                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-1237
                         ___________________________

                             United States of America,

                        lllllllllllllllllllll Plaintiff - Appellee,

                                            v.

                            Michael Joseph McMahan,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                   for the Northern District of Iowa - Ft. Dodge
                                  ____________

                            Submitted: October 10, 2014
                               Filed: April 10, 2015
                                  ____________

Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

     Michael Joseph McMahan pleaded guilty to conspiracy to distribute
methamphetamine. The district court1 sentenced him to 196 months’ imprisonment.
McMahan appeals his sentence, arguing that the district court erred by increasing his

      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
offense level under the sentencing guidelines based on a finding of reckless
endangerment during flight. We conclude that the increase was warranted, and
therefore affirm.

       On July 24, 2013, law enforcement officers received information that
McMahan was part of a methamphetamine distribution conspiracy that was bringing
drugs from Minnesota to Iowa for resale. The next day, an officer observed
McMahan driving a red vehicle, and the officer called for a marked patrol unit to stop
the car. The unit attempted to make a traffic stop, but McMahan drove off at a high
rate of speed, first down a road and then down an alley. According to one officer,
McMahan was “going down alleys so fast that [the pursuing officer] couldn’t see
because of the huge dust cloud.”

      McMahan eventually pulled into a driveway, abandoned his car, and fled on
foot. He fled through backyards and over three fences, and a witness observed him
enter a private home. Nobody was home when McMahan entered, but the
homeowner later told police that he did not know McMahan and did not give him
permission to enter the home. Officers entered the house and located McMahan in
the basement, where he surrendered.

       McMahan pleaded guilty to one count of conspiracy to distribute
methamphetamine. See 21 U.S.C. § 846. At sentencing, in calculating the advisory
sentencing guideline range, the district court applied a two-level increase under
USSG § 3C1.2 for reckless endangerment during flight. As a result, the court
determined a total offense level of 35, along with a criminal history category of V,
and an advisory guideline range of 262 to 327 months’ imprisonment. The court then
departed downward from the advisory range for reasons unrelated to the reckless
endangerment and sentenced McMahan to 196 months’ imprisonment. The court
stated alternatively that if it erred in applying the two-level increase for reckless



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endangerment during flight, the court would have imposed the same sentence based
on its authority under 18 U.S.C. § 3553(a).

       McMahan challenges the district court’s application of § 3C1.2. This guideline
provides for a two-level increase 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.” We review the district court’s factual findings for clear
error. United States v. Silva, 630 F.3d 754, 756 (8th Cir. 2011).

       The district court determined that two aspects of McMahan’s flight
independently justified the increase. The court cited McMahan’s acceleration in an
alley, which generated a cloud of dust that obstructed the pursuing officer’s vision
and created a risk to others. The court also relied on McMahan’s entering a private
home in an effort to evade police. McMahan contends that neither circumstance was
sufficient to show that he created a substantial risk of death or serious bodily injury
to another person.

       We agree with the district court that McMahan’s uninvited entry into a private
home created a substantial risk of serious bodily injury to another person that was
sufficient to justify the increase under § 3C1.2. McMahan’s entry, like a traditional
burglary, creates “the possibility of a face-to-face confrontation between the burglar
and a third party—whether an occupant, a police officer, or a bystander—who comes
to investigate.” James v. United States, 550 U.S. 192, 203 (2007). Although the
homeowner was not present when McMahan entered the residence, the presence of
an uninvited stranger in a home creates a substantial risk of violent confrontation
leading to serious injury when the resident returns home or another party enters to
investigate. United States v. Carter, 601 F.3d 252, 255-56 (4th Cir. 2010). We
therefore conclude that the district court properly applied § 3C1.2, and there was no
procedural error in imposing sentence.



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The judgment of the district court is affirmed.
               ______________________________




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