United States v. Richard Mukes

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0360p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 20-5134
v. │
│
│
RICHARD MUKES, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 2:19-cr-20095—Mark S. Norris, Sr., District Judge.
Argued: October 20, 2020
Decided and Filed:November 17, 2020
Before: MERRITT, MOORE, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert L. Thomas, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis,
Tennessee, for Appellant. Raney Irwin, UNITED STATES ATTORNEY’S OFFICE, Memphis,
Tennessee, for Appellee. ON BRIEF: Robert L. Thomas, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Raney Irwin, UNITED STATES
ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. The district court sentenced Richard Mukes to
a term of 120 months’ imprisonment after he pled guilty to possessing a firearm as a convicted
No. 20-5134 United States v. Mukes Page 2
felon. See 18 U.S.C. § 922(g)(1). Mukes appeals his sentence because he believes that the
district court improperly calculated his sentencing guidelines range. Specifically, he argues that
the district court erred in applying a four-point enhancement for using or possessing a firearm in
connection with another felony offense, U.S.S.G. § 2K2.1(b)(6)(B), and in applying a two-point
enhancement for reckless endangerment during flight, § 3C1.2. Mukes further contends that the
district court erred in denying him a two-point reduction for acceptance of responsibility,
§ 3E1.1. Because the government failed to demonstrate that either enhancement was applicable
on this record, the district court erred in applying them. We therefore vacate Mukes’s sentence
and remand the case to the district court for resentencing on the existing record with instructions
not to apply either enhancement. In light of our decision on the enhancements, the district court
should consider whether Mukes may receive the two-point reduction for acceptance of
responsibility.
I.
Mukes was arrested after a dispute with his girlfriend, Victoria Davis. He was charged in
a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1), to which he pled guilty. While Mukes does not dispute that he unlawfully possessed
a firearm, he does dispute the facts surrounding the charge, which are relevant for the sentencing
enhancements at issue in this appeal.
At the time of the incident, Mukes was living with Davis in a home owned by Davis’s
mother. In the early morning hours of October 5, 2018, Davis and Mukes had an argument.
There are two accounts of what happened next. Davis told police that around 2:20 a.m. Mukes
retrieved a firearm that he kept in the shared residence, exited the home, and that Davis locked
the door behind him. Davis said that Mukes subsequently fired the gun into the air. Davis
telephoned the police and Mukes left the scene. According to Davis, Mukes returned a half hour
later and attempted to enter the home. Davis said that when she refused to let Mukes inside, he
again fired the gun into the air, firing a total of four shots that night. Davis telephoned the police
a second time. The record of arrest stated that Davis remained inside her home for the duration
of the altercation. Davis said that her mother, brother, and two nephews were also in the home
when this incident occurred.
No. 20-5134 United States v. Mukes Page 3
Mukes disputed Davis’s version of events. He denied ever firing the weapon or
threatening Davis. According to Mukes, he and Davis had argued about their relationship earlier
that night and Davis told him to come retrieve his clothing. Mukes said that his cousin drove
him to Davis’s home. Mukes denied entering the home, stating that Davis would not let him in.
He claimed that he already had the firearm in his possession, maintaining that Davis knew that
he always carried it on his person, but denied brandishing or firing it. Mukes said that Davis
came outside and they argued briefly. According to Mukes, Davis said that she was not “going
to stand out here and talk to [him]” and went inside to call the police because she knew he had a
gun on his person. DE 48, Sent. Tr., Page ID 143. By this point, Mukes said that his cousin had
left with the car, so he walked away from the house. Mukes agreed that he returned a short while
later, in a second attempt to retrieve his clothing. He denied firing the gun at any point that
night.
The events surrounding Mukes’s arrest are also disputed, and the government has not
provided a consistent narrative. The government and Mukes agree that when police responded to
Davis’s second call, officers observed Mukes walking away from the residence while holding a
black handgun. They also agree that officers told Mukes to drop the gun. And they agree that
Mukes fled from the officers before being caught shortly thereafter. Officers recovered the
handgun, which was loaded. But the parties disagree about when precisely Mukes dropped the
gun. The record of arrest stated that Mukes threw the weapon while fleeing from the police. The
affidavit of complaint stated that Mukes dropped the firearm before he began to flee. The
government provided no witness testimony clarifying this discrepancy. Mukes’s testimony
supported the version of events described in the affidavit of complaint: he repeatedly insisted that
he dropped the gun in response to police commands before turning to flee the scene.
