     Case: 14-10614       Document: 00513104446         Page: 1     Date Filed: 07/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 14-10614
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                     July 6, 2015
                                                                            Lyle W. Cayce
               Plaintiff - Appellee                                              Clerk

v.

DEREK RAY LACKEY,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:13-CR-287


Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:*
       Derek Ray Lackey pleaded guilty to being a felon in possession of
ammunition in violation of 18 U.S.C. § 922(g)(1). The sole issue on appeal is
whether the district court erred in increasing Lackey’s offense level by two
points for “recklessly creat[ing] a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a law enforcement
officer,” pursuant to U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3C1.2.

       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                     No. 14-10614

For the following reasons, we VACATE Lackey’s sentence and REMAND to the
district court for resentencing.
                                           I.
       At Lackey’s sentencing hearing, the Government presented testimony
from Special Agent Amanda Short of the Bureau of Alcohol, Tobacco, Firearms
and Explosives to support its argument that the district court should impose a
two-level offense enhancement under U.S.S.G. § 3C1.2, for recklessly creating
a substantial risk of death or serious bodily injury while fleeing from law
enforcement officers. Agent Short was the case agent assigned to Lackey’s case
and, although not present for the events leading up to Lackey’s arrest, she had
spoken to the three officers involved. 1 Agent Short relayed to the district court
that on October 22, 2012, a security guard at an apartment complex located at
8200 Fair Oaks Crossing in Dallas, Texas, flagged down Dallas police officers
and informed them that gunshots had been fired from a white Toyota pick-up
truck near the apartment complex. Upon returning to their police cars, the
officers noticed Lackey’s vehicle pass, which matched the description provided
by the security guard.
       Three officers in two marked police vehicles began to follow Lackey’s
truck as he drove north on Fair Oaks Crossing. Lackey drove for a short
distance 2 until he reached 8400 Fair Oaks Crossing, where the road intersects
with Royal Lane (hereinafter “the intersection”). At the intersection, Lackey
lawfully made a right-hand turn onto Royal Lane. Agent Short stated that



       1The Government did not offer the testimony of the officers actually involved in
Lackey’s arrest.
       2 As noted, the Dallas Officers were flagged down at 8200 Fair Oaks Crossing, where
they first noticed and began to follow Lackey’s vehicle. The officers followed Lackey as he
drove northbound from 8200 Fair Oaks Crossing to the intersection at 8400 Fair Oaks
Crossing.

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Lackey maintained a speed of approximately 30 miles per hour in this
residential area with a 35-mile-per-hour speed limit.
       After turning right onto Royal Lane, Lackey drove east before making a
lawful U-turn at one of the first opportunities to do so, and then proceeded west
on Royal Lane, back towards the intersection, for approximately 300 feet. As
Lackey neared the intersection for the second time, he drove in the far right-
hand lane, which was temporarily blocked off due to ongoing construction in
the area. 3 When he arrived at the intersection, Lackey made a right turn onto
Fair Oaks Crossing while the traffic light was red, without coming to a
complete stop. 4 After turning right, Lackey pulled into the parking lot of an
apartment complex located at 8401 Fair Oaks Crossing, which is immediately
north of the intersection, and stopped his vehicle. Agent Short indicated that
Lackey entered the parking lot at the second-available left-hand turn into the
apartment complex.
       The police report recounts that officers “attempted to stop the vehicle” at
the intersection but the parties dispute, and Agent Short was unable to clarify,
whether the officers “attempted to stop” Lackey when he first turned right onto
Royal Lane, before making a U-turn, or the second time he drove through the
intersection, moments before he pulled into the parking lot at 8401 Fair Oaks
Crossing.    Agent Short affirmed that she did not know when the officers




       3 Agent Short affirmed only that there was a temporary barrier of some sort on Royal
Lane at the time and she could not say whether there was any damage done to the barrier as
a result of Lackey’s path. There is no record evidence that Lackey’s route through the right-
hand lane was dangerous in any manner, nor is there any indication that he was cited for
this conduct or that it was unlawful.
       4 Agent Short and the PSR characterized this conduct as “running” a red light, but the
police report indicates only that Lackey’s vehicle turned northbound on Fair Oaks Crossing
“without coming to a complete stop at the red light.” Indeed, at the sentencing hearing, Agent
Short affirmed that Lackey simply “didn’t make a complete stop.”

