United States v. Porter, 643 F. App'x 758

Porter pled guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and received a within-Guidelines 96-month sentence.
During a police investigation of “shots fired,” Porter, driving a white Mustang matching the description, refused to stop, led an officer on a short pursuit, committed traffic violations, and crashed into a residential garage.
After the crash Porter fled on foot, dropped a fully loaded Glock .40 with a chambered round, attempted to jump a fence, ignored officer commands, and was subsequently subdued and arrested.
The district court applied a two-level U.S.S.G. § 3C1.2 enhancement for reckless endangerment during flight and treated a prior Colorado second-degree assault conviction as a "crime of violence" under U.S.S.G. § 4B1.2(a) to set his base offense level under U.S.S.G. § 2K2.1(a)(2).
Porter challenged the § 3C1.2 enhancement and later argued (post-Johnson) that treating his prior Colorado assault conviction under the Sentencing Guidelines’ residual clause as a crime of violence was plain error.

Issue	Plaintiff's Argument (Porter)	Defendant's Argument (Government)	Held
Whether § 3C1.2 enhancement for reckless endangerment during flight is supported by the undisputed facts	Facts are insufficient as a matter of law; lack of specific speeds, bystanders, or direct evidence of endangerment	The chase, traffic violations, crash into a garage, dropping a loaded gun while fleeing and ignoring commands demonstrate reckless endangerment	Affirmed: enhancement valid under either de novo or clear-error review
Whether prior Colo. second-degree assault conviction qualifies as a "crime of violence" under § 4B1.2(a) for § 2K2.1 base offense level	No timely objection at sentencing, but post-Johnson the residual clause is void for vagueness and thus plain error	Government agrees residual-clause classification is affected by Johnson	Remanded: district court plainly erred under Johnson/Madrid; vacate sentence and resentence without treating the conviction as a crime of violence

United States v. Conley, 131 F.3d 1387 (10th Cir. 1997) (reasonable-person standard applies to § 3C1.2 reckless-endangerment analysis)
Johnson v. United States, 135 S. Ct. 2551 (2015) (residual clause in ACCA is unconstitutionally vague)
United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015) (applies Johnson to § 4B1.2(a) residual clause)
United States v. Tasaki, [citation="510 F. App'x 441"] (6th Cir. 2013) (affirming § 3C1.2 where defendant fled in vehicle, retrieved/ discarded firearm while fleeing)
United States v. Gaylord, [citation="61 F. App'x 623"] (10th Cir. 2003) (affirming § 3C1.2 after dangerous vehicle flight ended in loss of control)
United States v. Jefferson, [citation="58 F. App'x 8"] (4th Cir. 2003) (affirming § 3C1.2 where defendant dropped a loaded firearm while fleeing)