At the plea hearing, Mukes admitted that he possessed the firearm but disputed the
government’s recitation of the facts regarding his alleged discharge of the gun and subsequent
flight. His counsel noted that these contested facts would implicate “sentencing issues that may
result in enhancements.” DE 49, Change Plea Hr’g, Page ID 233. The government accepted
Mukes’s stipulation that he knowingly possessed the firearm as sufficient for purposes of the
guilty plea.
No. 20-5134 United States v. Mukes Page 4
The presentence report adopted the version of events in the record of arrest—that Mukes
had dropped the firearm after he had already begun to flee—without mentioning the conflicting
affidavit. The presentence report calculated Mukes’s base offense level at 24, due to his prior
felony convictions, and recommended two enhancements. The first was a four-point
enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for using a firearm in connection with another
felony offense. The stated basis for this enhancement was discharging the firearm and pending
charges for “Reckless Endangerment-Deadly Weapon” in state court. The presentence report
also recommended a two-point enhancement under U.S.S.G. § 3C1.2 for recklessly creating a
substantial risk of death or serious bodily injury to another person while fleeing from a law
enforcement officer. The stated basis for this enhancement was that Mukes threw the firearm
while fleeing. With a total offense level of 30 and a criminal history category of III, the
recommended sentencing guidelines range was 121 to 151 months imprisonment. Since the
statutory maximum for violations of 18 U.S.C. § 922(g)(1) is 10 years, the guideline term of
imprisonment was 120 months. See § 924(a)(2); U.S.S.G. § 5G1.1(a). Mukes subsequently
objected to the presentence report, raising the same disputed facts.1
Mukes and the government requested an evidentiary hearing because they were unable to
resolve the disputed facts regarding the discharge of the firearm and Mukes’s flight.2 The
government introduced Davis’s statement to police on the night of the arrest, the arrest record,
the affidavit of complaint, the Shelby County sheriff’s office gang log, and several recordings of
jailhouse telephone calls between Mukes and Davis. On the telephone calls, Davis can be heard
yelling at Mukes that he had threatened her and her family, hit her in the face, put a gun to a
1
Mukes also disputed the presentence report’s conclusion that he was a member of a gang, apparently to
avoid placement in prison around the gang members. Much of the government’s focus during the sentencing
hearing involved whether Mukes was an active gang member, which the government admitted did not affect the
calculation of the sentencing guidelines.
2
Before either side had presented evidence at the evidentiary hearing, the district court stated that it was
“inclined to agree” with the government’s version of events, but that it would “try to keep an open mind here as [it]
entertain[ed] the proof.” DE 48, Sent. Tr., Page ID 133. As we have “repeatedly noted, ‘great care must be taken by
a judge to always be calmly judicial, dispassionate and impartial.’” Anderson v. Sheppard, 856 F.2d 741, 745 (6th
Cir. 1988) (quoting United States v. Hickman, 592 F.2d 931, 933 (6th Cir. 1979)). “We require not only an absence
of actual bias, but an absence of even the appearance of judicial bias.” Id. at 746. Although the district court made
no further comments indicating an absence of impartiality during the hearing, its remarks at the outset are a
troubling departure from the appearance of impartiality that judges must maintain at all times.
No. 20-5134 United States v. Mukes Page 5
person’s head, and had fired the gun multiple times that night. Mukes cried on the calls but did
not explicitly deny Davis’s allegations, although he denied them at the hearing. Mukes testified
at the hearing, relaying his account of the night’s events as detailed above.
The government argued that the four-point enhancement for using a firearm in connection
with another felony offense was justified because Mukes had discharged the firearm into the air
four times, which constituted felony reckless endangerment under Tennessee law. The
government pointed to Davis’s statement and Mukes’s silence on the calls as evidence sufficient
to support the enhancement. Mukes argued that the government had not met its burden to show
that the enhancement applied based on that evidence alone.
The government also argued that the two-point enhancement for reckless endangerment
during flight was appropriate because Mukes had thrown down the firearm while being pursued
by police. The government argued that either Mukes’s flight with the firearm or his dropping of
it would each independently provide the factual basis for the enhancement. While the
government acknowledged that Mukes stated that he dropped the weapon upon command before
fleeing, the government argued that the “more detailed” record of arrest “clearly shows that
[Mukes] was ordered to throw the weapon down and did not,” and instead “threw” the weapon as
he was being chased. DE 48, Sent. Tr., Page ID 172. The government did not mention the
conflicting affidavit of complaint, which was signed by the same officer who wrote the unsworn
record of arrest. Mukes argued that the government failed to meet its burden to support the
enhancement, noting that the only sworn document in the record—the affidavit of complaint—
supported his account that he dropped the firearm when ordered, before fleeing. Mukes also
argued that the government failed to show that there was a substantial threat because the
government put on no evidence about the presence of bystanders in the vicinity or any danger to
the officers.