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activated their lights and that she did not know when Lackey became aware
that he was being followed by law enforcement officers.
      Once Lackey stopped in the parking lot, his passenger exited the vehicle,
dropped a firearm, and fled on foot towards a nearby creek, escaping police
apprehension. Lackey, however, never attempted to flee. Lackey was then
placed under arrest as the officers searched his vehicle. During the search,
police found a small vial containing a “personal use” amount of PCP, a firearm
magazine holding eleven rounds of ammunition that did not match the pistol
dropped by Lackey’s passenger, as well as masks, bandanas, and hoods with
eye-holes.
      After hearing Agent Short’s testimony and the parties’ arguments, the
district court overruled Lackey’s objection to the § 3C1.2 enhancement,
characterizing the issue as a “close call.” With the two-level offense increase
under § 3C1.2, the Guidelines range was calculated as 46 to 57 months. The
district court sentenced Lackey to 52 months in prison, followed by a three-
year term of supervised release. Lackey timely appealed his sentence.
                                     II.
      We review a district court’s factual finding that a defendant acted
recklessly for purposes of § 3C1.2 for clear error. See, e.g., United States v.
Lugman, 130 F.3d 113, 115–16 (5th Cir. 1997). “A factual finding is not clearly
erroneous as long as it is plausible in light of the record as a whole.” United
States v. Jimenez, 323 F.3d 320, 322–23 (5th Cir. 2003) (quoting United States
v. Duncan, 191 F.3d 569, 575 (5th Cir. 1999)).
                                     III.
      Pursuant to U.S.S.G. § 3C1.2, “[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 district court may


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                                       No. 14-10614

increase the offense level by two. “In order to establish that the defendant’s
sentence should be enhanced under § 3C1.2, the government must show that
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, (5) and that this conduct occurred 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 that offense.” 5 United States
v. Southerland, 405 F.3d 263, 268 (5th Cir. 2005) (emphasis and internal
quotation marks omitted). “Recklessness” 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.” See U.S.S.G. § 2A1.4 cmt. n.1; U.S.S.G. § 3C1.2 cmt. n.2.
       For a district court to impose an enhancement under § 3C1.2, the record
must contain evidence beyond the mere fact of a suspect’s instinctive flight,
from which a court plausibly may find that the defendant, during flight from
law enforcement officers, acted in a manner that recklessly created a
substantial risk of death or serious bodily injury. See United States v. Gould,
529 F.3d 274, 277–78 (5th Cir. 2008) (holding that an armed pursuit by officers
alone does not justify an enhancement under § 3C1.2). Although the vast
majority of our cases upholding enhancements under § 3C1.2 involve evidence
that defendants engaged officers in a high-speed car chase or other exceedingly
dangerous conduct during flight, 6 “we have not limited the application of the


       5 On appeal, Lackey argues that none of the five prongs were met. Here, because we
conclude that the record does not plausibly support the district court’s finding of a reckless
creation of a substantial risk of death or serious bodily injury to another person, we need not
address the remaining elements.
       6See, e.g., Jimenez, 323 F.3d at 321 (upholding an enhancement under § 3C1.2 where
the defendant led police on a high-speed car chase for “approximately three quarters of a mile
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enhancement to situations resulting in actual harm or manifesting extremely
dangerous conduct by a defendant.” See Jimenez, 323 F.3d at 323. Likewise,
we do not limit application of the enhancement to those defendants whose
conduct during flight actually results in physical harm to others. 7 Id. at 324
(reasoning that a finding of recklessness is not “undercut by the mere fortuity
that actual harm to persons or property did not result”). Rather, our inquiry
is fact-intensive and is focused upon the defendant’s behavior during flight and
whether the defendant is “aware that his conduct creates a risk [of death or
serious bodily injury] of such a nature and degree that to disregard that risk
grossly deviates from the standard of care a reasonable person would exercise
under similar circumstances.” Id.
       Here, during this brief, below-speed-limit pursuit, the only evidence of
“recklessness” borne out by the record is Lackey’s failure to come to a complete
stop before making a right turn at a red light, shortly before he pulled into the


