United States v. Deckert

Case: 19-40292 Document: 00515813753 Page: 1 Date Filed: 04/08/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 19-40292
FILED
April 8, 2021
Lyle W. Cayce
United States of America, Clerk
Plaintiff — Appellee,
versus
Robert Ben Deckert,
Defendant — Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:18-CR-00019
Before Dennis, Southwick, and Ho, Circuit Judges.
James C. Ho, Circuit Judge:
The U.S. Sentencing Guidelines provide for a longer sentence—in the
form of a two-level enhancement—when a defendant not only commits a
crime, but also recklessly endangers others while fleeing a law enforcement
officer in hopes of evading arrest for that crime. U.S.S.G. § 3C1.2.
This appeal concerns the application of the two-level reckless
endangerment enhancement under U.S.S.G. § 3C1.2 to a certain category of
offenses known as “groupable” offenses. When it comes to certain
groupable offenses such as the drug trafficking offense at issue in this case,
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No. 19-40292
we apply the reckless endangerment enhancement even when the defendant
is not convicted for the specific crime from which he recklessly flees—so long
as the crime for which he is convicted is part of the “same . . . common
scheme or plan.” U.S.S.G. § 1B1.3(a)(2).
Because the facts of this case demonstrably satisfy the “same common
scheme or plan” standard, we affirm the district court’s application of the
two-level enhancement.
I.
Robert Ben Deckert met a Hardin County officer investigating a
suspicious trailer found on private property. Deckert told the officer he did
not own the trailer but was using it with the owner’s permission. Deckert
then left the premises. After determining that the trailer was stolen, officers
investigated and found 530 grams of methamphetamine and five firearms in
the trailer. A Hardin County court issued a warrant for Deckert’s arrest.
Three days later, a Lumberton police officer saw Deckert speeding on
his motorcycle through a business parking lot. Deckert refused to pull over
and led the officer on a high-speed chase in both residential and business
areas of Lumberton before he crashed. The officer searched Deckert and
found 615 grams of methamphetamine, a meth pipe, and five syringes, two of
which were full of methamphetamine. Police placed him under arrest.
Deckert waived his rights to an attorney. He admitted that he
trafficked in methamphetamine and that he had seen and handled at least four
of the firearms found in the trailer. A grand jury indicted Deckert on two
counts of possession with intent to distribute methamphetamine and one
charge of carrying a firearm during a drug trafficking offense. Deckert
pleaded guilty to the first methamphetamine charge as well as the firearm
charge.
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The presentence report included a two-level upward adjustment for
reckless endangerment during flight under U.S.S.G. § 3C1.2. Deckert
objected to the enhancement on the ground that his reckless flight was related
only to the second drug trafficking count, and therefore not related to the
offense of conviction. The district court rejected his argument. The court
instead concluded that the two drug offenses were part of the same “common
scheme or plan,” and therefore subject to the two-level enhancement
according to subsection (a)(2) of U.S.S.G. § 1B1.3.
Deckert appeals the sentencing enhancement.
II.
Deckert objected below and preserved his argument on appeal, so we
review the district court’s factual findings for clear error and its
interpretation of the Guidelines de novo. United States v. Halverson, 897 F.3d
645, 651 (5th Cir. 2018). A district court’s determination of relevant conduct
is reviewed for clear error. United States v. Barfield, 941 F.3d 757, 761 (5th
Cir. 2019).
A defendant’s relevant conduct is the conduct that a district court
considers when determining whether a sentencing enhancement is
appropriate. Section 1B1.3 of the Sentencing Guidelines provides different
definitions of relevant conduct based on the defendant’s offense of
conviction.
It takes careful parsing—including consideration of the overall
context of U.S.S.G. § 1B1.3—to understand why the district court was
ultimately correct under subsection (a)(2) that the two-level enhancement
applies here. So the relevant language from U.S.S.G. § 1B1.3 is copied here
in full—with the language most relevant to this appeal in italics. It provides
that the sentencing court shall take into consideration:
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(a) . . .
