United States v. Bardell , 294 F. App'x 881 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 30, 2008
No. 08-30042
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KEN A BARDELL
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.
PER CURIAM:*
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.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 08-30042
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 F. App’x 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.
2