his left hand” and the officer “unable to determine if Dennings was digging in his pocket or holding onto something.” The officer caught Dennings when he fell, but Dennings continued to resist and was “hesitant to relinquish control” of his right arm. The officer recovered a firearm from Dennings’ jacket pocket. For his trouble Dennings was convicted of being a felon in possession of a firearm. At sentencing, he was assessed a two-level enhancement for reckless endangerment based on his flight from the officer and was sentenced to 110 months in prison.

On appeal the Fourth Circuit affirmed the application of the two-level enhancement. Dennings argued that because “instinctive flight” is not enough to warrant application of the enhancement, such flight while possessing a firearm (but not doing anything with it) should not, either, because such flight is the safest way to flee while armed. The court disagreed, concluding that situations where a party is armed, or there is evidence he might be armed, still present a sufficient risk of harm to justify imposing the enhancement. The court did stress that it was not address pure armed instinctive flight, because Dennings’ “situating involved flight-plus-something more,” particularly the shots fired and the other elements of the chase.

NC Assault With a Deadly Weapon on a Government Official Is Not a “Crime of Violence”

US v. Simmons: Simmons was on supervised release when he was involved in a high-speed chase with police during which he sideswiped a state trooper. The district court, upon revoking Simmons’ term of supervised release, concluded that he had committed a Grade A violation because Simmons had committed the NC offense of assault with a deadly weapon on a government official (“AWDGOGO”), which qualified as a “crime of violence.” The district court then sentenced Simmons to 36 months in prison, the top of the resulting advisory Guideline range.

On appeal the Fourth Circuit vacated the sentence, concluding that AWDGOGO was not a crime of violence. Analyzed both under the enumerated offense clause (as “aggravated assault”) and the force clause, the problem was the same – AWDGOGO requires only a mens rea of “culpable negligence,” which is less than the recklessness required by the Guidelines. In doing so, the court restricted itself to the “least culpable conduct under the North Carolina statute,” rejecting the Government’s argument that it should look to the “ordinary or typical case.” The error of classifying  AWDGOGO as a crime of violence was plain, impacted Simmons’ substantial rights, and required vacation of his sentence.

Harmless Error Saves Court from Resolving Crime of Violence Issue

US v. Mills: Mills pleaded guilty to being a felon in possession of a firearm. At sentencing, his base offense level was enhanced based on a prior conviction in North Carolina for assault with a deadly weapon inflicting serious injury, which was deemed a “crime of violence.” The resulting advisory Guideline range was 70 to 87 months in prison. Mills objected to that designation and argued for a sentence within a range of 37 to 46 months in prison. The district court concluded the conviction was a crime of violent and imposed a 70-month sentence, explaining that it would have imposed the same sentence even if the Guideline calculations had been different.

The Fourth Circuit affirmed the sentence. It avoided the question of whether the North Carolina prior conviction was a crime of violence because even if there was an error, the error was harmless. First, the district court specifically said on the record it would have imposed the same sentence regardless of the Guideline calculations. Second, the court concluded, that 70-month sentence was otherwise reasonable, noting that the issue was its substantive reasonableness, not its procedural reasonableness. Thus it was irrelevant whether the district court did not adequately address Mills’ mitigation arguments, which might have been more persuasive with a lower Guideline range.