                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       June 27, 2008
                      UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 07-4216
 v.                                              (D.C. No. 2:07-CR-350-TC-1)
                                                           (D. Utah)
 MICHAEL L. DAVIDSON, a/k/a
 Michael L. Peterson,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, EBEL, and O’BRIEN, Circuit Judges.


      Defendant-Appellant Michael Davidson pleaded guilty to one count of

escaping from federal custody in violation of 18 U.S.C. § 751(a). The district

court sentenced Mr. Davidson to 33 months’ imprisonment and three years’

supervised release. On appeal, Mr. Davidson challenges the district court’s

application of a 2-level upward adjustment pursuant to § 3C1.2 of the United

States Sentencing Guidelines (“Guidelines”) for reckless endangerment during

flight. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
3742(a) and affirm.



                                     Background

      On June 21, 2002, Mr. Davidson was sentenced by a district court to 60

months’ imprisonment for possession of a firearm while drug trafficking. After

serving most of his sentence, he was furloughed from a federal penitentiary in

Atwater, California and was required to self-report to a halfway house in Salt

Lake City, Utah on April 19, 2007. Mr. Davidson notified the halfway house that

he had been bumped from his bus in Las Vegas, Nevada in the early morning of

April 19, but he did not arrive later that day.

      Law enforcement had no contact with Mr. Davidson until May 19, 2007, a

month later, when police officers in Salt Lake City noticed a suspicious person

sitting in a vehicle in a grocery store parking lot. Due to the person’s suspicious

behavior, the officers checked the license plate on the vehicle which revealed that

the vehicle was stolen. As the officers activated their lights and siren, Mr.

Davidson quickly drove the vehicle across the parking lot nearly striking the

officers’ vehicle. Because many vehicles and pedestrians populated the parking

lot, the officers did not continue their pursuit. Mr. Davidson then slammed on the

brakes, stopping before driving off a small cement wall into cross traffic. Mr.

Davidson then fled on foot and hid behind a trash container where the officers

apprehended him. When asked why he fled, Mr. Davidson explained “I saw the

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cops and did not want to get caught.” III R. at 3. A search of the vehicle

revealed an empty pack of cigarettes containing a green leafy substance (later

tested as marijuana), two drug pipe screens, a small bag with marijuana leaves

colored on it, and a capped syringe. Mr. Davidson admitted the marijuana was

his, but not the syringe.

      At sentencing, Mr. Davidson objected to the application of a 2-level

upward adjustment under § 3C1.2 for reckless endangerment during flight,

arguing that a nexus must exist between his flight from the officers and the crime

of conviction, i.e., his escape from the halfway house. The district court rejected

this argument concluding that the Tenth Circuit has never required a nexus under

§ 3C1.2, applied the enhancement, and sentenced Mr. Davidson to 33 months’

imprisonment, the low end of the applicable guidelines range, and three years’

supervised release.



                                     Discussion

      We review the district court’s application of the Guidelines de novo and

any factual findings for clear error. United States v. Wolfe, 435 F.3d 1289, 1295

(10th Cir. 2006). We give due deference to the district court’s application of the

Guidelines to the facts. Id.

      Section 3C1.2 of the Guidelines adjusts a defendant’s offense level upward

two levels “[i]f the defendant recklessly created a substantial risk of death or

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serious bodily injury to another person in the course of fleeing from a law

enforcement officer.” On appeal, Mr. Davidson argues that the district court

erred by not requiring that a nexus exist under § 3C1.2 between his flight from

the officers and his escape from the halfway house. Mr. Davidson argues that

§ 1B1.3 requires that all enhancements applied under Chapter Three of the

Guidelines relate to the offense of conviction. Section 1B1.3(a) provides in

relevant part,

      Unless otherwise specified, . . . adjustments in Chapter Three[] shall be
      determined on the basis of the following:

      (1)(A) all acts and omissions committed, aided, abetted, counseled,
      commanded, induced, procured, or willfully caused by the defendant;

      ...

      that 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.