(1) (A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or
willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in
concert with others, whether or not charged as a
conspiracy), all acts and omissions of others that
were—
(i) within the scope of the jointly undertaken
criminal activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with
that criminal activity;
that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course
of attempting to avoid detection or responsibility for that
offense;
(2) solely with respect to offenses of a character for
which § 3D1.2(d) would require grouping of multiple
counts, all acts and omissions described in subdivisions
(1)(A) and (1)(B) above that were part of the same course
of conduct or common scheme or plan as the offense of
conviction . . . .
U.S.S.G. § 1B1.3 (emphasis added).
Under subsection (a)(1)(A), a defendant’s relevant conduct generally
consists of all acts and omissions that he committed or caused during, in
preparation for, or while covering up the offense for which he was convicted.
U.S.S.G. § 1B1.3(a)(1)(A). And under subsection (a)(1)(B), if the defendant
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has a partner in crime, the partner’s conduct can count, too. U.S.S.G.
§ 1B1.3(a)(1)(B).
Importantly, it is the trailing (or hanging) clause of subsection (a)(1)
that makes clear that either of these two categories of conduct must have
“occurred during the commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to avoid detection or
responsibility for that offense.” Because this clause trails behind the text of
subsections (a)(1)(A) and (a)(1)(B), we treat it as located within subsection
(a)(1)—and not within either subsections (a)(1)(A) or (a)(1)(B). See United
States v. Ainabe, 938 F.3d 685, 691 (5th Cir. 2019) (noting that the trailing
clause “belongs more generally to § 1B1.3(a)(1)”) (quoting United States v.
Valenzuela–Contreras, 340 F. App’x 230, 235 n.5 (5th Cir. 2009)).
As we shall see, the location of the trailing clause in subsection
(a)(1)—rather than within either subsection (a)(1)(A) or (a)(1)(B)—matters
to the proper resolution of this appeal. That is because this appeal concerns
the application of subsection (a)(2), not subsection (a)(1)—and because
subsection (a)(2) refers specifically to subsections (a)(1)(A) and (a)(1)(B),
and not more generally to everything in subsection (a)(1).
Subsection (a)(2) defines relevant conduct “solely with respect to
offenses of a character for which § 3D1.2 would require grouping of multiple
counts.” U.S.S.G. § 1B1.3(a)(2). For those types of offenses, the Guidelines
instruct courts to sentence a defendant based on how many times the
defendant has been charged with that conduct. U.S.S.G. § 3D1.2. For
example, if a defendant is charged with four counts of possessing a controlled
substance, the court must group those four counts together and then
calculate a single, combined offense level that will then be used to calculate
the sentence for each count. Because the point of grouping offenses is to take
into account multiple, similar offenses, the Guidelines naturally employ a
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different definition of relevant conduct for groupable offenses. U.S.S.G.
§ 1B1.3(a)(2).
Section 1B1.3(a)(2) defines the defendant’s relevant conduct for a
groupable offense as “all acts and omissions described in subdivisions (1)(A)
and (1)(B) above that were part of the same course of conduct or common
scheme or plan as the offense of conviction.” Id. Thus, when a defendant is
convicted of a groupable offense, courts should look to all acts and omissions
that were part of a similar course of conduct or common scheme as the
offense of conviction.
Accordingly, section 1B1.3(a)(2) presents the following question:
Does the reference to “all acts and omissions described in subdivisions (1)(A)
and (1)(B) above” incorporate the trailing clause of subsection (a)(1), which
requires that the acts and omissions occur during, in preparation for, or while
covering up the offense of conviction? We are not the first to note this
ambiguity. See, e.g., United States v. Hodge, 805 F.3d 675, 682–83 (6th Cir.
