United States v. Shivers

• Decision Date: 27 December 2022
• Docket Number: 21-4091
• Citation: 56 F.4th 320
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Shamauri Levon SHIVERS, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

56 F.4th 320

UNITED STATES of America, Plaintiff – Appellee,

v.Shamauri Levon SHIVERS, Defendant – Appellant.

No. 21-4091

United States Court of Appeals, Fourth Circuit.

Argued: October 27, 2022

Decided: December 27, 2022

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before AGEE and HARRIS, Circuit Judges, and Lydia K. GRIGGSBY, United States District Judge for the District of Maryland, sitting by designation.

Vacated and remanded with instructions by published opinion. Judge Agee wrote the opinion in which Judge Harris and Judge Griggsby joined.

AGEE, Circuit Judge:

Shamauri Shivers appeals his sentence for Hobbs Act robbery, asserting that the district court erred in applying the U.S.S.G. § 3C1.2 sentencing enhancement for reckless endangerment during flight when he discarded a loaded firearm in view of pursuing law enforcement officers. As explained below, we agree with Shivers that the record does not reflect sufficient evidence that he created a substantial risk of death or serious bodily injury to another person when he fled from police. Therefore, the district court clearly erred by applying the enhancement. Further, we find that this error was not harmless because the district court declined to state that it would have applied the same sentence regardless of the enhancement, although it was asked to do so. Accordingly, we vacate Shivers' sentence and remand to the district court for resentencing without application of the § 3C1.2 enhancement.

I.

Under U.S.S.G. § 3C1.2, a defendant will receive a two-level sentencing enhancement "[i]f [he or she] 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. "Reckless" is defined as "a situation in which the defendant was 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." Id. § 3C1.2 cmt. n.2; id. § 2A1.4 cmt. n.1. "To another person" refers to "any person, except a participant in the offense who willingly participated in the flight." Id. § 3C1.2 cmt. n.4.

We recently applied § 3C1.2 in United States v. Dennings , 922 F.3d 232, 238 (4th Cir. 2019). In that case, while the defendant fled from police, the pursuing officer observed that his right hand was not empty but "was unable to determine if [he] was digging in his pocket or holding onto something." Id. at 234. The defendant eventually fell, and the officer landed on top of him. Id. They struggled, and the defendant was "hesitant to relinquish control of" his right arm. Id. Officers then located a loaded firearm in his jacket pocket. Id. This Court discerned no clear error in the district court's finding that these circumstances justified the application of § 3C1.2 because they created a risk that (1) the firearm could have discharged, and (2) the pursuing officer could have drawn his firearm in self-defense. Id. at 238. Further, the defendant's conduct was reckless—by "moving his hands in a way that drew attention to the risk that he was reaching for a firearm," he did not exercise reasonable care. Id. Therefore, the Court observed that, assuming mere armed flight would not warrant the application of § 3C1.2, the situation presented involved "flight-plus-something more," thus justifying the enhancement. Id. at 237.

II.

With this baseline for understanding the law underlying Shivers' arguments, we turn to the undisputed facts.

In January 2019, Shivers robbed a convenience store at gunpoint in the middle of the night. An off-duty police detective who provided security for the store observed Shivers committing the robbery and contacted the police department. The police responded immediately, set up a perimeter, and confronted Shivers as he exited the store. Shivers ran, and officers pursued on foot. As they ran, one officer saw Shivers discard a revolver in the street. Police eventually caught up to Shivers, and when an officer confronted Shivers with her service rifle, he submitted to being handcuffed without incident.

Shivers was later charged with and pleaded guilty to Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) as well as brandishing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

Before sentencing, a probation officer prepared a Presentence Investigation Report ("PSR") that recommended a two-level enhancement to Shivers' offense level pursuant to § 3C1.2. Shivers objected to the enhancement, claiming that he did not create a substantial risk of death or serious bodily injury because he did not point his firearm at law enforcement officers and did not resist arrest. Instead, he discarded the firearm shortly after leaving the convenience store and surrendered to police after a foot pursuit. He argued that under Dennings , a § 3C1.2 enhancement required something more than a passive or instinctive act, and his flight lacked that something more.