Finally, the government opposed granting Mukes any reduction for acceptance of
responsibility because Mukes “frivolously contested” firing the gun, threatening Davis, and
throwing the gun on the ground while fleeing police. Mukes argued that he should receive the
reduction based on his previously filed statement accepting responsibility for the offense charged
in the indictment. Since the evidence of whether he had discharged the firearm was his word
No. 20-5134 United States v. Mukes Page 6
against Davis’s unsworn recording and police statement, Mukes argued that he should not be
penalized for contesting those facts when he accepted responsibility for the crime with which he
was charged.
The district court concluded that the four-point enhancement for using or possessing a
firearm in connection with another felony was appropriate, although it is not clear on what
grounds. It stated that Mukes’s indictment in state court was “sufficient in and of itself ” to
justify the enhancement, but, even if insufficient, that the government established the necessary
proof that Mukes had discharged the gun. DE 48, Sent. Tr., Page ID 186.
The district court also concluded that the two-point enhancement for reckless
endangerment during flight was appropriate, regardless of “whether the gun was dropped upon
the police officer’s command or simply dropped or thrown by [Mukes] independently.” Id. at
187. “[I]n any event,” the court concluded, the government “had established by a preponderance
of the evidence . . . that [Mukes] recklessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from law enforcement.” Id. The court did not
identify any person whom Mukes had placed at substantial risk of death or injury.
Finally, the district court declined to grant Mukes a two-point reduction for acceptance of
responsibility. Since the court concluded that the government had established its version of the
facts by a preponderance of the evidence, the court thought that a reduction for acceptance of
responsibility was inappropriate.
After considering the 18 U.S.C. § 3553 factors, the court sentenced Mukes to the
statutory maximum of 120 months imprisonment. Mukes appealed.
II.
Mukes raises three issues on appeal. First, he argues that the district court erred in
applying the U.S.S.G. § 2K2.1(b)(6)(B) enhancement for using or possessing a firearm in
connection with another felony because the government did not meet its burden to show that
Mukes committed “another felony offense.” Second, Mukes argues that the district court erred
in applying the § 3C1.2 enhancement for reckless endangerment during flight because the
No. 20-5134 United States v. Mukes Page 7
government did not establish that Mukes dropped or threw a weapon while fleeing from police.
Third, Mukes argues that the district court erred in denying him the two-point reduction for
acceptance of responsibility under § 3E1.1 when he had accepted responsibility for the charged
offense but challenged the facts surrounding the two sentencing enhancements. Because we
agree that the district court erred in applying the two sentencing enhancements, we vacate
Mukes’s sentence and remand the case to the district court for resentencing on the existing
record. On remand, the district court is not to apply the § 2K2.1(b)(6)(B) enhancement because
Mukes’s alleged conduct does not amount to a felony under Tennessee law. The district court
also may not apply the § 3C1.2 enhancement because the government failed to meet its burden of
proof, and we see no reason to allow the government an additional opportunity to make its case.
In light of our decision on the two enhancements, the district court should consider whether
Mukes may receive the two-point reduction for acceptance of responsibility, § 3E1.1.
A.
First, Mukes argues that the district court erred in applying the four-point enhancement
for using or possessing a firearm in connection with another felony offense. We agree. Because
there was no evidence in the record that Mukes had committed “another felony offense,” it was
error for the district court to apply this sentencing enhancement.
The enhancement under U.S.S.G. § 2K2.1(b)(6)(B) increases the defendant’s offense
level by four “[i]f the defendant . . . used or possessed any firearm or ammunition in connection
with another felony offense.” For this enhancement to apply, the firearm must have “facilitated,
or had the potential of facilitating, another felony offense.” § 2K2.1 cmt. n.14(A). “Another
felony offense” is any “federal, state, or local offense” that is “punishable by imprisonment for a
term exceeding one year, regardless of whether a criminal charge was brought, or a conviction
obtained.” Id. cmt. n.14(C). The burden of proof for this enhancement falls on the government.
United States v. Goodman, 519 F.3d 310, 321 (6th Cir. 2008). We review the district court’s
legal interpretation of the sentencing guidelines de novo and its factual findings under the clearly
erroneous standard. United States v. Byrd, 689 F.3d 636, 639 (6th Cir. 2012). We give “‘due
deference’ to the district court’s determination that the firearm was used or possessed ‘in
connection with’ the other felony, thus warranting the application of the . . . enhancement.”
