United States v. Lard, Ronnie E. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3092
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RONNIE E. LARD,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:02-CR-00004-RM—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED MARCH 5, 2003—DECIDED APRIL 24, 2003
____________
Before MANION, DIANE P. WOOD, and EVANS, Circuit
Judges.
PER CURIAM. Ronnie Lard pleaded guilty to possessing
a sawed-off rifle as a convicted felon, 18 U.S.C. § 922(g)(1),
brandishing the rifle during and in relation to an at-
tempted robbery, id. § 924(c), and possessing the rifle
though it was not registered to him, 26 U.S.C. § 5861(d).
Lard received 76 months’ imprisonment on both the first
and third counts plus a 120-month term on the second
count—all three sentences to run consecutively. His ap-
peal presents the single question of whether the district
court properly imposed an upward adjustment for reck-
less endangerment during flight. U.S.S.G. § 3C1.2. Because
2 No. 02-3092
the district court did not commit clear error by imposing
the adjustment, we affirm.
At four o’clock in the morning on October 8, 2001, Lard
walked into the Village Pantry in Mishawaka, Indiana,
leveled a 9mm Hi-Point carbine rifle with a shortened
barrel at a store employee and the employee’s friend, and
ordered the pair to get into the bathroom and lock the
door. Lard then hitched his pickup truck to the store’s
ATM with a logging chain and attempted to remove the
machine. Lard was momentarily sidetracked when a
prospective customer drove up and asked what he was
doing, but Lard scared the customer away by grabbing his
rifle from the truck’s cab, pointing it at the customer, and
threatening to kill him.
In the meantime, the store employee and his friend had
climbed through the bathroom ceiling into the office, where
they called 911. When the police arrived, they saw Lard
in the store holding his rifle. Lard then ran behind the
store into the woods, which in parts were “heavily weeded.”
Officers pursued with guns drawn, and a police dog eventu-
ally cornered Lard. By then he had discarded his gun,
which Sergeant Steve Treber eventually located and
retrieved from an area of undergrowth that witnesses
described as a “briar patch.” As Sergeant Treber pulled the
gun from the briar patch, the weapon discharged—fortu-
nately causing no injuries.
At sentencing the district court heard testimony from
Lard and ATF Special Agent Sean Skender, who had
not been to the crime scene but was assigned to investi-
gate the attempted robbery. Lard testified that he had
discarded the gun because he wanted to avoid a “confronta-
tion” with pursuing officers. He denied having pulled the
action on the rifle to move a bullet from the magazine
into the chamber. And he said that he was waiting in a
squad car when Sergeant Treber found the rifle but did
No. 02-3092 3
not hear the gun discharge. Agent Skender, in contrast, tes-
tified that Treber had told him that the gun went off when
he picked it up, so ammunition must have been in the
chamber. On cross-examination, however, Skender conceded
that he did not know whether Treber retrieved the gun
carefully and that none of the written reports prepared
by officers on the scene mentioned a discharge.
Rejecting Lard’s argument that the gun never went off,
the district court concluded that Lard had recklessly
endangered the officers as he fled by tossing his rifle into
a briar patch. The court accordingly adjusted Lard’s of-
fense level upward by two levels. U.S.S.G. § 3C1.2. The
court also imposed upward adjustments because Lard
restrained his victims in the bathroom, id. § 3A1.3, and
because Lard obstructed justice by providing phony infor-
mation to the arresting officers, id. § 3C1.1. The court then
denied Lard’s request to depart downward to bring his
criminal history category in line with his criminal back-
ground. Id. § 4A1.3.
On appeal Lard argues only that the district court
improperly adjusted upward for reckless endangerment,
a move that increased his maximum guideline range by
31 months. Application of a reckless-endangerment ad-
justment is a factual finding that we review for clear error.
United States v. Thomas, 294 F.3d 899, 906 (7th Cir. 2002).
The adjustment is warranted where “the defendant reck-
lessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a
law enforcement officer.” U.S.S.G. § 3C1.2. To obtain the
adjustment the government must show that the defen-
dant did more than merely flee; the guideline requires
“additional conduct” that creates a substantial risk of
serious injury. United States v. Reyes-Oseguera, 106 F.3d
1481, 1483 (9th Cir. 1997); see also United States v. Hagan,
913 F.2d 1278, 1284-85 (7th Cir. 1990) (same rule prior to
the enactment of § 3C1.2).
