United States v. Kevin Dennings

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4261
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEVIN LEE DENNINGS,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Malcolm J. Howard, Senior District Judge. (5:17-cr-00227-H-1)
Argued: January 31, 2019 Decided: April 24, 2019
Amended: April 25, 2019
Before AGEE and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Floyd and
Senior Judge Traxler joined.
ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Amy N. Okereke, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan
DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney,
Jennifer P. May-Parker, Assistant United States Attorney, Kristine L. Fritz, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
AGEE, Circuit Judge:
In this appeal, Kevin Lee Dennings contends that the district court improperly
calculated his Sentencing Guidelines range by including an offense characteristic
enhancement for reckless endangerment during flight under U.S.S.G. § 3C1.2. For the
reasons set out below, we affirm.
I.
In March 2017, Dennings approached a man while wearing a t-shirt around his
head and face. The man observed Dennings pull a firearm out of his pocket. Believing he
was being robbed, the man punched Dennings. In the scuffle that followed, Dennings’
firearm discharged twice, although it’s not clear whether the discharge was intentional or
accidental. No one was injured by the gunfire.
When Dennings heard police sirens, he disengaged from the scuffle and fled. A
police officer in the area saw Dennings running with a “garment over his face” and
pursued him. J.A. 78. The officer stated that during the chase, he observed “that
Dennings’ right hand was not empty and freely swinging like his left hand, but [the
officer] was unable to determine if Dennings was digging in his pocket or holding onto
something.” J.A. 78. Dennings ignored the officer’s repeated instructions to stop, but at
some point Dennings fell to the ground and the officer landed on top of him. Although
Dennings said he “gave up,” he was laying on his right arm and was “hesitant to
relinquish control of it.” J.A. 79. Police then discovered the loaded firearm in Dennings’
jacket pocket.
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A grand jury indicted Dennings on the charge of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Dennings pleaded guilty
without a written plea agreement.
Most of the presentence investigation report (the “PSR”) was uncontested. For
instance, Dennings did not challenge the PSR’s description of the offense conduct. Nor
did he object to the PSR setting his criminal history at V or the base offense level at
twenty and then modified upwards seven levels because the firearm was discharged and
downwards by three levels because of Dennings’ acceptance of responsibility.
But Dennings did object to the imposition of a two-level enhancement to his
offense level for “recklessly creat[ing] a substantial risk of death or serious bodily injury
to another person in the course of fleeing from a law enforcement officer” under U.S.S.G.
§ 3C1.2. He asserted that although he had fled from police, flight while possessing a
firearm in the pocket of his coat was insufficient to create a substantial risk of death or
serious bodily injury.
The district court considered this argument, but denied Dennings’ objection,
stating:
Dennings fled from the police while carrying a loaded gun, and the gun had
recently been discharged on the same date in another action, and he was
fleeing from the officers. And I believe that compares to the basis [for
applying the enhancement] in the Fourth Circuit . . . and . . . reinforced at
least by two other circuits. There is no circuit that I find that has followed
[Dennings’ view of the Guidelines].
J.A. 46. Based on that decision, the district court observed that Dennings’ total offense
level would be set at twenty-six, thereby establishing a Guidelines range of 110 to 137
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months’ imprisonment, which was capped by the statutory maximum of 120 months’
imprisonment. After hearing from the parties on the 18 U.S.C. § 3553(a) sentencing
factors, the district court “adopt[ed] the findings in the presentence report as credible and
reliable,” decided that a variance was not warranted, and sentenced Dennings to a term of
110 months’ imprisonment. J.A. 53–54.
Dennings noted a timely appeal, and we have jurisdiction under 18 U.S.C. § 3582
and 28 U.S.C. § 1291.
II.
We review sentences “under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). Improperly calculating the advisory Guidelines
range would constitute a procedural error that may require resentencing. United States v.
Hargrove, 701 F.3d 156, 161 (4th Cir. 2012) (observing that procedural errors during
sentencing, such as improperly calculating a Guidelines range, are subject to harmless-
error review). In assessing whether a sentencing court properly applied the Guidelines,
“we review the court’s factual findings for clear error and its legal conclusions de novo.”
