527 F. App'x 349
6th Cir.2013Background
- Defendant Shane Roush cultivated marijuana on his property since 2005 and faced overlapping state charges for related violence.
- In Oct 2010, Officer Moore observed marijuana on the property; Moore’s view prompted an armed confrontation with Roush, who then fired on Moore and later targeted the Leverings.
- During the incident, Moore and Levering were wounded; later investigation found over 1,750 marijuana plants and over 100 firearms on Roush’s property.
- Federal indictment charged cultivation of more than 1,000 plants and discharging a firearm during a drug-trafficking crime; state charges were dismissed due to overlap.
- Roush pleaded guilty in state court to remaining charges (25 years) and then pled guilty in federal court to cultivation and forfeiture, with a recommendation that state and federal sentences run concurrently.
- PSR calculated a base offense level of 26 for 1,750 plants, plus enhancements for weapon possession, official-victim, body armor, reckless endangerment, and a two-point acceptance reduction; total offense level 37, criminal history I, resulting in 210–262 months, with an advised upward departure to 300 months; district court imposed 281 months plus five years of supervised release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 3C1.2 reckless endangerment enhancement applies | Roush contends the court erred in applying § 3C1.2 to the Levering shootings. | Roush argues the conduct does not meet the standard for reckless endangerment during flight. | Yes; § 3C1.2 applies to shooting at the Leverings as part of resisting arrest, not during flight. |
| Whether the upward departure under § 5K2.2 was permissible alongside § 3A1.2 | Roush argues the § 5K2.2 departure repeats the same basis as § 3A1.2, constituting impermissible double counting. | Roush asserts § 5K2.2 concerns the extent of actual injury, distinct from the risk-based § 3A1.2. | Permissible; § 3A1.2 and § 5K2.2 address different aspects (risk vs. extent of injury); no impermissible double counting. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (2007) (guidelines are non-mandatory; proper consideration of 3553(a) factors required)
- United States v. Tasaki, 2013 WL 69356 (6th Cir. 2013) (fact-intensive review of § 3C1.2 determinations with deference to district court)
- Hazelwood v. United States, 398 F.3d 792 (6th Cir. 2005) (reckless endangerment during flight analyzed on a fact-intensive basis)
- United States v. Battaglia, 624 F.3d 348 (6th Cir. 2010) (avoidance of double counting in combining § 3C1.2 and other enhancements)
- United States v. Hayes, 135 F.3d 435 (6th Cir. 1998) (distinguishes multiple enhancements in a continuous course of conduct)
- United States v. Levy, 250 F.3d 1015 (6th Cir. 2001) (upward departure can be based on extent of injury separate from risk-based enhancements)
- United States v. Swoape, 31 F.3d 482 (7th Cir. 1994) (supports application of § 3C1.2 where conduct endangered others after offense)
- Virginia v. Moore, 553 U.S. 164 (2008) (probable cause justifies arrest in certain circumstances)