                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 18 1999
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.
                                                       No. 98-5256
                                                   (D.C. No. 98-CR-53C)
 JOHN DECLAUS GREEN, aka James
                                                       (N.D. Okla.)
 Ward, aka John Delucas Green, aka
 James Delucas Lopez,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.


      Defendant-Appellant John DeClaus Green appeals his sentence on one

count of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g). He argues that the district court erred in imposing a two-level upward

departure under U.S.S.G. § 5K2.0 for fleeing arrest. Although we find that the



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
district court impermissibly relied on a departure factor already adequately

contemplated under the Sentencing Guidelines, we conclude that the same two-

level adjustment was justified under an enhancement provision cited in Green’s

presentence report. Because we are convinced that the district court therefore

would have imposed the same sentence even absent the erroneous departure, we

need not remand for resentencing.

                                 BACKGROUND

      In March 1998, the Tulsa Police Department, pursuant to a search warrant,

seized an American Express package shipped to a Tulsa address from California.

The package contained, inter alia, counterfeit credit cards. Tulsa authorities

subsequently conducted a controlled delivery of the package at the residential

address listed on the package, and observed Green drive to the residence, pick up

the package, examine its contents, and place the package in the trunk of his

vehicle. When a marked police unit attempted to stop Green, he led police on a

chase, traveling through residential streets at approximately 50 miles per hour and

narrowly avoiding a collision with a police car containing two officers. Green

ultimately abandoned his vehicle and fled on foot, and resisted arrest when he was

finally apprehended.




                                        -2-
      During their search of Green, police discovered a pawn shop receipt in

Green’s wallet. The receipt reflected Green’s purchase of a .22 caliber rifle some

four months prior to his arrest.

      Green was charged with two counts of trafficking in counterfeit access

devices, in violation of 18 U.S.C. § 1029(a)(1); one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g); and one count of

making a false statement in connection with the purchase of a firearm, in

violation of 26 U.S.C. § 5861(1).

      On June 18, 1998, pursuant to a plea agreement, John DeClaus Green pled

guilty to the felon-in-possession charge, in exchange for the government’s

agreement to dismiss the remaining charges.

      Green’s presentence investigation report (“PSR”) recommended a two-

offense level enhancement for “obstruction of justice,” based upon Green’s flight

and resisting arrest. Green objected to the enhancement, arguing that there was

no nexus between his attempt to flee (to evade arrest for the counterfeit credit

cards) and the firearms offense for which he was convicted (purchasing a rifle

four months prior to the chase and arrest). At Green’s sentencing hearing on

November 10, 1998, the district court agreed that the officers were attempting to

apprehend Green for trafficking in counterfeit credit cards, not to investigate any

weapons offense. The court then stated:


                                         -3-
              But, having said that, if – it if is correct that you have to have
      a nexus and there is no nexus here, then the Court must consider the
      fact that the guidelines don’t take into consideration the situation,
      and therefore under 5K2.0, the Court has the right to depart. . . . And
      so it seems to the Court that under either theory the Court still has
      the right to take this into consideration, and therefore I’m going to do
      that.
              ...
              So whether there is a nexus requirement, whether the nexus
      exists or it doesn’t, is really six of one and half a dozen of another,
      because if it doesn’t then the Court has the right to depart upward,
      and I do so.

(Sentencing Tr. 7-8.)

      Green was sentenced to 78 months’ imprisonment, 3 years’ supervised

release, and a fine of $3,000. He now appeals.

                                   DISCUSSION

      Where a district court’s sentencing decision rests primarily on a legal

conclusion, such as whether a factor is a permissible ground for departure, our

review is plenary. See United States v. Whiteskunk, 162 F.3d 1244, 1249 (10th

Cir. 1998). A sentencing court’s use of an invalid departure ground is an

incorrect application of the guidelines, ordinarily requiring remand under 18

U.S.C. § 3742 for further sentencing proceedings. See United States v. Tisdale, 7

F.3d 957, 962 n.5 (10th Cir. 1993). However, remand is not necessary if we

conclude that, on the record as a whole, the district court “‘would have imposed

the same sentence absent reliance on the invalid factors.’” United States v. Smith,




                                         -4-
133 F.3d 737, 750 (10th Cir. 1997) (quoting Koon v. United States, 518 U.S. 81,

113 (1996)), cert. denied, 118 S. Ct. 2036 (1998).

      A sentencing court may depart from the applicable guideline range “if the

court finds ‘that there exists an aggravating or mitigating circumstance of a kind,

or to a degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a sentence

different from that described.’” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)).

      Here, the circumstance relied upon by the district court to impose a two-

level upward departure (high speed chase/flight from arrest) is in fact a factor

addressed by the PSR’s recommended enhancement under U.S.S.G. § 3C1.2. 1 See

United States v. Giacometti, 28 F.3d 698, 701 (7th Cir. 1994) (vacating district

court’s upward departure based on high speed chase, because such conduct was

“clearly the sort of reckless behavior covered by § 3C1.2.”) That sentencing

guideline provision states:

      Reckless Endangerment During Flight
      If 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, increase by 2 levels.

U.S.S.G. § 3C1.2.



      1
       The PSR’s recommendation quoted language from (and cited to) § 3C1.2
(“Reckless Endangerment During Flight”) but mislabeled the adjustment as one
for “Obstruction of Justice,” which appears at § 3C1.1.

                                         -5-
         Despite Green’s protestations to the contrary, we discern nothing in this

provision requiring that the reckless endangerment occur during flight to avoid

arrest for the particular offense of conviction. 2 The reckless endangerment

enhancement under § 3C1.2 is simply part of the relevant conduct under § 1B1.3 a

court may take into consideration in establishing the appropriate offense level and

guideline range for sentencing. In other words, if a defendant is pursued and

arrested for one offense, yet as a result of that arrest, the defendant is charged and

convicted of other, different offenses, then the defendant’s reckless endangerment

during flight -- that is, where the defendant creates a substantial risk of death or

serious bodily injury to another person -- is relevant conduct that may be

considered by the sentencing court in establishing the defendant’s base offense

level.

         Thus, Green’s flight from arrest is conduct that is addressed by § 3C1.2.

Because his “flight from arrest is a factor adequately considered by the

Sentencing Commission in formulating the Guidelines, it cannot be used as a

basis for departure.” United States v. Madera-Gallegos, 945 F.2d 264, 268 (9th

Cir. 1991); Giacometti, 28 F.3d at 701 (“Since the Sentencing Commission has



       We acknowledge that in United States v. Duran, 37 F.3d 557 (9th Cir.
         2

1994), the Ninth Circuit assumed, without holding, that § 3C1.2 requires a nexus
between the crime of conviction and the reckless endangerment. See Duran, 37
F.3d at 559 (finding that sufficient nexus existed). However, we have found no
case law holding that such a nexus is required.

                                           -6-
considered the dangers high speed chases pose to innocents, the district court

lacked authority to depart upward without first applying § 3C1.2.”). However, it

is clear from the record before us that the sentencing judge would have properly

imposed the two-point enhancement under § 3C1.2 if he believed he was

authorized to do so. Because we are confident that Green would have received

the same sentence absent the district court’s erroneous departure, we need not

remand for resentencing. AFFIRMED. 3

      The mandate shall issue forthwith.

                                      ENTERED FOR THE COURT



                                      David M. Ebel
                                      Circuit Judge




      3
       Because we conclude that the district court’s erroneous departure was
harmless, we need not address Green’s argument that the district court failed to
give adequate notice under Fed. R. Crim. P. 32 of its intent and basis to depart.
See Whiteskunk, 162 F.3d at 1254.

                                        -7-
