                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                           ________________

                                  No. 12-1692
                               ________________

                       UNITED STATES OF AMERICA

                                        v.

                         SHAMAR LANELL BANKS,

                                          Appellant
                               ________________

                   Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                  (D.C. Criminal Action No. 1-11-cr-00002-001)
                 District Judge: Honorable Christopher C. Conner
                                ________________

                   Submitted Under Third Circuit LAR 34.1(a)
                              November 1, 2012


            Before: SLOVITER, AMBRO, and BARRY, Circuit Judges


                         (Opinion filed: January 4, 2013)

                               ________________

                                   OPINION
                               ________________

AMBRO, Circuit Judge
       Shamar Lanell Banks pled guilty to distribution and possession with intent to

distribute cocaine base and hydrochloride in violation of 21 U.S.C. § 841(a)(1). He was

sentenced to 198 months’ imprisonment, and now appeals his sentence. We affirm.

       In July of 2010, York, Pennsylvania police coordinated a controlled drug purchase

between Banks and an unidentified cooperating source. The purchase was to take place

near McKinley Elementary School on the corner of Manor and Kurtz Streets in York.

Banks arrived by car at approximately 7:00 p.m. and pulled up next to the source, who

was seated in his own car on the designated corner. Banks chose to move the meeting

location south on Manor Street in the direction of Springettsbury Avenue and York

College.

       While Banks was traveling to this new location, Detective Scott Nadzom and

Officer Hower believed Banks observed them in their unmarked vehicle. Detective

Nadzom advised assisting traffic units to stop and arrest Banks.

       When Banks made a left-hand turn onto Springettsbury Avenue, multiple marked

and unmarked traffic units began their pursuit. Among those units was Sergeant John

Veater, who had both his lights and siren activated. Banks did not stop his car, proceeded

to drive at a rate of 40 to 50 miles-per-hour in a 25 mile-per-hour residential zone, and

failed to stop for five posted stop signs. The chase continued through at least eight

residential blocks, including those with limited visibility among row houses and bumper-

to-bumper parking lining both sides of the street. Banks then abandoned his car and fled

on foot. Indeed, he evaded arrest until October of 2010.


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       In July of 2011, Banks pled guilty to distribution and possession with intent to

distribute cocaine base and hydrochloride. The District Court held a sentencing hearing

at which Banks contested the applicability of a two-level enhancement under United

States Sentencing Guideline § 3C1.2 for reckless endangerment while fleeing from the

police. Detective Nadzom and Sergeant Veater testified at that hearing in support of the

§ 3C1.2 enhancement. The District Court determined that the enhancement was

warranted. Banks appealed, and raises one issue: whether his sentence is procedurally

unreasonable because the District Court erred in applying the two-level enhancement

under § 3C1.2.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

appellate jurisdiction under 28 U.S.C. § 1291.

       Banks asserts that the District Court committed a procedural error by applying a

two-level enhancement for reckless endangerment during flight under U.S.S.G. § 3C1.2

because his actions would otherwise be considered minor traffic violations. Section

3C1.2 applies when “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. A district court must find all facts by a preponderance of the

evidence. United States v. Grier, 475 F.3d 556, 568 (3d Cir. 2007) (en banc). With

respect to the application of § 3C1.2, a district court must find that the defendant acted

recklessly and that the action created a substantial risk of death or serious bodily injury.

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

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risk constituted a gross deviation from the standard of care that a reasonable person

would exercise in such a situation.” U.S.S.G. §§ 3C1.2 cmt. n.2, 2A1.4 cmt. n.1.

       Banks drove his car at twice the legal speed limit on a residential street and

disregarded posted stop signs. That neighborhood was in close proximity to an

elementary school, college, public park, and commercial district where pedestrian traffic

is common. The close quarters of the row houses that line the streets, and the bumper-to-

bumper parking on both sides of the road, limit sightlines and reduce awareness of

pedestrian presence. Although Banks did not strike or nearly strike bystanders or

vehicles, direct instances of harm are not relevant to a determination of a “substantial risk

of death or serious bodily injury.” U.S.S.G. § 3C1.2 (emphasis added).

       Speeding, running stop signs, and leading police in a pursuit through a residential

area created the risk and recklessness that the District Court found in applying § 3C1.2.

This is sufficient to warrant an enhancement. United States v. Frazier, 981 F.2d 92, 96

(3d Cir. 1992). In this context, the District Court’s imposition of a two-level

enhancement under § 3C1.2 is hardly in error. We thus affirm Banks’s sentence.




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