United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006). 1
On appeal, Dennings argues the district court miscalculated his Guidelines range
because it erroneously imposed the two-level enhancement under § 3C1.2. Because
instinctive flight is not enough to warrant imposition of the enhancement, United States v.
1
We have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.
4
John, 935 F.2d 644, 648 (4th Cir. 1991), Dennings asserts that instinctive flight while
possessing a firearm in a jacket pocket would not trigger the enhancement either. This is
so, he contends, because armed flight while a firearm is secured to the person is the safest
instinctive flight option available to an armed individual. He claims that any other course
of conduct during flight would pose a greater risk. In addition, he maintains that because
the enhancement applies to other circumstances—such as when an individual holds,
waives, or tosses a firearm aside while fleeing from police—applying the enhancement to
his course of conduct would mean that the only available alternative to an armed
individual would be to surrender. We disagree with Dennings’ arguments and reading of
the record.
III.
Our review begins with the text of § 3C1.2, which states: “If the defendant
recklessly created a substantial risk of death or serious bodily injury to another person in
the course of fleeing from a law enforcement officer, increase [the offense level] by 2
levels.” U.S.S.G. § 3C1.2. The application notes elaborate that “reckless” has the same
definition as used in the involuntary manslaughter provision, see app. n.2, which
describes “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
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deviation from the standard of care that a reasonable person would exercise in such a
situation.” U.S.S.G. § 2A1.4, app. n.4. 2
We have limited case law considering the scope of § 3C1.2 and have not
previously examined § 3C1.2’s applicability to armed flight on foot in a published
opinion. But in United States v. Carter, 601 F.3d 252 (4th Cir. 2010), we affirmed the
district court’s decision to impose the § 3C1.2 enhancement based on an unarmed
individual fleeing from police on foot and entering a third party’s unlocked apartment
without permission. Id. at 253. We explained that “there is a substantial risk that is
inherent at any time anyone enters another’s home without permission” because the
occupant may respond with “violence and force to prevent such entry” or upon returning
home and discovering that individual. Id. at 255. Either of these circumstances could lead
to a “risk of serious bodily injury or death to the resident and the pursuing officers, as
well as other nearby residents and neighbors.” Id. at 255. We also reiterated that the
Guideline is based on the risk created by the defendant’s conduct and does not require
“that his conduct actually cause[d] physical harm.” Id. at 256.
We have also issued several unpublished cases involving armed flight on foot and
have affirmed the district court’s imposition of § 3C1.2’s enhancement when the
defendant fled while “holding a loaded firearm,” United States v. Page, 169 F. App’x
2
Dennings challenges only whether his conduct “recklessly created a substantial
risk of death or serious bodily injury.” He does not challenge that his acts occurred “in
the course of fleeing from a law enforcement officer.” See J.A. 44 (agreeing with the
district court during the sentencing hearing that Dennings “resisted arrest”); U.S.S.G.
§ 3C1.2 app. n.3 (stating that “during flight” should be “construed broadly and includes
preparation for flight” as well as conduct that “occurs in the course of resisting arrest”).
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782, 785 (4th Cir. 2006) (per curiam), engaged in a “brief struggle with [police] officers
while he was armed with [a] pistol,” United States v. Williams, 278 F. App’x 279, 280
(4th Cir. 2008) (per curiam), and pulled a firearm “from under his shirt and dropp[ed] it
as he ran,” United States v. Jefferson, 58 F. App’x 8, 9 (4th Cir. 2003) (per curiam); cf.
United States v. Brown, No. 17-4544, 2019 WL 1410697, at *5 (4th Cir. March 28, 2019)
(affirming imposition of § 3C1.2 enhancement when the defendant “jumped out of [a]
still-moving car with a firearm in his hand, fled on foot, and threw the firearm away”);
United States v. Grate, 81 F. App’x 451, 453 (4th Cir. 2003) (same when the defendant
initially held the firearm and then discarded it during flight from police through a
crowded parking lot); United States v. Washington, 80 F. App’x 850, 850–51 (4th Cir.
2003) (same when the armed defendant repeatedly tried to “retrieve something from his
right pants pocket” both during a flight by foot and once detained on the ground).
