                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           JUN 8 2004
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,
                                                        No. 03-5167
             Plaintiff-Appellee,
 v.                                            Northern District of Oklahoma
 ANTWAN DONYELL HAMPTON,                          (D.C. No. 02-CR-176 H)

             Defendant-Appellant.


                          ORDER AND JUDGMENT            *




Before EBEL , MURPHY , and McCONNELL , Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore submitted without oral argument.

      Antwan Donyell Hampton, having previously been convicted of a felony,

was convicted of one count of knowingly possessing a firearm and ammunition in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, the district


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
court overruled Mr. Hampton’s objection to the enhancement, by two levels, of

his offense level for reckless endangerment during flight, pursuant to U.S.S.G.

§ 3C1.2. This enhancement was based on evidence that while being pursued by

police officers and while holding a loaded gun, the defendant tried to force his

way into the home of a stranger. The defendant appeals the enhancement,

asserting that his conduct did not constitute reckless endangerment during flight.

Because the district court did not clearly err in finding that the defendant’s

conduct constituted reckless endangerment during flight, we affirm the district

court’s enhancement of the defendant’s offense level.

                                  BACKGROUND

      On the night of September 27, 2002, Tulsa police officers heard gun shots

and shortly thereafter saw the defendant riding away from the vicinity on a

bicycle. The officers ordered the defendant to stop, but the defendant ignored

them. The officers pursued the defendant who rode into an apartment complex.

After crashing on his bicycle, the defendant fled on foot.

      A twenty-one-year-old resident of one of the apartments testified at a grand

jury hearing that as he was about to leave his apartment, he saw spot lights

coming from police cars and heard someone running. The resident got scared and

tried to shut his apartment door, but the defendant, who had run up to the door,

started pushing against the door apparently in order to enter the apartment. The


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resident told his mother and three younger siblings to go upstairs. After

struggling for about two minutes against the defendant’s efforts to enter the

apartment, the resident got tired and let the door open half-way. The resident

testified that the defendant then stuck his arm into the apartment and handed the

resident a loaded gun. Then, the defendant threw a few empty bullet shells on the

apartment floor and tried to flee. He was immediately apprehended by police

officers. The police officers testified that they saw the defendant remove the gun

from his waistband while he was pushing against the door. The defendant was

identified as Antwan Hampton.

      Mr. Hampton pled guilty to the charge of knowingly possessing a firearm

and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The

Presentence Report recommended that his offense level be enhanced by two levels

for reckless endangerment during flight, pursuant to U.S.S.G. § 3C1.2. Mr.

Hampton timely objected to this proposed enhancement. The district court

overruled his objection. The defendant was sentenced to be placed in the custody

of the Bureau of Prisons for fifty-four months followed by three years of

supervised release. The district court also imposed a one thousand dollar fine.

Mr. Hampton appeals the two-level enhancement of his offense level.




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                                     ANALYSIS

      Our review of a district court’s conclusion that a defendant’s conduct

constitutes reckless endangerment during flight is for clear error. United States v.

Brown, 314 F.3d 1216, 1221 (10th Cir. 2003); United States v. Conley, 131 F.3d

1387, 1389 (10th Cir. 1997). In addition, “[e]vidence underlying a district court's

sentence is reviewed by viewing the evidence, and inferences drawn therefrom, in

the light most favorable to the district court’s determination.” Conley, 131 F.3d

at 1389; see United States v. Cruz, 58 F.3d 550, 553 (10th Cir.1995).

      Reckless endangerment during flight is found “[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.” U.S.S.G. § 3C1.2. The

defendant admitted that his behavior was reckless and that he was fleeing from

the police officers. However, the defendant argues that his conduct did not create

a substantial risk of death or serious bodily injury to others because he just

handed the gun to the resident and because the gun had a safety feature.

      “Reckless” refers to “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.” U.S.S.G. § 2A1.4, cmt.

n.1. Moreover, “the standard of care envisioned by the Guidelines is that of the


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reasonable person, not the reasonable fleeing criminal suspect.”        Conley , 131 F.3d

at 1389. In Brown , the defendant, while fleeing from the police, discarded his

loaded gun where children were likely to find it. 314 F.3d at 1221. In that case,

we held that the defendant’s behavior constituted reckless endangerment.          Id.

      Courts in some jurisdictions have held that mere flight on foot from police

officers is not enough to constitute reckless endangerment.        See, e.g. , United

States v. Reyes-Oseguera , 106 F.3d 1481, 1483 (9th      Cir. 1997). However, the

defendant in the present case did more than merely flee: while carrying a loaded

gun, he rode his bicycle after dark in an apartment complex so fast and recklessly

that he crashed. Moreover, the district court also found that the defendant tried to

push his way into an apartment while holding a loaded gun. As he struggled

against the door while holding the loaded gun, the gun could have discharged and

injured someone. The safety feature on the gun does not totally eliminate this

risk. The safety feature prevented the gun from firing without the trigger being

pulled, but it did not protect against any accidental pulling of the trigger during

the struggle.

      Other aspects of the defendant’s behavior also contributed to the risk. The

fact that the police officers saw the defendant draw the gun could have led to a

shootout. If shooting had started, it could have resulted in death or serious bodily

injury to the officers or bystanders.


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      We agree with the district court that these risks, taken together, constitute a

substantial risk of death or serious bodily injury. The defendant’s behavior

deviated from the standard of care that a reasonable person would exercise in

such a situation. The district court’s determination that Antwan Hampton’s

behavior constituted reckless endangerment was correct, and certainly was not

clearly erroneous.

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED. Appellee’s motion to seal appellee’s brief is

granted.

                                               Entered for the Court,

                                               Michael W. McConnell
                                               Circuit Judge




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