4 No. 02-3092
The government does not argue that simply discarding
a loaded weapon warrants the adjustment but instead
points to two additional factors that, it says, support
imposing the adjustment here. First, the government
contends that by tossing the rifle into a briar patch, Lard
created a substantial risk that the gun would discharge—as
it actually did—when pursuing officers tried to retrieve
it. Second, the government argues that regardless of
where the weapon landed, Lard created a risk that the rifle
would fire simply by throwing it with a round in the
chamber and the safety off.
We question whether the government’s evidence that
Lard abandoned his gun in a briar patch was enough by
itself to establish that the adjustment was warranted. It
is unclear, for example, if Lard had any idea where he
left his gun as he ran through the woods in the dark. And
the government needed to show that Lard was aware
that he had created a substantial risk of injury by discard-
ing the weapon and nonetheless disregarded that risk.
U.S.S.G. § 3C1.2, comment. (n.2); id. § 2A1.4, comment.
(n.1). It is of course true that simply leaving a weapon in
a public place can amount to reckless endangerment. The
Tenth Circuit recently made this point in United States
v. Brown, 314 F.3d 1216 (10th Cir. 2003)—a case in which
a fleeing defendant dropped his handgun outside an
apartment complex where children were getting off a
school bus. Id. at 1221. But unlike Brown there is no
evidence here that the public could easily access the
briar patch. Indeed, Agent Skender testified that the
briar patch was in a “wooded area” behind the Village
Pantry, and nothing in the record shows the location of
this wooded area in relation to the store.
Still, the government insists that because the gun ac-
tually discharged when Sergeant Treber picked it up, the
district court could reasonably infer that the briar patch
was an unsafe place to leave a weapon. To create that
No. 02-3092 5
inference, however, the government needed to introduce
some evidence about dangerous features of the briar
patch—which it failed to do. There is no evidence, for
example, that the gun discharged because the trigger
snagged on the briars and not because of a malfunction
or Sergeant Treber’s negligence. Treber did not testify
at the sentencing hearing, nor did the government at-
tempt to elicit through hearsay any specifics about the
rifle’s recovery. And Agent Skender, who did testify,
conceded that he did not know if Treber acted carefully.
In short, nothing in the record explains why the gun went
off. By all appearances, the gun might have been just
as likely to discharge if the police had ordered Lard to
drop the weapon, and he had heeded their command.
Nonetheless, the district court also found that Lard
threw the rifle with a round in the chamber and the safety
off. Lard in his opening brief makes no argument that
these findings were clearly erroneous. He says in his reply
that no one saw him discard the rifle and so there is no
evidence that he “threw” the weapon. But on cross-examina-
tion the prosecutor asked, “And you threw this firearm
away from your person knowing it was loaded at the time
you threw it,” to which Lard responded, “Yes, I did.” Lard
introduced no evidence to clarify that what he meant
to say is that really he had gently set the gun down,
even though his attorney recognized the government’s
characterization and argued to the district court that
Lard “could have been setting [the gun] down.”
On the question of whether throwing a gun with a round
in the chamber and the safety off is dangerous enough
to justify an adjustment under § 3C1.2, we have found
no published appellate decisions. Clear error, however, is
a deferential standard. The district court needs to adopt
only a permissible view of the evidence. See United States
v. O’Brien, 238 F.3d 822, 825 (7th Cir. 2001); see also
Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).
6 No. 02-3092
On this record the district court could reasonably have
inferred that throwing a rifle, which was fully capable
of firing, could actually cause the gun to go off when it
hit the ground, thus creating a risk of serious injury to
pursuing officers. Agent Skender said as much at the
sentencing hearing, testifying that he would never throw
a loaded firearm because of the risk that it would discharge.
Additional information might have weakened the infer-
ence. For example, evidence of the force with which Lard
threw his rifle (the district court declined to find “whether
that was a short toss or a long toss”) and the likelihood
that the force would cause the rifle to discharge might
have shown the degree of risk to be slight. Cf. United
States v. Smith, 210 F.3d 760, 763-64 (7th Cir. 2000)
(holding that the risk created by throwing dangerous
chemicals out of a car at pursuing officers depends on the
chemicals’ quantity and concentration). But absent such
evidence the district court’s assessment of the risk was
not implausible. The court therefore did not commit
clear error, and its judgment is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-24-03