U.S. v. Hazelwood

• Decision Date: 23 February 2005
• Docket Number: No. 03-6232.,03-6232.
• Citation: 398 F.3d 792
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Ronald HAZELWOOD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

398 F.3d 792

UNITED STATES of America, Plaintiff-Appellee, v. James Ronald HAZELWOOD, Defendant-Appellant.

No. 03-6232.

United States Court of Appeals, Sixth Circuit.

Argued: December 7, 2004.

Decided and Filed: February 23, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Andrew M. Stephens, Andrew M. Stephens & Associates, Lexington, Kentucky, for Appellant. James E. Arehart, Assistant United States Attorney, Lexington, Kentucky, for Appellee. ON BRIEF: Andrew M. Stephens, Andrew M. Stephens & Associates, Lexington, Kentucky, for Appellant. James E. Arehart, Charles P. Wisdom, Jr., Assistant United States Attorney, Lexington, Kentucky, for Appellee.

Before: GUY and COLE, Circuit Judges; TARNOW, District Judge.^*

OPINION

COLE, Circuit Judge.

Defendant-Appellant James Ronald Hazelwood pleaded guilty to charges of federal bank robbery and the use of a firearm to commit a violent felony. He now appeals three different sentencing enhancements applied by the district court. We find no error in the application of enhancements for reckless endangerment during flight and for Hazelwood's criminal history. However, because we find that the application of two separate penalties for making a "threat of death" and for the use of a firearm during a felony would constitute prohibited "double counting" under the Guidelines, and because we are not convinced that this error was harmless, we VACATE Hazelwood's sentence and REMAND for resentencing.

I.

The facts of this case, with only some minor sentencing-related exceptions, are undisputed. On December 16, 2002, Ronnie Hazelwood robbed a bank in Perryville, Kentucky. Pointing a semiautomatic pistol at the tellers, he stated, "Do what I say or I will kill you!" After taking $41,820 from the bank, he fled in a getaway car. The car was described over police radio, and an off-duty deputy (who happened to have his police radio on at the time) spotted the car and followed it. The officer was later joined by other police units. He testified that Hazelwood was traveling between 80 and 90 miles per hour. Hazelwood tossed the money out of the car, drove several miles down the road, abandoned the car, and escaped on foot. He was eventually apprehended later that afternoon at his girlfriend's house.

Hazelwood subsequently pleaded guilty to charges of federal bank robbery and use of a firearm to commit a violent felony. The plea agreement included sentencing recommendations, but did not include any explicit agreement on the length of the sentence itself. The agreement specifically stated that the two parties did not agree as to whether a "reckless endangerment during flight" enhancement was warranted. Although the agreement did include a waiver of Hazelwood's right to appeal his conviction, it did not include a waiver of his right to appeal his sentence.

The district judge sentenced Hazelwood in accord with the joint recommendation, but sua sponte applied the following enhancements not recommended in the agreement: (1) a "reckless endangerment during flight" enhancement; (2) criminal history enhancements based on what the district court found were four separate, unrelated convictions; and (3) an enhancement for the use of a threat of death during a felony. Hazelwood timely appeals each of these enhancements.

II.

When reviewing sentencing decisions, we review the district court's factual findings for clear error, while reviewing the district court's conclusions of law de novo. See, e.g., United States v. DeJohn, 368 F.3d 533, 544 (6th Cir.2004).

A. Reckless Endangerment Enhancement

Hazelwood first argues that he should not have received a two-point enhancement for "reckless endangerment during flight" under U.S.S.G. § 3C1.2 because the district court did not determine specifically who was endangered, under what circumstances they were endangered, or whether or not any risk created during the flight was "substantial." An officer on the videotape of the chase notes that Hazelwood is traveling in excess of 90 miles an hour, but Hazelwood argues there is no independent way to verify Hazelwood's speed during the entire chase. He also argues that there was no finding by the judge that the neighborhood was residential or that any other drivers were endangered by Hazelwood's conduct.

The district judge based his findings on a videotape of the police chasing Hazelwood's vehicle, noting that:

[T]here is no testimony or no proof other than what the officer said that the speed was in excess of 90 miles an hour on a wet road. I'm not sure if it was raining. I know the road was wet. It appeared to be raining. I saw the car cross the double yellow line on several occasions, and I saw a car getting out of his way as he turned about halfway through the tape, as he made the right turn. So I believe this conduct does require the two-level adjustment.

