In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1735

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL C. O’BRIEN,

Defendant-Appellant.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 CR 179--Lynn Adelman, Judge.


Argued October 26, 2000--Decided January 23, 2001



  Before Bauer, Posner, and Ripple, Circuit Judges.

  Bauer, Circuit Judge. Michael O’Brien appeals
his sentence of 41 months incarceration for
involuntary manslaughter under 18 U.S.C. sec.sec.
1112, 1152, 1153 and Wis. Stat. sec. 343.44(1),
arguing that the district court erred by finding
his conduct "reckless" under U.S.S.G. sec. 2A1.4
and by calculating his sentence accordingly. We
affirm.

BACKGROUND

  O’Brien was involved in a traffic accident
which claimed two lives. The accident occurred on
a hilly, two-laned portion of Wisconsin State
Highway 55 on the Menominee Indian Reservation.
George Howlett, a witness to the accident,
reported to a Menominee Tribal Police sheriff at
the scene that he had been driving up a hill at
approximately fifty miles per hour on Highway 55
when the van driven by O’Brien began to pass him
in the oncoming traffic lane. When Howlett
reached the crest of the hill, he saw O’Brien’s
van and another car spinning after impact.
Immediately before the collision, O’Brien’s van
was in the lane for oncoming traffic heading
straight for the other car, which was traveling
in the opposite direction in the same lane. In an
attempt to avoid the accident, both vehicles
swerved toward a ditch on the near side of the
road where they collided head-on. The occupants
of the other car, Bernard and Elaine Sanapaw,
died from injuries they sustained in the
accident. O’Brien’s child and girlfriend were
passengers in O’Brien’s van, and both were
injured.

  A blood alcohol test administered approximately
an hour and a half after the accident registered
O’Brien’s blood-alcohol level at .053, which is
within the legal limit in Wisconsin. None of the
police officers at the accident scene put O’Brien
through any field sobriety tests. The government
has not charged O’Brien with driving under the
influence of alcohol, nor does it argue that
O’Brien’s blood alcohol was over the legal limit
when the accident occurred.

  Prior to the accident, O’Brien’s Wisconsin
driving privileges had been revoked. O’Brien had
previously been convicted for leaving the scene
of another accident, and twice for driving under
the influence of alcohol. In addition, he had
received multiple citations for operating a motor
vehicle after his license had been revoked, which
is a non-felony offense in Wisconsin.

  O’Brien was charged with two counts of
involuntary manslaughter under 18 U.S.C. sec.sec.
1112, 1152, and 1153. Specifically, the
indictment charged him with causing the death of
another during the commission of an unlawful act
not amounting to a felony, the unlawful act being
operating a motor vehicle after revocation of
license in violation of Wis. Stat. sec.
343.44(1). O’Brien reached an agreement with the
government to plead guilty to the charge in
exchange for the government’s recommendation that
the court apply the Sentencing Guideline
calculation consistent with "acceptance of
responsibility." However, as part of his plea
agreement, O’Brien acknowledged that the
government would ask the court to find that his
actions were "reckless" (as opposed to
"criminally negligent"). Under U.S.S.G. sec.
2A1.4, a conviction for involuntary manslaughter
involving reckless conduct carries a base offense
level of 14, while a conviction involving
criminally negligent conduct carries a base
offense level of 10. The Presentence Report
recommended that the court impose two sentences
of 33-41 months incarceration to be served
concurrently, based upon its guideline
calculation of a base offense level of 13, and a
criminal history category of VI. O’Brien objected
to this recommendation, arguing that his conduct
was criminally negligent but not reckless, and
that therefore his base offense level should be
10, and that an appropriate sentence would be 24-
30 months. Finding that O’Brien’s conduct was
reckless, the court adopted the guideline
calculations and sentence recommendations of the
Presentence Report,/1 and sentenced O’Brien to
two concurrent sentences of 41 months. This
appeal followed.


