                                                                        FILED
                                                            United States Court of Appeals
                                 PUBLISH                            Tenth Circuit

                UNITED STATES COURT OF APPEALS                     June 26, 2018

                                                               Elisabeth A. Shumaker
                      FOR THE TENTH CIRCUIT                        Clerk of Court
                      _________________________________

UNITED STATES OF AMERICA,

      Plaintiff-Appellee,

v.                                                  No. 17-8059

CLIFFORD J. YOUNG,

      Defendant-Appellant.
                    _________________________________

              Appeal from the United States District Court
                      for the District of Wyoming
                   (D.C. No. 1:17-CR-00051-SWS-1)
                      _________________________________

Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, with him on the briefs), Denver, Colorado, for Defendant-
Appellant.

Jason M. Conder, Assistant United States Attorney (Mark A. Klaassen,
United States Attorney, with him on the brief), Lander, Wyoming, for
Plaintiff-Appellee.
                       _________________________________

Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
                  _________________________________

BACHARACH, Circuit Judge.
                  _________________________________

     This appeal involves a sentencing enhancement imposed after a

federal conviction. At sentencing, the district court enhanced Mr. Clifford

Young’s guideline range for recklessly endangering others while fleeing
from a law-enforcement officer. See U.S. Sentencing Guidelines Manual §

3C1.2 (two-level increase in the offense level). The issue on appeal is

whether the district court’s factual findings sufficed to trigger the

enhancement.

      The facts are largely undisputed. Mr. Young fled from the police.

During the flight, he threatened to shoot if the police took action. They

took action anyway, using “spike strips” to bring Mr. Young’s vehicle to

an eventual stop. But Mr. Young refused to surrender, engaging in an

armed standoff on the side of the highway. This conduct provided an

adequate basis for the enhancement; we therefore affirm.

I.    Background

      The events unfolded when Mr. Young said that he would commit

suicide in front of his ex-girlfriend and began driving toward her house. A

friend alerted police officers, who tried to stop Mr. Young. He fled with

the police in pursuit. Mr. Young did not speed or otherwise drive

recklessly during the chase. But while driving, Mr. Young threatened to

shoot the police if they took action.

      Roughly 40 minutes into the pursuit, the police deployed spike strips

to puncture the tires of Mr. Young’s car. The spike strips worked, and Mr.

Young’s car eventually stopped. But Mr. Young remained in his car for

roughly 4-½ hours before surrendering.



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       Mr. Young was convicted of possessing a firearm as a convicted

felon. See 18 U.S.C. § 922(g)(1). At sentencing, the district court applied

an enhancement for reckless endangerment, concluding that Mr. Young’s

actions had recklessly created a substantial risk of death or injury to

others. See U.S. Sentencing Guidelines Manual § 3C1.2. Mr. Young

appeals the application of this enhancement.

II.    Standard of Review

       The parties disagree over the standard of review. The government

asks us to apply the clear-error standard. See United States v. Brown, 314

F.3d 1216, 1221 (10th Cir. 2003). Mr. Young urges us to engage in de novo

review.

       In his briefing and at oral argument, Mr. Young stressed that he is

not challenging any of the district court’s factual findings; instead, he

accepts the findings of fact and argues solely that the facts are insufficient

as a matter of law to warrant the enhancement. Therefore, we apply de

novo review to Mr. Young’s challenge. See United States v. Hamilton, 587

F.3d 1199, 1222 (10th Cir. 2009) (stating that when a defendant argues that

“the facts found by the district court are insufficient as a matter of law to

warrant an enhancement, we must conduct a de novo review”).

III.   Application of the Reckless-Endangerment Enhancement

       Mr. Young challenges the application of the reckless-endangerment

enhancement. This enhancement applies when a defendant “recklessly

                                       3
create[s] a substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer.” U.S.

Sentencing Guidelines Manual § 3C1.2.

      In finding that the enhancement applied, the district court relied in

part on Mr. Young’s threat to shoot pursuing police officers and refusal to

surrender. While fleeing, Mr. Young told a police dispatcher that “if police

took any action he would return with gunfire” and “he knew officers were

wearing bullet proof vests, but he had hollow point ammunition, and was a

good shot.” R. vol. II, at 40. The court found that

           this threat had recklessly endangered the pursuing officers and

           Mr. Young’s refusal to surrender himself or his weapon during
            the standoff had recklessly endangered pursuing officers. 1

      Mr. Young counters with two arguments:

      1.    Verbal threats cannot constitute reckless endangerment.

      2.    The standoff is immaterial because it did not take place while
            Mr. Young was fleeing.

We reject both arguments.




1
       The district court also relied on other factors, such as Mr. Young’s
flight, the officers’ deployment of spike strips, Mr. Young’s possession of
a firearm, and his statements suggesting an intent to commit “suicide by
cop.” R. vol. III, at 47. We need not address the impact of these factors.

