United States v. Kevin Dennings, 922 F.3d 232

In March 2017 Dennings approached a man with a garment over his face, produced a firearm that discharged twice (no injuries), and then fled upon hearing police sirens.
A pursuing officer saw Dennings running with a garment over his face and observed his right hand ‘‘not empty’’ and moving differently from his left; Dennings ignored commands to stop and later resisted on the ground while appearing reluctant to relinquish his right arm.
Police recovered a loaded firearm from Dennings’ jacket pocket after detaining him.
Dennings was indicted for being a felon in possession of a firearm (18 U.S.C. §§ 922(g)(1), 924(a)(2)); he pleaded not guilty and contested only a two-level § 3C1.2 enhancement for recklessly creating a substantial risk of death or serious bodily injury while fleeing.
The district court applied the § 3C1.2 enhancement, producing an offense level yielding a Guidelines range capped by the statutory maximum; Dennings was sentenced to 110 months and appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 3C1.2's two-level enhancement applies for ‘‘recklessly creating a substantial risk of death or serious bodily injury’’ during flight	Dennings: Mere instinctive flight while a firearm is secured in a jacket pocket is safer than other flight conduct and does not create the requisite substantial risk; applying the enhancement would force armed individuals to surrender	Government: Dennings’ flight included ‘‘plus’’ factors (discharged gun earlier, hand movements toward pocket, ignoring commands, resisting on ground) that created a substantial risk and satisfied the reckless standard	The Fourth Circuit affirmed: § 3C1.2 applies because Dennings’ armed flight plus his hand movements, refusal to obey commands, and resistance created a substantial, reckless risk of serious harm

Gall v. United States, 552 U.S. 38 (2007) (standard of review for sentencing)
United States v. Carter, 601 F.3d 252 (4th Cir. 2010) (affirming § 3C1.2 where defendant fled into another’s home, creating substantial risk)
United States v. Bates, 561 F.3d 754 (8th Cir. 2009) (armed foot flight with reaching toward waistband supports § 3C1.2)
United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (wrestling with officer while armed supports § 3C1.2)
United States v. Easter, 553 F.3d 519 (7th Cir. 2009) (reaching for a loaded gun while running supports § 3C1.2)
United States v. Lee, 199 F.3d 16 (1st Cir. 1999) (efforts to seize a gun can create substantial risk)
United States v. John, 935 F.2d 644 (4th Cir. 1991) (instinctive flight alone does not warrant § 3C1.2)