DISCUSSION

  The sole issue presented for review is whether
the district court erred by classifying O’Brien’s
conduct as "reckless" as opposed to "criminally
negligent," and by calculating his sentence
accordingly under U.S.S.G. sec. 2A1.4. A
sentencing court’s determination that a
defendant’s actions were reckless is a finding of
fact which we review for clear error. See United
States v. Jenny, 7 F.3d 953, 956 (10th Cir.
1993); cf. United States v. Chandler, 12 F.3d
1427, 1433 (7th Cir. 1994); United States v.
Luna, 21 F.3d 874, 884, 885 (9th Cir. 1994). We
may reverse such a factual finding only if "after
considering all of the evidence, [we are] left
with the definite and firm conviction that a
mistake has been committed." United States v.
Szakacs, 212 F.3d 344, 347 (7th Cir. 2000)
(quotation omitted). A district court’s choice
between two permissible inferences from the
evidence cannot be clearly erroneous. Anderson v.
Bessemer City, N.C., 470 U.S. 564, 574 (1985);
United States v. Bush, 79 F.3d 64, 66 (7th Cir.
1996).

  U.S.S.G. sec. 2A1.4 prescribes the appropriate
sentencing ranges for defendants convicted of
involuntary manslaughter under 18 U.S.C. sec.
1112. It provides that involuntary manslaughter
carries a base offense level of 10 when the
conduct is criminally negligent, and a base
offense level of 14 when it is reckless.
Application Note 1 to sec. 2A1.4 defines
"reckless" 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 risk constituted a gross deviation
from the standard of care that a reasonable
person would exercise in such a situation. The
term thus includes all, or nearly all,
convictions for involuntary manslaughter under 18
U.S.C. sec. 1112. A homicide resulting from
driving, or similarly dangerous actions, while
under the influence of alcohol or drugs
ordinarily should be treated as reckless.
U.S.S.G. sec. 2A1.4. (emphasis added).

Application Note 2 defines "criminally negligent"
as:

. . . conduct that involves a gross deviation
from the standard of care that a reasonable
person would exercise under the circumstances,
but which is not reckless. . . . U.S.S.G. sec.
2A1.4.

  In determining that O’Brien’s conduct was
"reckless," the district court relied on three
factors in combination: (1) O’Brien was driving
without a valid license, (2) with a blood alcohol
level of .05 or greater, and (3) he passed a
slow-moving vehicle in a no-passing zone while
driving up a hill. While it acknowledged that, as
a legal matter, "it is not the easiest thing in
the world to distinguish between negligent and
reckless," the court found that the three
factors, when considered together, justified the
conclusion that O’Brien’s conduct was reckless.
The court noted that since O’Brien was driving
without a license and with some alcohol in his
system, he should not have "take[n] any chances."
The fact that O’Brien made a dangerous passing
maneuver on a hill while driving with his child
and girlfriend in the van, instead of applying
the heightened degree of caution appropriate
under these circumstances, led the court to find
that his actions were reckless. As further
support for its conclusion, the district court
stated that "[i]t’s not that Mr. O’Brien is not
familiar with what’s safe and what’s not safe on
the road. He’s been involved in a lot of traffic
issues in the past."

  O’Brien raises several arguments in support of
his contention that his conduct was merely
negligent. First, he points out that he was
charged with causing two deaths while driving
without a valid license, and not with causing the
deaths while driving under the influence of
alcohol. He notes that there is no evidence that
he was driving while intoxicated, and that the
blood tests performed on him showed that he was
not over Wisconsin’s legal limit for alcohol
consumption at the time of the accident. Thus, he
contends that "this offense may not even have
been charged but for the fact that [he] did not
have his license at the time of the driving," and
argues that driving without a license is in
itself an innocuous offense which is not
inherently dangerous and which is at most
criminally negligent. He claims that U.S.S.G.
sec. 2A1.4 contemplates homicides caused by
driving under the influence as the typical (or
"heartland") case of "reckless" involuntary
manslaughter, and maintains that because his
offense falls outside of that category, he should
not have been sentenced for reckless conduct.

