                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-4094
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Minnesota.
Pablo Bazaldua,                           *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: September 24, 2007
                                 Filed: October 12, 2007
                                  ___________

Before MURPHY, MELLOY, and SMITH, Circuit Judges.
                          ___________

SMITH, Circuit Judge.

       Pablo Bazaldua pleaded guilty, pursuant to a plea agreement, to possession with
intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A). In the plea agreement, which was not binding on the court,
the parties anticipated a Guidelines range of 168 to 210 months, and they agreed "that
none of the adjustments set forth in Guideline Sections 3A1.1 through 3C1.2 [were]
applicable in this case." At sentencing, however, the district court1 applied a two-level
enhancement for reckless endangerment during flight, pursuant to U.S.S.G. § 3C1.2.

      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
This enhancement increased Bazaldua's Guidelines range to 210 to 262 months. The
court ultimately varied downward and sentenced Bazaldua to 189 months'
imprisonment. Bazaldua appeals the court's application of § 3C1.2 and the sentence
imposed. We affirm.

                                    I. Background
       Minnesota law enforcement officers received information from a confidential
informant that Bazaldua was distributing large quantities of methamphetamine in the
Twin Cities area. On March 15, 2006, officers learned that Bazaldua had recently
returned from Texas with a methamphetamine shipment. Surveillance officers
followed Bazaldua to a St. Paul apartment, but when the officers identified themselves
and attempted to speak to Bazaldua he fled in his vehicle. With the officers following,
Bazaldua drove unsafely and too fast for the road conditions, and, therefore, the
officers suspended their pursuit.

        Some time later, law enforcement officers relocated Bazaldua's vehicle and
resumed pursuit, with their emergency lights activated. In hazardous conditions,
including slippery roads caused by heavy snow and ice, Bazaldua wove in and out of
traffic while being pursued. Because Bazaldua refused to stop, an officer executed a
PIT maneuver,2 causing Bazaldua's vehicle to spin out of control and come to a stop.
After Bazaldua's vehicle stopped, he refused to exit the vehicle, but was subsequently
placed under arrest with the assistance of a police dog.




      2
        A "PIT maneuver" is a method used by police to force a pursued vehicle to
abruptly turn sideways to the direction of travel, by bumping the back side of the
pursued vehicle with the police vehicle, causing the fleeing driver to lose control and
stop. http://www.wikipedia.org (last visited Sept. 20, 2007). "PIT" stands for either
"Precision Immobilization Technique," "Pursuit Intervention Technique," or "Parallel
Immobilization Technique," depending on the police department using it. Id.

                                         -2-
       The police investigation revealed that Bazaldua stored methamphetamine in a
Minneapolis storage facility. After obtaining a search warrant for the storage unit,
officers searched the unit and recovered approximately two pounds of
methamphetamine. According to laboratory analysis, the recovered methamphetamine
weighed 861 grams (actual). A one-count indictment with forfeiture allegations was
filed with the District of Minnesota charging Bazaldua with possession with intent to
distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(A).

       Bazaldua pleaded guilty to the charge, pursuant to a plea agreement with the
government. The plea agreement anticipated a base offense level of 36 based upon the
quantity of methamphetamine seized. The parties also anticipated a three-level
reduction for Bazaldua's acceptance of responsibility, resulting in a total offense level
of 33. With a criminal history Category III and a total offense level of 33, the parties
considered Bazaldua's advisory Guideline range to be 168 to 210 months. In
paragraph 6(c) of the plea agreement, "[t]he parties agree[d] that none of the
adjustments set forth in Guideline Sections 3A1.1 through 3C1.2 [were] applicable in
this case."

      After Bazaldua entered his guilty plea, the court ordered the United States
Probation Office to prepare a Presentence Investigation Report (PSR). The PSR
agreed with the parties' stipulations that: Bazaldua's base offense level was 36; the
offense level should be reduced three levels for acceptance of responsibility; and
Bazaldua's criminal history was a Category III. In contrast to the plea agreement,
however, the PSR recommended that the district court apply the two-level
enhancement for reckless endangerment during flight pursuant to U.S.S.G. § 3C1.2.
With the application of § 3C1.2, Bazaldua's Guideline range became 210 to 262
months.




                                          -3-
       Bazaldua did not file any objections to the factual assertions contained in the
PSR, but objected to the § 3C1.2 enhancement. Thus, while Bazaldua acknowledged
that the underlying events occurred, he asserted that his flight did not rise to the level
of reckless endangerment required by § 3C1.2, because he only engaged in a short
"chase," and that no damage was done to any person or property. The government did
not object to the application of the enhancement, but urged the court to impose a
sentence within the Guidelines range anticipated in the plea agreement.

       The district court adopted the facts contained in the PSR, and not bound by the
plea agreement, it applied § 3C1.2, thus finding the appropriate Guideline range to be
210 to 262 months. The court, however, varied downward and imposed a sentence of
189 months. In the court's Statement of Reasons, it explained that the sentence was
imposed because it was "in the middle of the guideline range contemplated in the plea
agreement" and was "sufficient to punish the defendant and meet[] with other statutory
requirements."

