Case Information
*1 BEFORE: CLAY аnd COOK, Circuit Judges; and OLIVER, District Judge. [*]
CLAY, Circuit Judge. After pleading guilty to cultivation of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(vii), Defendant Shane Roush was sentenced to a term of 281 months’ imprisonment to be followed by five years of supervised release. Defendant appeals his sеntence, claiming that the district court committed procedural error in imposing it. For the following reasons, we AFFIRM Defendant’s sentence.
BACKGROUND
Defendant Shane Roush had an ongoing dispute with his neighbor Jeff Levering over the easement rights between their properties in rural Morrow County, Ohio. On October 21, 2010, Morrow County Sheriff’s Sergeant Robert Chalfant and Detective Brandon Moore responded to a call from Levering complaining that Defendant’s van was blocking Levering’s access to his fields. Upon arrival, Moore spоke with Defendant, who agreed to move his van; Chalfant then departed.
Moore stayed behind because Levering informed Moore that Defendant was growing marijuana on Defendant’s property—something Defendant had been doing since 2005. To investigate Levering’s claim, Moore climbed on top of one of Levering’s grain bins to get a better view of Defendant’s fields. At that time, Moore observed what he believed to be marijuana growing in Defendant’s fields. Moore then returned to his vehicle аnd drove along the fence line to get a better view of the marijuana. Defendant’s wife observed Moore on the grain bin and driving the fence line and told her husband. Defendant directed his wife to retrieve his Sig Sauer semiautomatic assault rifle and bаllistic vest.
Defendant exited his house, put on his ballistic vest, and walked toward Moore while carrying the assault rifle. Defendant then opened fire on Moore, hitting him four times. Defendant then turned his fire on the Levering family: Levering, his wife, and his son. The Leverings took сover behind their truck as Moore returned fire, wounding. A later investigation yielded over 1,750 marijuana plants and over 100 firearms from Defendant’s property.
The State of Ohio indicted Defendant and charged him with attempted aggravated murder and multiplе felonious assault counts, as well as marijuana cultivation and trafficking counts. In December 2010, a federal grand jury in the Southern District of Ohio indicted Defendant for cultivation of more than 1000 marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(vii), and discharging a firearm during а drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)–(iii). The federal indictment also included a forfeiture count. Due to the overlapping drug charges, the state dismissed its cultivation and trafficking charges.
On August 22, 2011, Defendant pleaded guilty to the remaining state charges for which he received a total of 25 years’ imprisonment. Thereafter, Defendant was brought into federal court pursuant to a writ of habeas corpus ad prosequendum. Defendant pleaded guilty to the cultivation charge (and the forfeiture), in exchange for a dismissal of the firearms charge and a recommendation that the state and federal sentences run concurrently.
The pre-sentence report (“PSR”) calculated Defendant’s Guidelines range with a base offensе level of 26 for the 1,750 marijuana plants. See U.S.S.G. § 2D1.1(c)(7). Two points were added for possession of a dangerous weapon. See id. § 2D1.1(b)(1). Six points were added due to Defendant’s creation of a substantial risk of serious bodily injury to a law enforcement officеr (i.e., the official- victim enhancement). See id. § 3A1.2(c)(1). The four-level body-armor enhancement was applied. See id. § 3B1.5(1)–(2). Finally, the PSR added two points for reckless endangerment during flight. See id. § 3C1.2. After subtracting three points for acceptance of responsibility, see id . § 3E1.1(a)–(b), thе PSR calculated Defendant’s offense level as 37. Coupled with his criminal history category of I, this resulted in a Guidelines range of 210–262 months’ imprisonment. See id. ch. 5, pt. A. The probation officer, who prepared the PSR, also recommended an upward departure, under U.S.S.G. § 5K2.2, to 300 months. The district court followed the PSR’s recommended departure, and following a 19-month reduction for time served on the state charge, Defendant was sentenced to 281 months in prison to be followed by five years of supervised release.
STANDARD OF REVIEW
We review sentences “for reasonableness under an abuse of discretion standard.” United States v. Brown , 579 F.3d 672, 677 (6th Cir. 2009). In our review, “[t]he district court’s interpretation of the advisory Guidelines is reviewed de novo , and its findings of fact are reviewed for clear error.” Id . The district сourt commits procedural error by “‘failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly errоneous facts, or failing to adequately explain the chosen sentence.’” Id. (quoting Gall v. United States , 552 U.S. 38, 51 (2007)).