No. 20-5134 United States v. Mukes Page 8
United States v. Seymour, 739 F.3d 923, 929 (6th Cir. 2014) (alteration in original) (quoting
United States v. Taylor, 648 F.3d 417, 432 (6th Cir. 2011)).
The purported “other felony” Mukes committed was the Tennessee felony offense of
reckless endangerment with a firearm, because he “fired the pistol.” CA6 R. 23, Appellee Br., at
14. Mukes had been charged in Shelby County, Tennessee with a Class E felony for “Reckless
Endangerment- Deadly Weapon,” in violation of Tenn. Code Ann. § 39-13-103. Tennessee v.
Mukes, C1904576, Shelby County Criminal Justice System Portal (indicted May 10, 2019). That
charge was later dismissed by entry of an order of nolle prosequi. Id. (disposed of Oct. 7, 2020).
The government has repeatedly and consistently stated that Mukes committed this state felony
when he fired four shots into the air and that this state charge served as the predicate felony to
justify the enhancement. The district court agreed to apply the enhancement, finding that the
Shelby County indictment was “sufficient in and of itself ” to justify the enhancement, and, even
if it was not sufficient, that the government established the necessary proof that Mukes had
discharged the gun. DE 48, Sent. Tr., Page ID 186.
The district court’s conclusion that the state court indictment was “sufficient in and of
itself ” was incorrect. A sentencing court may consider all relevant evidence, whether or not
such evidence would be admissible at trial, as long as it has “sufficient indicia of reliability to
support its probable accuracy.” U.S.S.G. § 6A1.3(a). But an indictment, standing alone, cannot
be used “as evidence that all conduct charged in the indictment occurred.” United States v.
Crowell, 997 F.2d 146, 149 (6th Cir. 1993). Instead, “due process requires . . . some evidentiary
basis beyond mere allegation in an indictment.” United States v. Smith, 887 F.2d 104, 108 (6th
Cir. 1989) (emphasis omitted). Therefore, it was error for the district court to rely solely on the
indictment in state court to establish that Mukes had used the firearm in the commission of
“another felony.”
In any event, the district court erred in applying this enhancement because Mukes did not
violate Tenn. Code Ann. § 39-13-103. Tennessee law is clear: a defendant must do more than
fire a gun into the air to be guilty of this felony. Because the record is devoid of evidence that
anyone was in the vicinity when Mukes allegedly discharged the gun, he could not have violated
§ 39-13-103. Therefore, the enhancement under § 2K2.1(b)(6)(B) is inapplicable.
No. 20-5134 United States v. Mukes Page 9
Under Tennessee law, a person commits reckless endangerment if he “recklessly engages
in conduct that places or may place another person in imminent danger of death or serious bodily
injury.” Tenn. Code Ann. § 39-13-103(a). The offense is a felony when committed with a
deadly weapon. Id. § 39-13-103(b)(2). “Imminent danger” occurs when a person is “placed in a
reasonable probability of danger as opposed to a mere possibility of danger.” State v. Payne,
7 S.W.3d 25, 28 (Tenn. 1999) (citing State v. Fox, 947 S.W.2d 865, 866 (Tenn. Crim. App.
1996)). Tennessee law requires that when the victim is the “public at large,” the government
must show that there was at least one person within the “zone of danger.” Id. The “zone of
danger” consists of “that area in which a reasonable probability exists that the defendant’s
conduct would place others in imminent danger of death or serious bodily injury if others were
present in that zone or area.” Id.
In Fox, the defendant had been convicted of reckless endangerment because he fired a
pistol into the air or at a tree while standing outside an apartment building. 947 S.W.2d at 865.
The Tennessee appeals court found insufficient evidence to sustain the conviction because there
“was no testimony that anyone was either in the tree being fired upon or outside the apartment
building in the immediate vicinity of the [defendant].” Id. Indeed, the court held that the “mere
discharge of a weapon into the air . . . standing alone, is not sufficient to constitute commission
of reckless endangerment.” Id. at 866.
We considered this Tennessee statute as the basis for a § 2K2.1(b)(6)(B) enhancement in
two similar cases. In both cases, the defendant was alleged to have fired a gun into the air. See
United States v. Maxon, 250 F. App’x 129, 133 (6th Cir. 2007); United States v. Lester, 238 F.
App’x 80, 85 (6th Cir. 2007). And in both cases, we determined that the enhancement was
appropriate based on the Tennessee statute because the district court had found other people to
be within the “zone of danger.” Maxon, 250 F. App’x at 133–34 (“Defendant’s conduct placed
the officers and others outside ‘in a reasonable probability of danger’ when he fired the rifle into
the air in an area where others, including the arresting officer, were present.”); Lester, 238 F.