2015) (“There is an ambiguity as to whether the phrase in (a)(2)—‘all acts
and omissions described in subdivisions (1)(A) and (1)(B) above’—refers to
(a)(1)(A) and (a)(1)(B) with the trailing clause or without the trailing clause.”)
(quoting U.S.S.G. § 1B1.3(a)(2)).
A careful reading of subsection (a)(2) shows that it does not
incorporate the trailing clause of subsection (a)(1)—but rather, only the text
of subsections (a)(1)(A) and (a)(1)(B). As the Seventh Circuit has explained,
“[s]ubsection (a)(2) of the guideline specifically incorporates (a)(1)(A) and
(a)(1)(B) but says nothing about the trailing clause. In contrast, subsection
(a)(3) of the guideline refers to all of (a)(1) and not merely subsections
(a)(1)(A) and (a)(1)(B).” United States v. Johnson, 347 F.3d 635, 639 (7th Cir.
2003) (emphasis added). See also U.S.S.G. § 1B1.3(a)(3) (referring to “all
harm that resulted from the acts and omissions specified in subsections (a)(1)
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and (a)(2) above”). So because subsection (a)(2) references only subsections
(a)(1)(A) and (a)(1)(B)—and not subsection (a)(1) as a whole—and the only
difference between those provisions is the trailing clause, subsection (a)(2)
must not incorporate the trailing clause. See Ainabe, 938 F.3d at 691 (noting
that if subsection (a)(2) did include the trailing clause, “(a)(2) would have
referred broadly to section (a)(1)”) (quoting Valenzuela–Contreras, 340 F.
App’x at 235 n.5).
Moreover, this reading makes sense. To incorporate subsection
(a)(1)’s requirement that the act or omission occur during, in preparation for,
or while covering up the offense of conviction would render subsection
(a)(2)’s definition of relevant conduct as a “common scheme or plan”
superfluous. Furthermore, groupable offenses are grouped together because
they are of a similar character. See U.S.S.G. § 3D1.2. This characteristic of
groupable offenses tracks subsection (a)(2)’s definition of relevant conduct
as all acts and omissions that “were part of the same course of conduct or
common scheme or plan as the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(2). For these reasons, “a disjunctive interpretation of the
Relevant Conduct Guideline ‘ensure[s] that the statutory scheme is coherent
and consistent.’” United States v. Ashford, 718 F.3d 377, 383 (4th Cir. 2013)
(internal citation omitted) (quoting Healthkeepers, Inc. v. Richmond
Ambulance Auth., 642 F.3d 466, 472 (4th Cir. 2011)).
Not surprisingly, then, this court recently adopted this reading of
section 1B1.3 in Ainabe. We explained how, in a prior unpublished opinion,
we had previously rejected the defendant’s argument that subsection (a)(2)
incorporates (a)(1)’s trailing clause:
We rejected this argument in an unpublished opinion. In
United States v. Valenzuela–Contreras, we noted that “[t]he
plain language of § 1B1.3(a)(2) only refers to [(a)](1)(A) and
[(a)](1)(B), not the ‘occurred during the commission’ language
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which belongs more generally to § 1B1.3(a)(1). Otherwise,
(a)(2) would have referred broadly to section (a)(1).” . . . The
reasoning in Valenzuela–Contreras is cogent and persuasive
because it is supported by the text of the Guidelines, and we
apply that reasoning here.
938 F.3d at 691 (alteration in original) (quoting Valenzuela–Contreras, 340 F.
App’x at 235 n.5).1
And notably, every other circuit to address this issue has reached the
same conclusion. See, e.g., United States v. Schock, 862 F.3d 563, 569 n.6 (6th
Cir. 2017) (“The Guidelines draw a distinction between (a)(1) and (a)(2)
relevant conduct. It is one we must respect.”); Ashford, 718 F.3d at 383;
United States v. McCants, 434 F.3d 557, 563 (D.C. Cir. 2006) (describing
(a)(1) and (a)(2) as “distinct criteria”); Jansen v. United States, 369 F.3d 237,
248 (3rd Cir. 2004) (“Section (a)(2) stands on its own and is not expanded
or superseded by the provisions of Section (a)(1)”); Johnson, 347 F.3d at 639(holding that “the reference to subsections [(a)](1)(A) and [(a)](1)(B) in
U.S.S.G. § 1B1.3(a)(2) refers only to the subsections themselves and not the
trailing clause.”); United States v. Cuthbertson, 138 F.3d 1325, 1327 (10th Cir.