through both business and residential areas,” and after stopping his vehicle “fled from the
officers on foot”); see also United States v. Nino, 482 F. App’x 920, 921–22 (5th Cir. 2012) (per
curiam) (upholding the enhancement where the defendant, while carrying nine people in the
bed of a pickup truck, led police on a high-speed chase on the highway before entering a
residential neighborhood, “making two turns in rapid succession at a high rate of speed and
running a stop sign”); United States v. Delgado, 302 F. App’x 256, 257 (5th Cir. 2008) (per
curiam) (upholding a finding of recklessness where the defendant led “officers on an eight-
mile high speed chase at night along Interstate 35 through downtown Fort Worth, Texas”);
United States v. Morante, 280 F. App’x 431, 432 (5th Cir. 2008) (per curiam) (upholding
enhancement where “Morante’s car was traveling at a ‘high rate of speed,’ [] his car ‘spun out
of control,’ [] he hit a parked car belonging to a resident, and[], as a result of the chase, the
passenger in his car was killed”); United States v. Thompson, 166 F.3d 341, at *2 (5th Cir.
1998) (unpublished) (per curiam) (upholding the enhancement where defendants “traveled
down a one way street into oncoming traffic and ran several stop signs while the police gave
chase”).
       7 See, e.g., United States v. Bardell, 294 F. App’x 881, 881 (5th Cir. 2008) (per curiam)
(upholding the enhancement where the defendant “thr[ew] a loaded gun behind a bar where
people were standing”); United States v. Villanueva, 69 F. App’x 657, at *1 (5th Cir. 2003)
(per curiam) (upholding the enhancement where the defendant “thr[ew] . . . a bag containing
methamphetamine onto a public sidewalk while fleeing from police” because “anyone,
including a child, could have picked up the methamphetamine and ingested it”).

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                                    No. 14-10614

parking lot where he stopped the vehicle and submitted to arrest without
incident.    Although the Government appears to impute recklessness to
Lackey’s U-turn and passage through a construction area, the testimony of
Agent Short—which recounts the observations of the officers actually involved
in the pursuit—makes clear that the only traffic infraction committed by
Lackey was his failure to come to a complete stop at the red light. Moreover,
there is no indication in the record that Lackey was cited for evading arrest or
that he ever resisted arrest. Rather, Agent Short agreed that there is no
evidence that Lackey ever “act[ed] dangerously or obstructive or in a bad way”
once he stopped the vehicle and was placed under arrest.
      Further, the record is ambiguous as to when Lackey became aware that
officers were following his vehicle and suggests that officers may not have
activated their lights until just moments before Lackey pulled his vehicle into
a nearby parking lot and submitted to arrest. Indeed, Agent Short summarized
the incident by testifying that the officers “just followed [Lackey’s vehicle] for
[a] half mile until it came to a stop” and was unable to testify either as to when
officers activated their lights or as to when, or whether, Lackey was aware that
officers were following him. Additionally, although the pursuit and the red-
light traffic violation occurred in a residential area, there is no evidence
whatsoever showing that the area was populated with other drivers or
pedestrians at 1:30 am, when the incident took place. 8 Lastly, while visibility
may generally be an issue at 1:30 am, the defense exhibits introduced at
sentencing indicate that there was at least one streetlight at the intersection
where Lackey failed to come to a complete stop.