App’x at 86 (“Based on the evidence of the children’s close proximity to Lester when he fired
the gun, we will defer to the district court’s determination that the bystanders were in imminent
danger of death or serious bodily injury.”). Both Maxon and Lester held that Fox was “readily,”
No. 20-5134 United States v. Mukes Page 10
Maxon, 250 F. App’x at 133, and “easily distinguishable” Lester, 238 F. App’x at 86, because
officers, passersby, or children were in the vicinity when the defendants fired their weapons into
the air.
This case is not distinguishable from Fox. It is Fox. There is no evidence in the record
that anyone was in the vicinity when Mukes allegedly fired four shots into the air between two
and three a.m. In the government’s version of events, Davis remained inside the home. See Fox,
947 S.W.2d at 865 (noting that while there was an apartment building in the immediate vicinity,
the defendant was not guilty under § 39-13-103 because no one was outside the building).
And unlike in Maxon, there were no police officers on the scene at the time. Because the
government did not present evidence that there was anybody within the “zone of danger” that
faced a “reasonable probability” of “imminent danger of death,”3 the district court’s conclusion
that Mukes violated the statute by firing the gun into the air was incorrect.4 See Payne,
3
At oral argument, we first raised the issue of this line of Tennessee cases with defense counsel, while
advising the Assistant U.S. Attorney that we wanted her to have an opportunity think about them too. Oral
Argument at 2:17–3:49. When we asked the AUSA about the cases during her argument, her response was that
“under 14(A) of the application note, if the firearm had the potential to facilitate another felony offense, then it
doesn’t matter whether the criminal charge was brought or a conviction was obtained on that.” Id. at 12:16–12:31.
It is true that a defendant need not face charges or be convicted of the other felony offense for the enhancement to
apply. See U.S.S.G. § 2K2.1 cmt. n.14(C). But the “felony must be specifically identifiable” and the government
“must then demonstrate that the defendant used a firearm ‘in connection with’ that offense by showing that ‘the
weapon facilitated or potentially facilitated the felonious conduct or emboldened the defendant during the felonious
conduct.’” United States v. Bullock, 526 F.3d 312, 317 (6th Cir. 2008) (quoting United States v. Carter, 355 F.3d
920, 925 (6th Cir. 2004)). As we pointed out to government counsel, that requires the existence of an underlying
felony offense, as opposed to conduct that does not constitute a felony under state law. The mere potential of
committing some unidentifiable future felony is insufficient to sustain the enhancement. Counsel’s response to the
question simply misstated the law.
4
The district court may have also believed that the enhancement was warranted because Mukes violated
Tenn. Code Ann. § 39-13-103 even without discharging the firearm. DE 48, Sent. Tr., PageID 186 (stating that “the
discharge of the firearm in terms of application of 2K2.1(b)(6)(b) is immaterial”). But this conclusion would also
constitute error. At sentencing, the government made references to telephone calls in which Davis said that Mukes
had punched her and pointed a firearm at a person called “Man,” although it is unclear when this may have occurred.
Nothing in the record connects these incidents temporally or otherwise to the offense charged here. And the
government did not rely on either of these incidents to satisfy the “other felony” requirement; the government relied
instead on the allegation that Mukes discharged the firearm into the air. To the extent that the district court
considered the bare allegations in the calls, they would not have supported the court’s finding that Mukes violated
Tenn. Code Ann. § 39–13–103. There is no evidence that Mukes punched Davis while using or possessing a
firearm. Cf. United States v. Suggs, 423 F. App’x 501, 505 (6th Cir. 2011) (holding enhancement appropriate where
the district court “found that defendant possessed a loaded firearm, cocked it, assaulted [a woman] while holding the
firearm, and would have used it to hurt someone had it not been taken from him” which was “enough to establish a
connection between the firearm and reckless endangerment, Tenn. Code Ann. § 39–13–103”). Likewise, pointing a
firearm at “Man” on some unspecified occasion is, without more, unlikely to satisfy the requirements for reckless
No. 20-5134 United States v. Mukes Page 11
7 S.W.3d at 28. Since Mukes did not commit “another felony offense,” the enhancement under
§ 2K2.1(b)(6)(B) is inapplicable.
B.
Mukes also argues that the district court erred in applying the two-point sentencing
enhancement for reckless endangerment during flight. We agree. Since the facts available to the
district court are inadequate to support a finding by the preponderance of the evidence that
Mukes’s conduct satisfied the requirements for the § 3C1.2 enhancement, we vacate his sentence
and remand for resentencing without it.