Mr. Davidson argues that the section refers specifically to the offense of

conviction and requires a nexus with that offense, and that such a nexus is

missing in this case.

      We have previously addressed arguments similar to Mr. Davidson’s on at

least two occasions in unpublished opinions. First, we rejected the argument that

the reckless endangerment must occur during the flight to avoid arrest for the

particular offense of conviction. United States v. Green, No. 98-5256, 2001 WL

50754, *2 (10th Cir. 1999) (unpublished). Instead, the enhancement is simply

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part of the relevant conduct a district court may consider under § 1B1.3 in

determining the appropriate offense level and criminal history. See id. Second,

another unpublished Tenth Circuit case held that a district court did not commit

plain error in concluding that § 3C1.2 does not contain a nexus requirement,

reasoning that even though § 1B1.3 may suggest a nexus, it does not

unequivocally state such a requirement and, at that time, no circuit had required a

nexus. United States v. Weathersby, 89 F. App’x 683, 689 (10th Cir. 2004)

(unpublished).

      Section § 3C1.2 has also received varying treatment by the circuits. The

Ninth Circuit has assumed without deciding that § 3C1.2 requires a nexus

between the crime of conviction and the reckless endangerment. See United

States v. Duran, 37 F.3d 557, 559–60 (9th Cir. 1994). The Sixth Circuit decided

that § 3C1.2 does not require a nexus in an unpublished opinion, United States v.

Lykes, 71 F. App’x 543, 553 n.7 (6th Cir. 2003) (unpublished), but then reversed

itself in a published opinion concluding that the section does have a nexus

requirement, United States v. Dial, 524 F.3d 783, 787 & n.2 (6th Cir. 2008). The

Fifth Circuit has also found a nexus requirement in § 3C1.2. United States v.

Southerland, 405 F.3d 263, 268 (5th Cir. 2005).

      We have doubts whether there is a nexus requirement since reckless

endangerment may simply be part of relevant conduct under § 1B1.3, but we need

not weigh in on the question today. We will assume, without deciding, that

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§ 3C1.2 does require a nexus between the offense of conviction and the flight, and

conclude that plainly there is a nexus between Mr. Davidson’s escape from the

halfway house and his flight from the officers. Mr. Davidson’s offense, escape

from federal custody under § 751(a), is a continuing offense. United States v.

Bailey, 444 U.S. 394, 413 (1980). Because escape is a continuing offense, Mr.

Davidson’s escape “occurred during the commission of the offense of conviction”

as required by § 1B1.3. This conclusion accords with our precedent where we

have held that “escape presents a continuing threat of violence until the escapee is

safely returned to custody.” United States v. Brown, 314 F.3d 1216, 1224 (10th

Cir. 2003).

      Mr. Davidson argues that Brown requires further analysis whether the

offense is sufficiently connected to the escape even after finding the escape to be

continuing. Cf. id. at 1225. However, unlike § 3C1.2, the section at issue in

Brown, § 2K2.1(b)(5) (redesignated as § 2K2.1(b)(6) by the 2006 Amendments to

the Guidelines), contains language requiring a nexus, i.e., the defendant’s use of

the firearm or ammunition must be “in connection with” another felony offense.

Further, Mr. Davidson’s flight “occurred during the commission” of escape and

“in the course of attempting to avoid detection” because he was still in the course

of committing the offense of escape by fleeing from the officers. U.S.S.G. §

1B1.3(a)(1). This outcome is distinguishable from the facts and analysis in

Southerland where the Fifth Circuit specifically noted that “the discrete,

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noncontinuing offense was complete prior to the chase.” 405 F.3d at 268. Mr.

Davidson did not object to any of the factual findings in the presentence report

regarding his flight from the officers across the parking lot. Although counsel

points out that the evidence suggests that Mr. Davidson fled to avoid being

arrested with drugs in possession, while he was high, and while driving a car with

a stolen license plate, the evidence also suggests that he fled to avoid getting

caught, a reason which surely encompasses his escape from federal custody. The

district court did not err in concluding that the enhancement under § 3C1.2 was

proper in this case.

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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