                                     II. Discussion
       Bazaldua contends that the district court erred in applying U.S.S.G. § 3C1.2
because there was an insufficient factual basis for finding that he knowingly fled from
law enforcement or that his conduct was "reckless." "We review for clear error a
district court's findings with respect to reckless endangerment during flight." United
States v. Rice, 184 F.3d 740, 742 (8th Cir. 1999).

        Section 3C1.2 states that a defendant's offense level should be increased by two
levels "[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." Commentary note 2 to § 3C1.2 states that the term "Reckless" is defined in
the commentary to § 2A1.4. U.S.S.G. § 3C1.2 com. n.2. The commentary to § 2A1.4
states that "'[r]eckless' means 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

                                           -4-
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 com. n.1. "For purposes
of [§ 3C1.2], "reckless" means that the conduct was at least reckless and includes any
higher level of culpability." U.S.S.G. § 3C1.2 com. n.2.

       The undisputed facts contained within the PSR provide sufficient factual basis
for the district court's ruling applying § 3C1.2 . Regarding Bazaldua's knowledge that
he was being pursued by and fled from law enforcement, the offense conduct section
of the PSR3 stated that law enforcement officers "identified themselves" to Bazaldua
in an attempt to speak with him, but that Bazaldua fled. The officers followed him for
a period of time before calling off the pursuit due to Bazaldua's unsafe driving. When
the officers spotted Bazaldua the second time, they "pursued him again in and out of
traffic with emergency lights activated," but Bazaldua refused to stop, forcing the
officers to execute a PIT maneuver to spin out his vehicle and end the pursuit. Even
after the car was stopped, Bazaldua refused to exit the vehicle until a police K-9
assisted the officers, allowing Bazaldua to be arrested. In light of these facts, the
district court did not clearly err in finding that Bazaldua knew that he was fleeing from
law enforcement.4


      3
        Bazaldua did not object to the facts contained in the PSR, and the district court
adopted those facts in full. Accordingly, those facts are deemed admitted. United
States v. Porter, 439 F.3d 845, 849 (8th Cir. 2006).
      4
        See United States v. Sykes, 4 F.3d 697, 700 (8th Cir. 1993) (finding defendant
knew that he was fleeing law enforcement when officers identified themselves, drove
car with emergency light activated, and police had to run defendant off road to
apprehend him); United States v. Rice, 184 F.3d 740, 742 (8th Cir. 1999) (finding
defendant knew that law enforcement was present when officers wore badges and
were clearly identified); United States v. Moore, 242 F.3d 1080 (8th Cir. 2001)
(rejecting defendant's argument that government had not proved that he knowingly
fled from police where defendant fled after officers had identified themselves
verbally, officers in front of defendant's car were wearing raid vests with "POLICE"
on them, police pursued defendant with flashing lights activated, and defendant raced

                                          -5-
       Likewise, the district court did not err in finding that Bazaldua "was aware of
the risk created by his conduct" and that his disregard of 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 com. n.1. The facts show Bazaldua was driving in
heavy snow, too fast for the slick road conditions, and weaving in and out of traffic
while being pursued by law enforcement, refusing to stop until he was forcibly spun
out.

       We also reject Bazaldua's argument that § 3C1.2 does not apply because no
other person or property was injured or damaged during the chase. The enhancement
does not require any injury or damage. It only requires that the defendant's actions
create "a substantial risk of death or serious bodily injury to another person in the
course of fleeing from a law enforcement officer." Id. (emphasis added); see also
United States v. Harper, 466 F.3d 634, 649–50 (8th Cir. 2006) (finding no clear error
in applying § 3C1.2 and concluding that the fact that defendant was the only one
injured did not alter the risk of bodily injury created by his flight). The risk of death
or serious bodily injury posed to other drivers and the pursuing officers is patently
obvious in the facts of this case.

      We hold that the district court's factual findings for application of U.S.S.G. §
3C1.2 were not clearly erroneous. The court correctly determined that Bazaldua's
actions recklessly created a substantial risk of death or serious bodily injury to another
person in the course of fleeing from law enforcement. See United States v. St. James,
415 F.3d 800, 806 (8th Cir. 2005) (finding no error in applying § 3C1.2 where
defendant fled from police, driving "erratically at high speeds on congested streets,
thereby placing both law enforcement personnel and the public in danger"); United
States v. Caldwell, 192 Fed. Appx. 576 (8th Cir. 2006) (unpublished) (finding



down highway, ran lights, and discarded contraband while being followed).


                                           -6-
imposition of § 3C1.2 was not clearly erroneous where defendant was driving
erratically and speeding on a congested highway while fleeing from law enforcement
officers in an attempt to evade arrest on drug charges).

      Finally, the district court varied downward and sentenced Bazaldua within the
sentencing range that would have applied had the district court not found U.S.S.G. §
3C1.2 applicable. We cannot say such a sentence is unreasonable.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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