The § 3C1.2 enhancement applies “[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.” The government must show that the defendant
(1) recklessly, (2) created a substantial risk of death or serious bodily injury, (3) to
another person, (4) in the course of fleeing from a law enforcement officer,
(5) and that this conduct 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.
United States v. Dial, 524 F.3d 783, 786–87 (6th Cir. 2008) (internal citations omitted). Our
case law requires the government to “link a specific aspect of the flight . . . with a specific risk.”
United States v. Brooks, 763 F. App’x 434, 441 (6th Cir. 2019). And the “government ha[s] the
burdens of production and persuasion” to prove facts that justify a sentencing enhancement.
Goodman, 519 F.3d at 323 (quoting United States v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir.
1995)). The government provided three theories to support the application of the enhancement
in this case: (1) fleeing with a firearm created a substantial risk of harm, (2) the firearm could
have discharged when Mukes dropped it, and (3) running after leaving a gun in a public place
risked others recovering it. The district court applied the enhancement without specifying which
theory of reckless endangerment it credited.
endangerment under Tennessee law. See United States v. Clark, 403 F. App’x 12, 15 (6th Cir. 2010) (expressing
skepticism that merely “show[ing] up with a gun and cock[ing] it” would be sufficient to constitute reckless
endangerment under Tennessee law). Cf. State v. Campbell, No. W2005-01418-CCA-R3-CD, 2006 WL 3147050
(Tenn. Crim. App. Nov. 3, 2006) (upholding conviction under § 39–13–103 where defendant aimed gun and shot
victim).
No. 20-5134 United States v. Mukes Page 12
We have said that “significant deference to the district court is required” when
considering the reckless endangerment enhancement because “[w]hile the question of what
constitutes endangerment is a mixed question of law and fact, it is highly fact-based.” United
States v. Hazelwood, 398 F.3d 792, 796 (6th Cir. 2005). However, for the reasons discussed
below, the government failed to demonstrate that the enhancement applied to Mukes, and the
district court therefore erred by applying it.
1.
The government’s first theory of reckless endangerment was that by fleeing with a
firearm, Mukes created a dangerous situation because the officers could have fired shots in
response to observing him fleeing with a weapon in hand. “Drawing a gun in front of officers,”
creating “a substantial risk that officers would open fire and perhaps injure other officers or
bystanders,” is a theory of reckless endangerment “supported by our caselaw.” Brooks, 763 F.
App’x at 440. Because officers cannot “know whether a firearm is loaded or unloaded, pulling
out any firearm in view of police officers while in flight creates a risk that officers might fire
their weapons.” Id.
The district court was presented with three pieces of evidence regarding Mukes’s flight
from the officers. First, the government submitted the affidavit of complaint, which included the
arresting officer’s sworn statement that Mukes had dropped the firearm before fleeing. Next, the
government introduced the unsworn record of arrest, which stated that Mukes ignored police
commands to drop the firearm, turned to flee, and threw the firearm during his flight. Finally,
Mukes testified at sentencing that he complied with the officer’s commands and dropped the
firearm before turning to flee the scene.
The district court did not resolve this factual dispute, stating that it was “not clear to the
Court whether the gun was dropped upon the police officer’s command or simply dropped or
thrown by the Defendant independently.” DE 48, Sent. Tr., Page ID 187. Yet the court still
concluded that, either way, the enhancement was applicable. According to the version of events
supported by the affidavit of complaint and Mukes’s testimony, Mukes no longer had a weapon
No. 20-5134 United States v. Mukes Page 13
when he fled from the officers.5 But the theory that flight while brandishing a firearm created “a
risk that officers could have reasonably opened fire,” CA6 R 23, Appellee Br., at 23, depended
on a factual finding that Mukes actually fled while holding a firearm.6 By determining that it
was “not clear” based on the government’s evidence when Mukes dropped the firearm, the
district court effectively decided that the government had not met its burden of proof on its first
theory of reckless endangerment. It was therefore error to apply the enhancement on the
government’s first theory.
2.
The government’s second theory at sentencing was that Mukes created a dangerous
situation by dropping the gun because it “could have fired [on impact] and someone could have
been hit.” DE 48, Sent. Tr., Page ID 176. We have recognized this theory of reckless
endangerment during flight under certain circumstances. In United States v. Howard, we said
that the “risk created by throwing a cocked and loaded gun is obvious,” because “when a person
throws a loaded gun on the ground while running, the weapon [could] easily [be] discharged.”
301 F. App’x 446, 448–49 (6th Cir. 2008) (alterations in original). However, we have declined
to apply the enhancement on this basis where “there is no indication in the record that [the
defendant’s] firearm was actually cocked when he tossed it.” United States v. May, 430 F.