Of course, none of these cases are binding on us, save to the extent their reasoning
is persuasive. Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006)
(stating that unpublished “decisions have no precedential value, and they are entitled only
to the weight they generate by the persuasiveness of their reasoning”). But in these
unpublished decisions, we have reasoned, for example, that a physical altercation “in
which all the parties are armed carries an obvious risk that the struggle might escalate”
even where no injury results and the defendant’s firearm remains out of plain view.
Williams, 278 F. App’x at 281. We have also concluded that the requisite risk is created
during a defendant’s repeated efforts to reach into his waistband because the police could
not know his intent and his conduct “could easily have caused the officers to shoot in
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self-defense.” Washington, 80 F. App’x at 851. And although we have previously agreed
with a defendant who argued that § 3C1.2 did not apply to “mere” armed flight—an
argument Dennings also makes—we then distinguished that defendant’s conduct by
noting he had done “more than carry a firearm.” Jefferson, 58 F. App’x at 10. We
explained that by dropping a loaded firearm as he ran, the defendant had created a “risk
that the pistol would discharge accidentally when dropped which created a substantial
risk of injury to the pursuing officers” and, if “the officers [had] not found the gun, it
would have constituted a substantial risk of injury to the community.” Id.
We do not need to reassess whether mere armed flight would warrant application
of § 3C1.2 because Dennings did not engage in mere armed flight. Instead, as in the
above-cited cases, his situation involved flight-plus-something more. Specifically, the
PSR—which Dennings did not challenge as to its factual findings 3—recounts that he fled
3
To the extent that Dennings contends on appeal that the Court cannot rely on the
PSR’s recitation of the offense conduct, we disagree. The record demonstrates that
Dennings’ sole objection in the district court was whether the facts described in the PSR
merited imposition of § 3C1.2’s enhancement. While the district court and Dennings
engaged in a colloquy about the legal significance of those facts, at no time did he
challenge the PSR’s factual recitation of the offense conduct. When a defendant fails to
object to the PSR’s factual findings, the district court may rely on them without engaging
in further inquiry. E.g., United States v. Revels, 455 F.3d 448, 451 n.2 (4th Cir. 2006)
(“[W]hen a defendant fails to properly object to the relevant findings in his PSR, the
government meets its burden of proving those facts by a preponderance of the evidence,
and the district court is free to adopt the findings of the presentence report without more
specific inquiry or explanation”). And although the district court did not mention these
facts as part of its ruling, it referred to them during the colloquy about the enhancement’s
applicability, and it later adopted—again, without objection—“the findings in the [PSR]
as credible and reliable[.]” J.A. 53. Further, to the extent that our reasoning differs in any
respect from the district court’s articulated reasons, we are permitted to do so. See United
States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005) (“We are not limited to evaluation of
(Continued)
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from police sirens after having discharged a firearm. The police officer who gave chase
“observed [him] wearing a garment over his face, running.” J.A. 78. During the chase, the
police officer noticed that Dennings’ “right hand was not empty and freely swinging like
his left hand,” but he could not determine if Dennings “was digging into his pocket or
holding onto something.” J.A. 78. Dennings twice ignored the police officer’s
instructions to stop. And once the two men were on the ground, Dennings “was lying on
his right arm and was hesitant to relinquish control of it.” J.A. 79. The firearm was later
recovered from Dennings’ jacket pocket. In sum, the record reflects that while Dennings
was running, he behaved differently with his right hand than his left, his right hand was
holding or reaching near a firearm located in his jacket pocket, and he “was hesitant” in
relinquishing control of his right arm when that arm was also on or near a firearm.
Rather than being mere “instinctive flight,” Dennings’ conduct created a
substantial risk of death or serious bodily injury as required for § 3C1.2 to apply.
“[E]ndangering others during flight or in the course of resisting arrest involves active,
willful behavior; in contrast, mere flight or disagreeableness during an encounter involves
more passive or instinctive conduct.” John, 935 F.3d at 648. Here, while armed,
Dennings ignored repeated instructions from the officer to stop. As he did so, his right
arm and hand were moving in a way that suggested he had or was reaching for
something. And even once the police officer halted Dennings’ run, he continued to resist
the grounds offered by the district court to support its decision, but may affirm on any
grounds apparent from the record.”).
