U.S. v. Gould

• Decision Date: 21 May 2008
• Docket Number: No. 06-11058.,06-11058.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos Rashad GOULD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

529 F.3d 274

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Rashad GOULD, Defendant-Appellant.

No. 06-11058.

United States Court of Appeals, Fifth Circuit.

May 21, 2008.

Charles William Brown (argued), Dallas, TX, for U.S.

David Lawrence Horan (argued), Andrew O. Wirmani, Jones Day, Dallas, TX, for Gould.

Appeal from the United States District Court for the Northern District of Texas.

Before DAVIS and SOUTHWICK, Circuit Judges, and CLARK, District Judge.^*

SOUTHWICK, Circuit Judge:

Carlos Rashad Gould pled guilty to conspiracy to possess with intent to distribute 50 grams or more of crack cocaine and to possession of a firearm in furtherance of the drug offense. On appeal, he challenges his sentence. We agree with his argument, and therefore vacate and remand for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 9, 2005, members of the Wichita Falls Police Department Organized Crime Unit and SWAT team executed a search warrant for drugs at a home in Wichita Falls, Texas. When the agents entered the front door, Gould—who was present in the home but not a resident—ran through the back door and fled on foot. An officer outside the home saw Gould running, pointed his weapon at Gould and yelled for Gould to stop. Gould ran past that officer. Others on the team joined in the chase and soon captured Gould. The officers searched Gould and found cocaine base and marihuana. In addition, bags of cocaine, cocaine base, marihuana, firearms, and ammunition were found inside the house. Gould's Social Security card, three firearms, ammunition and cocaine base were found in a car parked in the driveway.

Gould subsequently pled guilty to two counts of a seven-count indictment—one count of conspiracy to possess with intent to distribute a controlled substance and one count of possession of a firearm in furtherance of drug trafficking. See 18 U.S.C. § 924(c)(1)(A) & 21 U.S.C. § 846. Based on the amount of drugs attributable to Gould, his base offense level was 32. The Presentence Report recommended a two-level enhancement under the Sentencing Guidelines for "Reckless Endangerment During Flight." U.S.S.G. § 3C1.2. The report justified the enhancement based upon Gould's flight from officers who had drawn their weapons and were instructing him to stop, thereby creating a substantial risk of death or serious bodily injury to others. A two-level reduction was also recommended for acceptance of responsibility. U.S.S.G. § 3E1.1.

Based on these factors, and a criminal history category of IV, Gould's advisory sentencing range was 168 to 210 months on the conspiracy count. The possession of a firearm count carried a mandatory consecutive minimum sentence of 60 months. Over Gould's objection, the court adopted the Presentence Report's recommendations and sentenced Gould to 270 months (210 months on the conspiracy count and 60 months on the firearm count).

On appeal, Gould raises three challenges to his sentence. First, he argues that there is insufficient evidence to justify the "Reckless Endangerment" enhancement. His second and third arguments are that his sentence is unreasonable and that the sentencing judge failed adequately to justify his sentence. Because we vacate the sentence based on an insufficient factual basis to justify the "Reckless Endangerment" enhancement, we do not address Gould's remaining claims related to the reasonableness of his sentence. After a new sentence is imposed, it will need to be justified.

II. DISCUSSION

When evaluating a challenge to a sentence enhancement, we review the district court's factual findings for clear error and its application and interpretation of the Guidelines de novo. United States v. Medina-Argueta, 454 F.3d 479, 481 (5th Cir.2006). The determination that a defendant's conduct constituted reckless endangerment under U.S.S.G. § 3C1.2 is reviewed for clear error, and will be upheld if the finding is plausible in light of the record as a whole. United States v. Lugman, 130 F.3d 113, 115-16 (5th Cir.1997).

The "Reckless Endangerment" enhancement is justified if a "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 ...." U.S.S.G. § 3C1.2. Gould argues that merely fleeing on foot in the presence of police officers is not sufficient to warrant the enhancement.

The Government responds that the facts surrounding Gould's arrest support the adjustment because Gould's flight created a more dangerous situation than usually occurs when a suspect evades arrest. For example, both the Wichita Police Department and a SWAT team were involved in execution of the search warrant at a known crack-house—making the situation more chaotic and potentially dangerous when Gould fled. In addition, Gould's continued flight after officers pulled their weapons and ordered him to stop caused the officers to pursue him with their weapons drawn, increasing the risk of death or serious injury to the officers or others in the area.

The "Reckless Endangerment" enhancement is applicable if the defendant: (1) recklessly; (2) created a substantial risk of death or serious bodily injury; (3) to another person; (4) in the course of fleeing from a law enforcement officer; and (5) that the flight was related to the offense the defendant is convicted of violating. United States v. Southerland, 405 F.3d 263, 268 (5th Cir.2005). It is undisputed that Gould was fleeing from the officers serving the warrant and that Gould was ultimately convicted of crimes related to the flight. The question presented here is whether the Government presented sufficient evidence that Gould recklessly created a substantial risk of harm to others. A person acts in a reckless manner when he is "aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation." U.S.S.G. § 2A1.4, Application Note 1; U.S.S.G. § 3C1.2, Application Note 2.

The facts relied on by the district...