1998) (recognizing that “[s]ubsections (a)(1) and (a)(2) adopt different
rules”) (quoting U.S.S.G. § 1B1.3, cmt. background).
Deckert’s offense of conviction, possession of a controlled substance,
is a groupable offense under § 3D1.2(d). See U.S.S.G. § 1B1.3(a)(2) (covering
offenses “of a character for which § 3D1.2(d) would require grouping of
1
Valenzuela-Contreras also noted that “the commentary accompanying § 1B1.3
contemplates scenarios in which acts and omissions that are part of the ‘same course of
conduct or common scheme or plan’ may be included under § 1B1.3(a)(2) but do not occur
during, in preparation for, or in the course of attempting to avoid detection or responsibility
for the offense of conviction.” 340 F. App’x at 235 n.5 (citing U.S.S.G. § 1B1.3 cmt. n.3).
See also Ainabe, 938 F.3d at 691 n.18 (collecting examples).
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multiple counts”); U.S.S.G. § 3D1.2(d) (requiring grouping “[w]hen the
offense level is determined largely on the basis of . . . the quantity of a
substance involved”). This means that Deckert’s relevant conduct is
defined by § 1B1.3(a)(2), and thus includes all acts and omissions that were
part of the same common scheme or plan as his offense of conviction.
“Conduct is part of a common scheme or plan if it is ‘substantially
connected to [the offense of conviction] by at least one common factor, such
as common victims, common accomplices, common purpose, or similar
modus operandi.’” United States v. Heard, 891 F.3d 574, 575–76 (5th Cir.
2018) (quoting United States v. Ortiz, 613 F.3d 550, 557 (5th Cir. 2010)). See
also U.S.S.G. § 1B1.3 cmt. n.5(B). In a drug-trafficking case, relevant conduct
includes acts that were part of the common drug-trafficking scheme.
Barfield, 941 F.3d at 762. Here, Deckert was caught with large, similar
amounts of methamphetamine twice in four days in close geographic
proximity. Because his flight from the police was part of that drug-trafficking
scheme, the district court properly considered that conduct and thus
properly applied the reckless endangerment enhancement.
III.
It is puzzling why the dissent disagrees with our analysis. After all, the
dissent previously agreed with the same reading of subsection (a)(2) that we
apply here, when it joined our court’s unanimous opinion in Ainabe.
For its part, the dissent defends its refusal to apply subsection (a)(2)
here by invoking United States v. Southerland, 405 F.3d 263 (5th Cir. 2005).
That is curious, considering that Southerland concerns the nexus
requirement of subsection (a)(1), not the nexus requirement of subsection
(a)(2).
As Southerland explains, under subsection (a)(1), the reckless
endangerment enhancement applies only to those “acts or omissions
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occurring during the offense of conviction, the preparation for the offense of
conviction, or the course of attempting to avoid detection or responsibility
for the offense of conviction.” Id. at 268 (quoting U.S.S.G. § 1B1.3(a)(1)).
By contrast, Southerland makes no pronouncement about the proper use of
the reckless endangerment enhancement as applied to offenses covered by
subsection (a)(2). Indeed, nowhere in Southerland does the court even
mention, let alone construe, subsection (a)(2).
If there is a valid basis for ignoring Ainabe and invoking Southerland in
this case—even though the sentencing enhancement here arises under
subsection (a)(2) rather than subsection (a)(1)—the dissent does not offer
one. The dissent offers no theory to explain why it is wrong to apply
subsection (a)(2) to this case. Nor does the dissent explain why we should
not apply the very same nexus requirement under subsection (a)(2) that it
embraced in Ainabe.