App’x 520, 526 (6th Cir. 2011).
The existing record is insufficient to establish that Mukes’s dropping the firearm
presented a risk of the gun discharging. While the presentence report notes that the firearm was
loaded at the time with a round in the chamber, there is no evidence in the record, nor did the
5
The government incorrectly stated that “Mukes does not dispute that he threw a gun while fleeing from
police after they ordered him to stop and drop the weapon.” CA6 R. 23, Appellee Br., at 23. As Mukes pointed out,
he has “repeatedly disputed that he threw a gun while fleeing from police, asserting instead that he dropped the
weapon in compliance with officers’ commands prior to fleeing.” CA6 R. 25, Reply Br., at 3.
6
We are also skeptical of the government’s argument at the sentencing hearing that the enhancement can
apply to mere flight, without some other showing of reckless conduct. See DE 48, Sent. Tr., Page ID 175. We note
that our sister circuits have declined to apply the enhancement in such circumstances. See United States v. Reyes-
Oseguera, 106 F.3d 1481, 1484 (9th Cir. 1997) (“[I]nstinctive flight alone will not support the enhancement, nor
will the armed agent’s pursuit.”); United States v. Gould, 529 F.3d 274, 277 (5th Cir. 2008) (declining to apply the
enhancement when the only evidence in the record was that the defendant fled from armed officers instructing him
to stop).
No. 20-5134 United States v. Mukes Page 14
district court find, that the “firearm was actually cocked when [Mukes] tossed it.” May, 430 F.
App’x at 526.
Additionally, the government did not meet its burden of proof to show that others may
have been placed in danger. See Dial, 524 F.3d at 787 (requiring government to show that the
defendant recklessly created a substantial risk “to another person”). The government asserted at
sentencing that Mukes placed himself, bystanders, and police in danger. But the enhancement
does not apply for a risk of injury to the defendant. See U.S.S.G. § 3C1.2 cmt. n.4. As Mukes
pointed out at sentencing, there is no evidence in the existing record about the presence of
bystanders, potential or otherwise. Cf. Hazelwood, 398 F.3d at 796 (upholding enhancement
where district court found that there were “numerous other vehicles on the road” during the high-
speed chase and “at least one other driver . . . was endangered” when “forced to leave the
pavement as [the defendant] abruptly turned”). And there is no evidence in the record that the
officers were placed in danger when Mukes dropped the gun7—a gun that may not have been
capable of discharging in its condition. Indeed, the gun did not discharge when it hit the ground.
Further, the unresolved timing issue of when Mukes dropped the firearm is important to
the government’s second theory of reckless endangerment. If Mukes dropped the firearm in
response to police commands before fleeing, this enhancement likely would not be applicable, at
least in the absence of other countervailing evidence. To hold otherwise would present the
defendant with an untenable choice: drop the firearm upon police orders, resulting in additional
prison time under the government’s second theory, or refuse to drop the weapon, risk being shot,
and still receive additional prison time under the government’s first theory—brandishing a
firearm during flight. Section 3C1.2 does not require this result.
Without evidence in the record to support the government’s theory that dropping the gun
created a substantial risk of death or serious bodily injury to another person, the district court
erred in applying the enhancement.
7
By contrast, in Dial, the district court applied the enhancement after hearing testimony from the pursuing
officer that he had fled into his vehicle to avoid being hit by the defendant during a high-speed chase. 524 F.3d at
788. We concluded that the officer “[c]learly . . . was the specific other person at risk on these facts.” Id. The
record in this case is devoid of those kinds of details that would support the enhancement.
No. 20-5134 United States v. Mukes Page 15
3.
On appeal, the government asserts a third theory of reckless endangerment: running
away from a gun discarded in a public place created a substantial risk to another person.
“The idea that a discarded gun creates a substantial risk of serious bodily harm to another person
is well supported by caselaw.” Brooks, 763 F. App’x at 440 (declining to apply enhancement on
this basis where firearm was unloaded). In United States v. Stafford, we upheld application of
the enhancement where the defendant had discarded a loaded firearm behind a restaurant “where
employees regularly took the restaurant’s trash.” 721 F.3d 380, 403 (6th Cir. 2013).