The judge thus found that at least one other driver (specifically, the driver who got out of Hazelwood's way as he was turning right) was endangered by Hazelwood's driving.

While the question of what constitutes endangerment is a mixed question of law and fact, it is highly fact-based. Therefore, significant deference to the district court is required. See, e.g., United States v. Ennenga, 263 F.3d 499, 502 (6th Cir.2001). Many courts have held that a defendant who led police on a high speed chase where others are likely to be nearby can properly be given a reckless endangerment enhancement. See, e.g., United States v. Mills, 1 F.3d 414, 420-23 (6th Cir.1993); United States v. Miner, 108 F.3d 967, 970 (8th Cir.1997); United States v. Alexander, 48 F.3d 1477, 1493 (9th Cir.1995). And though Hazelwood notes that no harm resulted to anyone from his driving, no actual harm is required to show reckless endangerment. See, e.g., United States v. Wright, No. 00-5623, 19 Fed. Appx. 230 (6th Cir. Aug 28, 2001) (per curiam order); United States v. Jimenez, 323 F.3d 320 (5th Cir.2003).

The district court found that the road was wet, that Hazelwood crossed the double yellow line several times while traveling at high speed, that there were numerous other vehicles on the road, and, most importantly, that at least one other car was forced to leave the pavement as Hazelwood abruptly turned right with his left blinker flashing. These findings, considered in toto, are sufficient to support a finding of reckless endangerment. Hazelwood has presented no evidence that would give us reason to disturb them. We therefore affirm the district court's finding that Hazelwood's driving recklessly endangered other drivers.

B. Criminal History Enhancements

1. Relevance of Three Prior Convictions

Hazelwood next argues that three of his prior convictions were "related," and that he thus should not have received separate criminal history points for each. The facts at issue in the three prior convictions are as follows:

First, on December 26, 1995, Hazelwood rented a kerosene heater from Philips Repair. However, he never made any of the required payments, and subsequently sold the heater to someone else without ever paying Philips. Philips Repair filed a criminal complaint in Marion County, Kentucky, on February 5, 1996. Second, sometime early that same month, Hazelwood test-drove a used Mercury Cougar, but did not return the keys to the vehicle at the end of the drive. On several occasions over the next two weeks, Hazelwood returned to the lot at night and took the car, always returning it before the lot opened the next morning. Finally, on February 13, 1996, Hazelwood and another man robbed a business in Springfield, Kentucky, using handguns. Part of the money handed over to Hazelwood was "bait" money with registered serial numbers.

The next day, Hazelwood was stopped in the Mercury Cougar for driving without a license plate. In his pocket, officers found some of the "bait" money. For the car theft, Hazelwood was charged in Marion County and convicted by a jury on June 20, 1996. For the theft of the heater, Hazelwood pleaded guilty in Marion County in July 1996, with the understanding that his sentence would run concurrently with his car theft sentence. For the robbery, Hazelwood pleaded guilty in Washington County pursuant to an agreement between the Marion and Washington County prosecutors that the sentences in all three cases would run concurrently. He then received (after some later amendments) a combined sentence of 14 years, including 14 years for the robbery and 5 years for the car theft, running concurrently.

Hazelwood argues that the car theft and robbery offenses were "related" under the Guidelines because they were part of the same course of conduct, because there was no intervening arrest, and because they were effectively consolidated for sentencing. In addition, he argues that the heater theft offense was effectively consolidated for sentencing, and thus that all three should be considered one felony offense for criminal history purposes.

Application Note 3 to U.S.S.G. § 4A1.2 defines "related" offenses for criminal history determination purposes as follows:

Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest.... Otherwise, prior sentences are considered related if they resulted from offenses that (A) occurred on the same occasion, (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.

We review a district court's determination of whether prior convictions are "related" for clear error, regardless of which prong of the relatedness test we are evaluating. See, e.g., United States v. Horn, 355 F.3d 610, 612-15 (6th Cir.2004). For two convictions to be related due to having been part of a single common scheme or plan, they must have been jointly planned or the commission of one offense necessarily requires the commission of the other. See, e.g., United States v. Irons, 196 F.3d 634, 638 (6th Cir.1999). The burden of showing such relatedness falls on the...