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arrest as evidenced by the officer’s statement that Dennings had fallen on his right arm
“and was hesitant to relinquish control of it.” J.A. 79. Regardless of whether Dennings
was carrying the firearm, putting it back in his pocket, reaching to retrieve it from his
pocket, or trying to keep it inside his pocket as he ran, his movements “created a
substantial risk of death or a serious bodily injury to another person.” That risk arose
from two possibilities: (1) Dennings’ firearm could have discharged, intentionally or
accidentally, and (2) Dennings’ behavior could have led the pursuing officer to draw his
own firearm in self-defense. Either of these circumstances would have created a risk to
the police officer chasing after Dennings, the other officers who were responding to the
report of gunshots, or innocent bystanders in the area. That no one was injured during
these events is of no moment because § 3C1.2 requires only that the defendant’s conduct
create a risk of that occurring.
Furthermore, Dennings’ conduct was reckless. The police officer had no way of
knowing the intent behind his movements, including the possibility that Dennings was
reaching for a firearm. Dennings thus did not exercise reasonable care by running with a
loaded firearm after being ordered to stop and moving his hands in a way that drew
attention to the risk he was reaching for a firearm. Accordingly, the district court did not
err in imposing the § 3C1.2 enhancement because Dennings’ behavior “carrie[d] an
obvious risk” that the situation “might escalate to the point that a firearm [was] used, or
discharge[d] accidentally.” Williams, 278 F. App’x at 281.
Our conclusion is supported by decisions in several sister circuits that armed flight
on foot coupled with hand movements toward or near a firearm hidden on the defendant’s
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person can satisfy the conditions for imposing § 3C1.2’s enhancement. See United States
v. Matchett, 802 F.3d 1185, 1197–98 (11th Cir. 2015) (affirming the decision to impose a
§ 3C1.2 enhancement when defendant wrestled with a police officer for three minutes
while the defendant had a loaded firearm in his pocket); United States v. Easter, 553 F.3d
519, 521–24 (7th Cir. 2009) (affirming the same when the defendant—while running—
reached toward the butt of a loaded gun, drew it out, and then fumbled with it); United
States v. Lee, 199 F.3d 16, 17 (1st Cir. 1999) (applying the same “substantial risk”
requirement in § 3A1.2 to note that “whatever [the defendant’s] purpose, his efforts to
seize his gun did create a substantial risk of bodily injury, whether from accidental
discharge or the threat of fire from the police”).
For example, in United States v. Bates, 561 F.3d 754 (8th Cir. 2009), the Eighth
Circuit affirmed the district court’s decision to apply § 3C1.2 to the defendant’s
Guidelines range calculation based on the defendant’s decision to (1) jump from a
moving vehicle that police were pursuing, (2) ignore the commands of police officers to
stop, (3) flee on foot while armed with a loaded weapon, and (4) “intentionally struggle[]
on the ground with the officer and continually reach[] toward his waistband during the
altercation.” Id. at 757. The Eighth Circuit rejected the defendant’s argument that the
enhancement should not apply because he had not “brandish[ed] his weapon during the
[foot] chase.” Id. In so doing, the court observed that Bates’ own intentional behavior
was sufficient to show by a preponderance of the evidence that he “recklessly created a
substantial risk of serious harm to others while fleeing from police.” Id. It did not matter,
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therefore that police did not discover the loaded firearm in the defendant’s waistband
until after he had been placed in handcuffs. See id. at 756.
Dennings, like the defendant in Bates, ignored repeated commands from a police
officer to stop running, continued to flee on foot while armed with a loaded weapon, and
appeared to be holding or reaching toward his right jacket pocket, where a loaded firearm
was later discovered. This conduct satisfies § 3C1.2’s requirement of recklessly creating
a substantial risk of death or serious bodily injury even though more egregious conduct
also falls within the scope of the Guideline.
IV.
For the reasons stated above, we hold that the district court did not commit
procedural error by including § 3C1.2’s two-level enhancement in calculating Dennings’
Guidelines range. Accordingly, we affirm the judgment of the district court.
AFFIRMED
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