DISCUSSION
Defendant raises two arguments on appeal. First, he argues that the district court erred in applying the two-point reckless endangerment enhancement undеr U.S.S.G. § 3C1.2 to his sentence. Second, he contends that the district court committed error by applying both the official victim enhancement under U.S.S.G. § 3A1.2 and departing upward under U.S.S.G. § 5K2.2. A. Reckless Endangerment under U.S.S.G. § 3C1.2
Section 3C1.2 of the Guidelines provides a two-point enhancement to a dеfendant’s offense
level “[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 application of this
provision is broader, however, than the text might suggest. The Application Notes to U.S.S.G.
§ 3C1.2 note this breadth and also specify that the enhancement applies to conduct that “includes
preparation for flight” as well as “conduct [that] occurs in the coursе of resisting arrest.” U.S.S.G.
§ 3C1.2 app. n. 3. “Although what constitutes reckless endangerment during flight is a mixed
question of law and fact, it is highly fact-based and significant deference to the district court is
required.”
United States v. Tasaki
, No. 12-5411,
Before turning to the question of whether Defendant’s conduct fits into the § 3C1.2
enhancement, we must first determine which aspect of Defendant’s conduct is being punished by the
application of this enhancement. This threshold determination is necessary because our caselaw
prohibits double counting, which “occurs when precisely the same aspect of the defendant’s conduct
factors into his sentence in two separate ways.”
United States v. Battaglia
,
As to the applicability оf § 3C1.2 to Defendant’s shooting at the Leverings, we first agree with the district court (and Defendant) that this conduct was not done “during flight” because fleeing, as commonly understood, requires that a person “run away . . . from trouble or danger,” The American Heritage Diсtionary of the English Language 672 (4th ed. 2000), and the PSR indicated that Defendant walked towards the Leverings when he was shooting. But, as noted above, the enhancement is broader than just reckless endangerment during flight; it includes reckless endangerment “in the course of resisting аrrest.” U.S.S.G. § 3C1.2 app. n. 3. We conclude that Defendant’s shooting of the Leverings was done in the course of resisting arrest.
Defendant knew that by growing marijuana he was engaged in the commission of a crime
under both state and federal law.
See
21 U.S.C. § 841(a)(1), (b)(1)(B)(vii); Ohio Rev. Code
§ 2925.04(A);
see also
Ohio Rev. Code § 2925.11(A). He also knew that because Officer Moore
had viewed the marijuana growing in his fields, Moore had probable cause to arrest him on the spot.
See Virginia v. Moore
,
The Supreme Court has held that “it is an incorrect аpplication of the Guidelines for a district court to depart from the applicable sentencing range based on a factor that the Commission has already fully considered in establishing the guideline range.” Williams v. United States , 503 U.S. 193, 200 (1992). Defendant contends that the bаsis for the district court’s departure under U.S.S.G. § 5K2.2 was the same as the basis for applying the official victim enhancement under U.S.S.G. § 3A1.2. This issue requires us to compare § 3A1.2 and § 5K2.2 to determine if § 5K2.2’s conduct was already “fully considered” by § 3A1.2.
The official-victim enhancеment under § 3A1.2 applies “[i]f, in a manner creating a substantial risk of serious bodily injury, the defendant . . . knowing or having reasonable cause to believe that a person was a law enforcement officer, assault[s] such officer during the course of thе offense.” U.S.S.G. § 3A1.2(c)(1). By contrast, § 5K2.2 provides:
If significant physical injury resulted, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the extent of the injury, the degree to which it may prove permanent, and the extent to which the injury was intended or knowingly risked. When the victim suffers a major, permanent disability and when such injury was intentionally inflicted, a substantial departure may be appropriate. . . .
In this case, the district court had before it evidence about the permanent groin and leg injuries inflicted on Moore by Defendant. Both of these injuries will require lifelong treatment. The district [1] court departed upward because of the “significant” and “severe” nature of the injuries sustained by Moore.
The comparison of the two Guidelines provisions demonstrates that they punish different
aspects of Defendant’s conduct. By its terms, § 3A1.2 can apply regardless of whether an officer
sustains serious injuries. In this case, the district court departed upwards under § 5K2.2 based on
the severity of the actual injuries suffered by Moore. Therefore, because § 3A1.2 is focused on the
risk
of bodily injury while § 5K2.2 is focused on the
extent
of the
actual
injury, there was no
impermissible double counting in the district court’s § 5K2.2 departure in addition to its application
of the § 3A1.2 enhancement.
See United States v. Levy
,
CONCLUSION
For the foregoing reasons, we AFFIRM Defendant’s sentence.
Notes
[*] The Honorable Solomon Oliver, Jr., Chief Judge, United States District Court for the Northern District of Ohio, sitting by designation.
[1] After countless surgeries, Moore’s leg injuries still cause him to walk with a limp, likely for the rest of his life. Additionally, treatment of Moore’s groin injury will require lifelong hormone therapy.