  This argument fails for two reasons. First it
is based on the faulty premise that sec. 2A1.4
denominates homicides caused by driving as
"reckless" only when they involve a charge of
driving under the influence of alcohol or drugs.
Such a conclusion cannot be reconciled with the
plain language of Application Note 1, which
states that the term "reckless" "includes all or
nearly all convictions for involuntary
manslaughter under 18 U.S.C. sec. 1112," and
which draws no distinction between drunken
driving offenses and other types of involuntary
manslaughter. O’Brien makes much of the fact that
the Application Note states that "[a] homicide
resulting from driving, or similarly dangerous
actions, while under the influence of alcohol or
drugs ordinarily should be treated as reckless,"
and concludes from this that his offense should
not be considered reckless as it did not involve
a charge of driving under the influence. However,
to say that homicides caused by driving under the
influence are ordinarily reckless is not to say
that homicides caused by other types of imprudent
driving are ordinarily not reckless. Put another
way, a charge of driving under the influence is
not a prerequisite for recklessness under
U.S.S.G. sec. 2A1.4. In addition, O’Brien’s claim
that the mere act of driving without a valid
license is a relatively innocuous offense, while
perhaps true as an abstract matter, is of no help
to him in this case. The district court did not
find that O’Brien acted recklessly merely by
driving without a license. Rather, it found that
the manner of his driving without a license in
this particular case (i.e. his act of passing in
a no-passing zone while driving uphill with some
alcohol in his system) was reckless. O’Brien was
not charged merely with driving after the
revocation of his license, but with causing
deaths while doing so. As such, any aspect of
O’Brien’s conduct which contributed to the fatal
accident is relevant to the determination of
recklessness.

  Turning to the factual basis for the district
court’s finding of recklessness, we note that the
court would not have committed clear error even
if it had based its finding strictly upon
O’Brien’s act of passing in a no-passing zone
while driving uphill. Section 2A1.4 provides that
an offender acts recklessly when he is "aware of
the risk created by his conduct" yet disregards
the risk, and where such disregard constitutes a
"gross deviation from the standard of care that
a reasonable person would exercise" in the
situation. The act of passing in the lane for
oncoming traffic while at or near the crest of a
hill, where it is impossible to know whether
another car is approaching in the same lane,
strikes us as the very height of recklessness. It
is difficult to imagine how such a near-suicidal
maneuver could be characterized as anything other
than a reckless and gross deviation from any
reasonable standard of care. See generally United
States v. Emerson, 128 F.3d 557, 564 (7th Cir.
1997) (upholding district court’s enhancement for
reckless endangerment during flight under
U.S.S.G. sec. 3C1.2 where, inter alia, the
defendant had engaged in high-speed passing
maneuvers while attempting to evade pursuit).
Indeed, courts have found far less dangerous
conduct to be "reckless" under U.S.S.G. sec.
2A1.4. See, e.g., Luna, 21 F.3d at 885 (upholding
district court’s determination that the act of
abandoning a running car in a residential area is
reckless under sec. 2A1.4). Moreover, as an
experienced driver, O’Brien cannot reasonably
claim that he was unaware of the serious risks
involved in executing such a maneuver. While he
concedes that his decision to pass Howlett on the
hill was a "poor" one which posed a threat to
others, O’Brien argues that it did not amount to
recklessness because (1) it did not pose a threat
of the degree where "one would immediately see
the inherent danger and imminent peril it put
others in," and (2) he attempted to avoid the
accident at the last minute by turning off the
road into the ditch. Pursuant to our reasoning
above, we reject O’Brien’s first claim out of
hand. His second claim is unavailing as well,
because the relevant action at issue was
O’Brien’s decision to pass while driving up a
hill, not his subsequent, desperate attempt to
avoid the accident. By engaging in the reckless
passing maneuver, O’Brien knowingly took the risk
that he might end up in the position of having to
choose between colliding with another car and
driving off the road at a high speed. Each of
these options posed a serious risk to his
passengers and to other drivers, and the fact
that he chose the safer one does not diminish the
recklessness of the original action which created
the risk and forced the choice. In short, while
taking evasive measures might tend to show that
O’Brien did not intentionally collide with the
Sanapaws’ car, it does not show that his original
decision to pass was not reckless.

  Based on its consideration of O’Brien’s act of
passing on a hill alone and without regard to the
other factors that the court considered, we hold
that the district court did not commit clear
error in finding that O’Brien acted recklessly
under sec. 2A1.4. More than that, we agree
wholeheartedly with the finding.