      8 Agent Short testified only that Royal Lane—which Lackey traveled on for
approximately 600 feet total (300 feet in each direction)—was generally “busy.” However,
Agent Short was unaware of the typical traffic patterns on Royal Lane at 1:30 am.

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       Reviewing the current record as a whole, we cannot conclude that the
approximately half-mile, 30-mile-per-hour pursuit, involving one minor traffic
violation that occurred at 1:30 am, moments before Lackey stopped his vehicle
and submitted to arrest, 9 plausibly supports the district court’s finding that
Lackey recklessly created a substantial risk of death or serious bodily harm. In
other contexts, we have explained that “a substantial risk requires a strong
probability that the event . . . will occur.” Rodriguez v. Holder, 705 F.3d 207,
213 (5th Cir. 2013) (emphasis added); accord United States v. Gomez-Cortez,
34 F. App’x 152, at *2 (5th Cir. 2002) (per curiam) (describing a “substantial”
risk as a risk that is “material” and “real”). Driving well within the speed limit
for approximately a half-mile before ultimately stopping and cooperating with
officers, but failing to come to a complete stop at a red light before pulling over
into a nearby parking lot, does not recklessly create a “strong probability” that
death or serious bodily injury will result, nor does this conduct amount to a
“gross deviation” from the standard of care a reasonable person would exercise
under similar circumstances. Indeed, Lackey’s behavior is significantly less
dangerous than the behavior of the defendant in Gould—who ran from armed
police officers after they drew their weapons and continued his flight until
officers physically stopped and captured him 10—and we nonetheless held that



       9As explained supra, the traffic violation occurred when Lackey turned right on red
at the intersection at 8400 Fair Oaks Crossing, immediately before he pulled into the
apartment complex at 8401 Fair Oaks Crossing, just north of the intersection.
       10 In Gould, we found that although there was evidence of an armed pursuit involving
multiple officers, the record lacked any evidence regarding, for example, “how far [the
defendant] ran, . . . [the] description of the area where the chase occurred . . . [or whether the
defendant] heard the officers order him to stop or that he reacted in a threatening way or
made any threatening actions toward the officers as he ran.” Gould, 529 F.3d at 277.
Rejecting the Government’s argument that an armed foot chase alone was sufficient to justify
the enhancement, we concluded that the “record is too sparse for us to determine whether
[the defendant] was reckless.” Id. at 277–78.


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the district court there clearly erred in finding that Gould recklessly created a
substantial risk of death or serious bodily injury. Gould, 529 F.3d at 275–76.
      Clear error review is highly deferential, but it of course does not render
unreviewable the district court’s finding that Lackey recklessly created a
substantial risk of death or serious bodily injury. See United States v. Sanders,
343 F.3d 511, 528 (5th Cir. 2003) (“We realize that clear error is a deferential
standard of review; however, it is more than a rubber stamp.”). Here, the
district court clearly erred in imposing the two-level enhancement under
§ 3C1.2 because, based on the current record as a whole, we cannot find that it
was plausible to conclude that Lackey recklessly created a substantial risk of
death or serious bodily injury during flight.
                                CONCLUSION
      For these reasons, we VACATE Lackey’s sentence and REMAND for
resentencing. On remand, “[a]dditional relevant evidence of the flight is
admissible on resentencing if the Government has any to offer.” Gould, 529
F.3d at 278.




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                                 No. 14-10614

STEPHEN A. HIGGINSON, Circuit Judge, dissenting:
      I would not disturb the district court’s factual finding that Lackey’s
conduct amounted to reckless endangerment during flight, see United States v.
Lugman, 130 F.3d 113, 115 (5th Cir. 1997), above all where he ran a red light
on a busy street in a residential area at night. Reviewing the record as a whole,
I am not left with a “definite and firm conviction that a mistake has been
committed.” Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers
Pension Trust, 508 U.S. 602, 622 (1993) (internal quotation marks and citation
omitted).




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