***
Section 1B1.3(a)(1) and (a)(2) contain different definitions of the
relevant conduct. This case involves the definition in (a)(2). The district
court here correctly applied that definition, and thus properly applied the
reckless endangerment enhancement. Accordingly, we affirm.2
2
Deckert also appeals the denial of his motions to suppress. But he waived the
right to raise that challenge on appeal in his unconditional guilty plea. See, e.g., United
States v. Stevens, 487 F.3d 232, 238 (5th Cir. 2007).
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James L. Dennis, Circuit Judge, dissenting in part and concurring in part in
the judgment:
I respectfully dissent from affirming the 2-level enhancement of
Deckert’s sentence for reckless endangerment during flight because it is
inconsistent with our circuit precedent, United States v. Southerland, 405
F.3d 263 (5th Cir. 2005) and the sentencing guidelines. The flight
adjustment was based on an incident that occurred when a Lumberton, Texas
city police officer sought to arrest Deckert for a traffic violation on February
10, 2018. Because the flight did not have a nexus to Deckert’s “offense of
conviction” of possessing methamphetamines and firearms on a separate
date, February 6, 2018, near Silsbee, Texas the adjustment was not
permissible under the United States Sentencing Guidelines. On a different
issue, however, I agree with the majority that Deckert waived his right to re-
urge his motions to suppress by entering an unconditional guilty plea.
Deckert pleaded guilty, without a plea agreement, to a drug offense
and related firearm offense committed on February 6, 2018 near Silsbee,
Texas. He did not plead guilty to any other offense. Deckert was also
charged with a different drug offense committed in Lumberton, Texas on
February 10, 2018. But Deckert did not plead guilty to that charge and it was
dismissed. Therefore, the offense committed on February 6, 2018 near
Silsbee, Texas is Deckert’s only “offense of conviction” in the present case.
The “Application Instructions” to the United States Sentencing
Guidelines, § 1B1.1, provide that the sentencing court shall determine the
guideline range by applying the provisions of the guidelines manual in the
following order, starting with these three steps:
(1) Determine, pursuant to § 1B1.2 (Applicable Guidelines),
the offense guideline section from Chapter Two (Offense
Conduct) applicable to the offense of conviction. See § 1B1.2.
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(2) Determine the base offense level and apply any appropriate
specific offense characteristics, cross references, and special
instructions contained in the particular guideline in Chapter
Two in the order listed.
(3) Apply the adjustments as appropriate related to victim, role,
and obstruction of justice from Parts A, B, and C of Chapter
Three.
U.S.S.G. § 1B1.1 (emphasis added).
The district court’s first step in calculating a defendant’s sentence is
to determine the offense guideline “applicable to the offense of conviction.”
See U.S.S.G. § 1B1.1(a)(1). Thus, the Guidelines are clear that the “offense
of conviction” is the key element in the sentencing process; the “offense of
conviction” is the anchoring standard around which all other specific offense
characteristics, adjustments, and instructions are gathered in order to
determine a particular guideline range for a given defendant.
Necessarily, these principles govern the application of a § 3C1.2
adjustment for “reckless endangerment during flight.” The adjustment
provides that “[i]f 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 by 2 levels.” Id. § 3C1.2. In United States v.
Southerland, this court “read § 3C1.2 in the larger context of the guidelines,”
405 F.3d at 266, and held that, “in light of § 1B1.3’s express requirement that
Chapter Three adjustments be based upon acts or omissions occurring during
the offense of conviction, the preparation for the offense of conviction, or the
course of attempting to avoid detection or responsibility for the offense of
conviction,” a § 3C1.2 enhancement can apply only when there is a “nexus”
between the defendant’s flight and the “offense of conviction.” Id. at 268.
