Case Information
*1 Before WIDENER and WILLIAMS, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed in part and vacated and remanded in part with instructions by published opinion. Judge Widener wrote the opinion, in which Judge Williams and Senior Judge Hamilton concurred.
COUNSEL ARGUED: George Alan DuBois, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Winnie Jordan Reaves, Assis- *2 tant United States Attorney, Raleigh, North Carolina, fоr Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
OPINION
WIDENER, Circuit Judge:
Defendant Maxine Chong appeals her convictions and sentence resulting from her guilty plea to conspiracy with intent to distribute at least 50 grams of cocaine base and possession with intent to distrib- ute at least 50 grams of cocaine base. Miss Chong asserts that the dis- trict court erred as a matter of law in еnhancing her sentence under USSG § 3C1.2 for reckless endangerment during flight based on the relevant conduct standard in USSG § 1B1.3(a)(1)(B) that her co- defendant’s reckless conduct was reasonably foreseeable. Addition- ally, Miss Chong challenges the constitutionality of the federal drug statutes, 21 U.S.C. §§ 841 and 846, in light of Apprendi v. New Jer- sey , 530 U.S. 466 (2000).
I.
Maxine Chong was a passenger in a vehicle driven by her co- defendant, Chesnеy Fairclough, when local police attempted to effect a traffic stop on the vehicle. When officers activated the lights of the police vehicle, Fаirclough sped away, turning down a one-way street and eventually stopping after the vehicle collided with a median. Fair- clough then exited the vehicle and fled on foot, disсarding 689 grams of cocaine base as he ran. After Fairclough was apprehended, the police returned to the vehicle and ordered Miss Chong and another passеnger, Vincent Lewis, out of the car.
As Miss Chong exited the car, she placed an object in her pants and also attempted to flee on foot, but was detained. Miss Chong was arrеsted at the scene and a search revealed 51.8 grams of cocaine base and $8530 in her possession. An additional 25.9 grams of cocaine base were recovеred from a door panel of the vehicle.
*3 Miss Chong pleaded guilty to a two count indictment charging her with conspiracy to possess with intent to distribute more than 50 grams of coсaine base in violation of 21 U.S.C. § 846 and possession with intent to distribute more than 50 grams of cocaine base in viola- tion of 21 U.S.C. § 841(a). The presentence report (PSR) credited Miss Chong with rеsponsibility for 1295 grams of cocaine base including: 51.8 grams found in her possession, 689 grams discarded by Fairclough, 25.9 grams found in the vehicle, 28.3 grams sold to a confidential informant in an earlier trаnsaction, and 500 grams repre- senting the amount of cash seized from the co-conspirators deter- mined to be the proceeds of drug transactions. Miss Chong’s offense level was enhanced by two levels under USSG § 3C1.2 for reckless endangerment during flight based on co-defendant Fairclough’s attempt to flee police by driving the wrong way down a one-way streеt and wrecking the car upon a median. Finally, Miss Chong bene- fitted from a three level reduction in her offense level from an accep- tance of responsibility adjustment.
Miss Chоng raised a number of objections to the PSR, including an objection to the enhancement for reckless endangerment. The dis- trict court, however, adopted the factual findings and guideline appli- cation of the PSR and, based on a total offense level of 35, sentenced Miss Chong to 235 months on each count to be served concurrently.
II.
We exercise jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Although we give due deference to the dis- trict court’s application of the Sentencing Guidelines to the facts, when the questiоn involves the legal interpretation of a guideline pro- vision, our review is de novo. United States v. Daughtrey , 874 F.2d 213, 217 (4th Cir. 1989).
III.
A defendant’s sentence can be increased by two levels under USSG § 3C1.2 "if 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 district court increased Miss Chong’s offense level by two levels under § 3C1.2 because the court *4 accepted the findings of the PSR that it was reasonably foreseeable to Miss Chong that her co-defendant might attempt to elude arrest. In applying the enhancement for reckless endangerment during flight, the district court relied on the language in § 1B1.3(a)(1)(B), which defines relevant conduct in the casе of a jointly undertaken criminal activity as "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity that ocсurred 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 thаt offense."
According to Application Note Five of § 3C1.2, which was not considered by the district court, a fleeing defendant is "accountable for his own conduct and for cоnduct that he aided or abetted, coun- seled, commanded, induced, procured, or willfully caused." We must consider this commentary, which interprets or explains a guideline, as authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline. See Stinson v. United States , 508 U.S. 36, 38 (1993).
According to the guidelines, the adjustments in Chаpter Three, such as the reckless endangerment enhancement of § 3C1.2, are to be determined based upon the relevant conduct provisions of § 1B1.3 "unless otherwise specified." See USSG § 1B1.3(a). By stating that a defendant is responsible for the conduct of others if he aided or abet- ted, counseled, commanded, induced, procured, or willfully caused that conduct, Application Note Five of § 3C1.2 limits the defendant’s responsibility for the actions of another. This limitation thus delin- eates the instances in which the relevant conduct provisions of § 1B1.3 apply. See United States v. Cook , 181 F.3d 1232, 1235-36 (11th Cir. 1999).
We thus join the Eleventh, Tenth, and Ninth Circuits in reasoning
that "some form of direct or active participation which is consistent
with Application Note Five is necessary in order for § 3C1.2 to
apply."
United States v. Cook
,
The record in this case is incomplete as to whether Miss Chong’s own сonduct met the applicable standard set forth in Application Note Five. Although the district court adopted the factual findings of the presentence report, relеvant details of the flight are not in the record and we are unable to ascertain whether Miss Chong aided or abetted, counseled, commanded, induced, procured, or willfully сaused Fair- clough’s reckless flight and thus would be subject to the two level enhancement. Accordingly, we vacate Miss Chong’s sentence and remand to the district court for resentеncing based on a determination of whether she aided or abetted, counseled, commanded, induced, procured, or willfully caused her co-defendant to engage in сonduct that satisfies the reckless standard of § 3C1.2.
IV.
Miss Chong next challenges her convictions on the grounds that the
federal drug statutes are unconstitutional in light of the
Apprendi
rule
that any factor оther than a prior conviction which increases defen-
dant’s sentence beyond the statutory maximum must be submitted to
the jury and proved beyond a reasonable doubt. See
United States v.
Apprendi
, 530 U.S. 466, 490 (2000). A pаnel of this court recently
"join[ed] the Fifth, Sixth, Seventh, and Tenth Circuits in holding that
§ 841 is not facially unconstitutional."
United States v. McAllister
,
272 F.3d 228, 232 (4th Cir. 2001). It is well settled that "a panel of
this court cannot overrule, explicitly or implicitly, the precedent set
by a prior panel of this court. Only the Supreme Court or this court
sitting en banc can do that."
Mentavlos v. Anderson
, 249 F.3d 301,
312 n.4 (4th Cir. 2001) (citing
Bell v. Jarvis
,
*6 V.
For the foregoing reasons, we affirm Miss Chong’s convictions; however, we conclude that the district court erred in applying the § 3C1.2 enhancement without considering Application Note Five. We therefore vacate Miss Chong’s sentence and remand for resentencing in which the district court will consider that same Application Note Five should it apply § 3C1.2.
AFFIRMED IN PART, VACATED AND REMANDED IN PART WITH INSTRUCTIONS