Probation responded as follows:

[O]fficers had established a perimeter around the store prior to the defendant exiting. When he did come out of the store, loud clear commands were given to Shivers to get on the ground while law enforcement pointed firearms at him. The defendant disregarded those commands and fled from authorities while armed. Furthermore, during flight in a congested area of downtown Asheville, Shivers threw his firearm in the street. In order to throw his firearm during flight, Shivers would have had to make an active movement with his arm. Such a movement by a defendant known to be armed with a firearm could easily have been interpreted by pursuing law enforcement as aggressive and dangerous conduct. When the gun was secured, it was found to be loaded with six live rounds.

.... Thus, despite the fact that Shivers subsequently surrendered to law enforcement after he fled, the Probation Office maintains that the defendant's conduct was more than mere possession of a firearm, that it did recklessly create a substantial risk of death or serious injury, and that the enhancement has been properly applied.

J.A. 160–61.

The district court overruled Shivers' objection to the PSR and adopted the recommendation to apply the § 3C1.2 enhancement, although it found the issue to be "a very close call." Id. at 101. The court agreed that the enhancement required "something more than mere passive flight," but the "something more" need not be "much more"—there simply must be "something that can be specifically identified as giving rise to a potential danger to a bystander, to a law enforcement officer, or even to the suspect." Id. And the court found that "something more" in Shivers' case for two reasons. Id. First, the court reasoned that for Shivers to throw or drop the firearm, he had to reach for it, which could have caused a law enforcement officer to react with deadly force. Second, the court noted that throwing the firearm could have caused it to accidentally discharge and thereby "potentially caus[ed] harm to a bystander, or even the suspect himself." Id. at 101–02.

With the § 3C1.2 enhancement, Shivers' sentencing range was 121 to 130 months' imprisonment.¹ He asked the court for a 114-month sentence, asserting that his history and characteristics warranted a downward variance. The Government opposed, arguing that the seriousness of the offense and Shivers' choice to flee warranted a 121-month sentence. The court sentenced Shivers to 114 months' imprisonment. The court explained that the facts justifying the application of the enhancement were so slight that some reduction of the sentence was warranted. The court also reasoned that Shivers' history and characteristics called for a lower sentence.

The Government asked if the court would "be willing to say that even if the objection to the presentence report [regarding the § 3C1.2 enhancement] should have been sustained that the Court still believes that 114 months would be the appropriate sentence." Id. at 123–24. The court responded: "I will go so far as to say on the record that the sentence is based on the facts that are before the Court with regard to sentencing and the application of the factors under 3553(a). The technical calculation of the guideline range is not really a significant factor in that calculation." Id. at 124. Consistent with this statement, in the Statement of Reasons, the court declined to check a box indicating that "[i]n the event the guideline determination(s) made in this case are found to be incorrect, the court would impose a sentence identical to that imposed in this case." Id. at 165.

III.

When considering a challenge to a district court's application of the Guidelines, this Court reviews factual findings for clear error and legal conclusions de novo. United States v. Allen , 446 F.3d 522, 527 (4th Cir. 2006). Specifically, the application of the § 3C1.2 enhancement is reviewed for clear error. United States v. Carter , 601 F.3d 252, 254 (4th Cir. 2010). The Court will not find clear error unless "on the entire evidence, we are left with the definite and firm conviction that a mistake has been committed." United States v. Barnett , 48 F.4th 216, 220 (4th Cir. 2022) (quoting United States v. Manigan , 592 F.3d 621, 631 (4th Cir. 2010) ).

Shivers argues that the district court's application of the § 3C1.2 enhancement erroneously rested upon (1) the risk that Shivers' actions posed to himself, (2) the unsupported assumption...