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Section 1B1.3, “Relevant Conduct (Factors that Determine the
Guideline Range),” in relevant part, reads:
(a) Chapters Two (Offense Conduct) and Three
(Adjustments). Unless otherwise specified, . . . (iv)
adjustments in Chapter Three, shall be determined on the basis of
the following:
(1)(A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused
by the defendant; . . .
that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense . . . .
§ 1B1.3(a) (emphasis added); see Southerland, 405 F.3d at 267.
Southerland therefore recognized that Guidelines themselves are the
source of the nexus requirement. In light of this requirement, the Southerland
court rejected the government’s argument that no connection or nexus
between the flight and the offense of conviction was needed because the
§ 3C1.2 adjustment itself did not mention a nexus, see Southerland, 405 F.3d
at 268, and also rejected the government’s argument that a defendant who
flees from law enforcement is necessarily attempting to evade responsibility
for other potential charges because such reasoning was inconsistent with the
need for a finding of a nexus as required by § 1B1.3(a). Id. at 269.
Against this precedent, the majority erroneously reasons that
Southerland is inapplicable because it involved a defendant who pleaded
guilty to bank robbery and credit card fraud, see id. at 263, and did not involve
a “groupable offense” like the drug offense that Deckert pleaded guilty to
violating. From this unauthorized distinction, the majority erroneously
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concludes that no nexus between the flight and the offense of conviction is
required when a defendant is convicted of a groupable offense involving a
“common scheme or plan” to possess drugs.
The majority’s conclusion fails to recognize that Southerland’s
holding and its reasoning are faithful applications of U.S.S.G. § 1B1.3(a) that
are not contingent on the type of offenses that a defendant is convicted of
violating. Whether there is a nexus such that the § 3C1.2 adjustment can be
applied resolves this case. If there is no nexus, the adjustment cannot be
applied. There is no basis for a sentencing court, if it cannot find a nexus, to
then continue into (a)(2) to apply an adjustment. In addition to Southerland,
all of the circuit courts of appeals to consider this issue agree that the § 3C1.2
adjustment applies only if there is a nexus between the flight and the offense
of conviction. See e.g. United States v. Seals, 813 F.3d 1038, 1045–46 (7th Cir.
2016) (collecting cases); United States v. Porter, 413 F. App’x 526, 531 (3rd
Cir. 2011); United States v. Dial, 524 F.3d 783, 787 (6th Cir. 2008); United
States v. Gray, 512 F. App’x 803, 809 (10th Cir. 2013); see also Thomas W.
Hutchison, et al, Federal Sentencing Law and Practice,
§ 3C1.2, at 1072 (2021 ed.). None of the inapposite cases cited by the
majority are to the contrary, as they do not sanction applying a § 3C1.2
adjustment absent a nexus.
Applying these foregoing principles to this case, it is clear that
Deckert’s flight from a police officer on February 10 lacks a nexus with his
offenses of conviction of possessing drugs and firearms on February 6.
Nothing in the record proves that Deckert’s flight on February 10 was
integral to, or part of, his February 6 offense of conviction or an attempt to
evade responsibility for his February 6 offense of conviction. Indisputably,
Deckert’s February 6 offenses of conviction did not involve a flight or a
motorcycle. The government has arguably proved, at most, that Deckert’s
flight from a Lumberton, Texas city police officer was related to his traffic
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offense and the drugs in his backpack on February 10. But Deckert did not
plead guilty to possessing drugs on February 10 and that drug charge was
dismissed. Deckert only pleaded guilty to possessing drugs and firearms on
February 6, near Silsbee, Texas, and the Guidelines nowhere permit a district
court to substitute a different “offense” for the “offense of conviction”
when calculating a sentence, including in the application of a flight
adjustment. Thus, the district court erred in applying the § 3C1.2
adjustment, and in my view we should therefore vacate and remand for
resentencing.
Because the majority holds otherwise, I respectfully dissent.
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