  Moreover, other factors present in this case
compounded the recklessness of O’Brien’s act, and
the court’s consideration of them reinforces its
conclusion. As the court noted, O’Brien had been
drinking prior to the accident, he was driving on
a revoked license, and he had "traffic issues in
the past" (to wit, he had been involved in a
prior accident, had several prior convictions for
driving under the influence, and had multiple
prior citations for driving after his license had
been revoked). As the district court noted, the
consumption of even a small amount of alcohol
might adversely effect a driver’s reflexes, and
a driver should exercise extra care when driving
after drinking. Even though he had not consumed
enough alcohol to put him over the legal limit,
the fact that O’Brien had been drinking at all
made his decision to pass on the hill all the
more reckless. O’Brien takes great pains to
establish that he was not "driving under the
influence" under Wisconsin law, and that the
district court erroneously disregarded this by
taking his drinking into account in making its
finding of recklessness. However, the court did
not find that O’Brien was "driving under the
influence" under any legal standard, nor did it
need to do so in order to consider O’Brien’s
drinking as a relevant factor contributing to his
recklessness./2

  Finally, O’Brien contends that his traffic
history has nothing to do with whether he acted
recklessly on the instant occasion, and that
therefore the district court should not have
considered it. However, a defendant’s prior
experiences (including prior bad acts committed
while under the influence of alcohol) are
relevant and may be considered by a sentencing
court in making a determination of recklessness
insofar as they serve to put the defendant on
notice regarding the nature and potential
consequences of a risk that he later undertakes.
See Jenny, 7 F.3d at 956-57 (upholding district
court’s finding that defendant airline passenger
had acted "recklessly" within the meaning of sec.
2A1.4 where defendant--who had been arrested on
prior occasions for engaging in violent or
abusive behavior while intoxicated--had acted
abusively to others on the plane after consuming
alcohol, and concluding that defendant’s previous
experiences with alcohol made it foreseeable that
he might act abusively after drinking on the
airplane). O’Brien’s prior experiences with
traffic accidents and with driving under the
influence were relevant to the recklessness
inquiry because they made O’Brien aware of the
potentially harmful consequences of driving
unsafely, particularly when alcohol is involved.
In addition, they made it foreseeable to O’Brien
that he might drive recklessly after consuming
alcohol. Thus, we hold that it was not improper
for the district court to consider O’Brien’s
prior "traffic issues" in finding that his
conduct was reckless.

CONCLUSION
  We hold that the district court did not err in
concluding that O’Brien acted recklessly, or in
calculating his sentence pursuant to the
heightened base offense level applicable to
reckless involuntary manslaughter under U.S.S.G.
sec. 2A1.4. We have considered O’Brien’s other
arguments, and find them meritless. Therefore, we
AFFIRM the judgment and sentence of the district
court.



/1 It is unclear from the record why both the court
and the Presentence Report calculated O’Brien’s
base offense level at 13 rather than 14, given
that both found his conduct to be reckless. It is
possible that the Presentence Report recommended
a one level decrease in offense level for
acceptance of responsibility, pursuant to the
plea agreement. However, what is clear (and what
is important for our purposes) is that the court
rejected O’Brien’s arguments that his conduct was
criminally negligent and that his base offense
level should therefore be 10, and it applied a
higher base offense level because it found that
his conduct was reckless.

/2 O’Brien also argues that the fact that he was
driving on a revoked license, standing alone, did
not in any way increase the risk that his driving
created for others, and therefore that the court
was wrong to consider this as one of three
factors tending to show recklessness. However,
while at times the court appears to have taken
this as an independent factor, at other times it
seemed to consider O’Brien’s driving without a
valid license (along with his checkered driving
history) as evidence that O’Brien was well
acquainted with the consequences of unsafe
driving. Considering his driving without a valid
license for such a purpose would not be improper.
Moreover, even if the court erroneously
considered this as a separate factor, such an
error would be harmless, considering that
O’Brien’s passing maneuver alone would justify
the court’s finding of recklessness.