At sentencing in that case, one of the pursuing officers described the presence of “other
pedestrians” in the area when the defendant had discarded the gun. Id. We concluded that there
was a “significant possibility that a bystander could have come across the loaded weapon and
been hurt, or used it to hurt someone else.” Id. Likewise, in May, we determined that it was
“reckless to discard a loaded firearm in a public-housing complex where it would likely be found
by someone.” 430 F. App’x at 526–27 (noting that the defendant “ha[d] not contradicted that
factual finding”); see also Howard, 301 F. App’x at 449 (“[T]he risk created by throwing a
loaded gun near other people is . . . ‘substantial.’”); United States v. Farrow, 754 F. App’x 417,
421 (6th Cir. 2018) (enhancement appropriate where officers “need[ed] to tackle and disarm [a
different] suspect who attempted to pick up the [discarded] gun”). We have also upheld
application of the enhancement where the defendant discarded a loaded firearm in a “residential
neighborhood” and police had to conduct a search to locate it. See United States v. Carter,
817 F. App’x 132, 134 (6th Cir. 2020); United States v. Tasaki, 510 F. App’x 441, 445 (6th Cir.
2013).
While this argument presents a well-recognized theory of reckless endangerment, the
government did not press it at the sentencing hearing. We have declined to apply this
enhancement when “the record does not indicate that the district court considered [a particular
theory] as a basis for applying [it].” May, 430 F. App’x at 526.
In any event, the existing record is insufficient to support this theory of reckless
endangerment. The only information provided about the nature of the place in which the gun
was discarded was a cursory mention that the area was a “residential and commercial area,” in
No. 20-5134 United States v. Mukes Page 16
response to Mukes’s objections to the presentence report. DE 41, 2d Add. to PSR, Page ID 97.
Unlike our decisions upholding the enhancement on this theory, there is no evidence in the
record about any potential risk that a bystander might have come across the weapon during the
brief encounter between Mukes and the police, particularly in light of the late hour of arrest,
around three a.m. And unlike Carter and Tasaki, no search was needed to recover the firearm
because Mukes dropped it in plain view of the police officers. In short, the existing record is
inadequate to support the government’s theory that running from the discarded firearm created a
substantial risk of harm.
C.
The government failed to demonstrate that the § 2K2.1(b)(6)(B) and the § 3C1.2
enhancements were applicable on this record. The district court, therefore, erred in applying
them. Because “[n]o special circumstances justified, or even explained, the government’s failure
to sustain [its] burdens” at sentencing, we remand the case for resentencing on the existing
record. Goodman, 519 F.3d at 323 (quoting Leonzo, 50 F.3d at 1088); see also United States v.
Baker, 559 F.3d 443, 455 n.10 (6th Cir. 2009) (holding that an intervening Supreme Court
decision qualified as a “special circumstance,” but the government’s “fail[ure] to offer factual
evidence” did not). We see no reason why the government “should get a second bite at the
apple” on remand, Goodman, 519 F.3d at 323, since the “government was entitled to only one
opportunity to present evidence on [these] issue[s].” United States v. Gill, 348 F.3d 147, 156
(6th Cir. 2003). And because the existing record does not support either enhancement, the
district court is not to apply them on remand.
D.
Finally, Mukes argues that the district court erred by denying him the two-point reduction
for acceptance of responsibility. The sentencing guidelines provide that “[i]f the defendant
clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by
2 levels.” U.S.S.G. § 3E1.1(a). “Entry of a plea of guilty . . . combined with truthfully admitting
the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying
any additional relevant conduct . . . will constitute significant evidence of acceptance of
No. 20-5134 United States v. Mukes Page 17
responsibility.” Id. cmt. n.3. In determining whether to grant the reduction, the district court
may consider whether the defendant “falsely denies, or frivolously contests, relevant conduct that
the court determines to be true.” Id. cmt. n.1(A). But a defendant’s unsuccessful challenge to
“relevant conduct . . . does not necessarily establish that it was either a false denial or frivolous.”
Id. In other words, crediting the government’s version of events over that of the defendant does
not, on its own, mean that the defendant may be denied the reduction. Rather, the district court
must specifically find that the defendant “falsely denie[d] or frivolously contest[ed]” the facts.
A mere determination that the government has met its burden of proof of the facts is not enough.
Mukes pled guilty and filed a statement accepting responsibility for the offense charged
in the indictment: illegally possessing a firearm. Because the district court erred in applying the
two enhancements, it should consider whether Mukes may receive the reduction for acceptance
of responsibility at resentencing. In view of our rulings with respect to the enhancements, there
remains a serious question whether any “relevant conduct” that Mukes could “falsely deny” or
“frivolously contest” still exists. That question, however, is properly resolved by the district
court.
III.
For the reasons stated, we vacate Mukes’s sentence and remand to the district court for
resentencing on the existing record, with instructions not to apply either the § 2K2.1(b)(6)(B) or
the § 3C1.2 enhancement. On remand, the district court should consider whether Mukes may
receive the two-point reduction for acceptance of responsibility, § 3E1.1.