                                      4
      A.    The combination of Mr. Young’s threat and the subsequent
            standoff created a substantial risk of death or serious bodily
            injury to another person.

      Mr. Young’s first argument is that the threat involved only verbal

communication rather than an overt action like brandishing or shooting a

gun. To Mr. Young, the distinction matters because the enhancement is

triggered only if the defendant does something to create a risk rather than

threaten to do something that would create a risk. In light of this

distinction, Mr. Young insists that a threat to shoot would not trigger the

enhancement.

      We agree that the enhancement applies only when a defendant

actually creates a substantial risk. See U.S. Sentencing Guidelines Manual

§ 3C1.2; see also United States v. Bell, 953 F.2d 6, 10 (1st Cir. 1992)

(“Section 3C1.2 punishes the act of creating a risk of death, not merely the

intent to create such a risk.”). The resulting issue is whether Mr. Young’s

threat created a substantial risk of harm when he later engaged in a

standoff with the police.

      The threat created a dangerous situation for the officers as they

pursued Mr. Young. The police were on alert, knowing that he was armed

and had expressed an intention to shoot if they were to take action. They

took action anyway, deploying spike strips. When Mr. Young ran over the

spike strips, losing tire pressure and coming to an eventual halt, the police

had reason to fear grave harm. Mr. Young had already threatened to shoot

                                      5
the police officers if they were to take action, and they had now taken

action. 2

       The danger intensified during the standoff, with the police trying to

coax Mr. Young out of his car. He could have fired at any time, and the

police were presumably aware of their vulnerability. They too could have

shot, fearing that Mr. Young would carry out his threat. And if the police

were to shoot, they could have accidentally shot a fellow police officer.

This risk supports application of the enhancement. See United States v.

McDonald, 521 F.3d 975, 979–80 (8th Cir. 2008) (applying the

enhancement to defendants who had barricaded themselves in a hotel room

for two hours, claimed to have a gun, and threw chairs out of the window);

United States v. Campbell, 42 F.3d 1199, 1205–06 (9th Cir. 1994)

(applying the enhancement to a defendant who armed and barricaded

himself inside a house for twelve hours and threatened to kill officers).

Thus, the combination of the threat and standoff provided sufficient

support for the district court’s determination that Mr. Young had recklessly

endangered another person. 3


2
       Mr. Young questions the existence of evidence that he knew that the
police had used spike strips. But the district court could reasonably infer
that Mr. Young would have learned of the spike strips when they punctured
his tires and stopped his car.
3
      Mr. Young argues that the district court erred in concluding that the
general public had been endangered because the court made no findings
that bystanders were present during the chase. We need not address this
                                       6
     B.     Mr. Young’s standoff with the police occurred “in the
            course of fleeing.”

     Mr. Young also asserts that we cannot consider the armed standoff

because it did not occur “in the course of fleeing from a law enforcement

officer.” U.S. Sentencing Guidelines Manual § 3C1.2. Mr. Young concedes

that he was fleeing while driving on the highway, but he insists that he was

no longer fleeing once his car stopped. Mr. Young reads the guideline too

narrowly.

     The guideline commentary states: “‘During flight’ is to be construed

broadly and includes preparation for flight. Therefore, this adjustment also

is applicable where the conduct occurs in the course of resisting arrest.”

Id. § 3C1.2 cmt. 3. Mr. Young was resisting arrest during the standoff,

disobeying police commands to exit his vehicle.

     Mr. Young argues that the guideline commentary refers only to

attempts to flee and denies that he was attempting to flee during the

standoff. But he has misread the commentary, which encompasses efforts

to resist arrest. Based on this commentary, courts have concluded that

resisting arrest—even without an attempt or preparation to flee—qualifies

as flight from law enforcement. See United States v. McDonald, 521 F.3d

975, 979–80 (8th Cir. 2008) (concluding that the term “during flight”



argument; even if Mr. Young were correct, the risk to pursuing officers
would suffice for the enhancement. See U.S. Sentencing Guidelines Manual
§ 3C1.2 (requiring the creation of a risk of harm to “another person”).
                                      7
applied to defendants who had barricaded themselves in a hotel room);

United States v. Campbell, 42 F.3d 1199, 1205–06 (9th Cir. 1994)

(concluding that the term “during flight” applied to a defendant who had

barricaded himself inside a house and engaged in a twelve-hour armed

standoff with police).

      Like those courts, we conclude that the term “fleeing” is not limited

to an attempt or preparation to flee. We therefore conclude that Mr. Young

was fleeing when he refused to surrender and engaged in a standoff with

police officers.

                                    * * *

      Mr. Young fled from police, refusing to surrender as he drove for

roughly 40 minutes on the highway and engaged in a standoff for roughly

4-½ hours. During that time, Mr. Young informed police that he had a gun

and threatened to shoot if they took any action. And they did take action by

deploying spike strips. Thus, the district court did not err in applying the

sentencing enhancement.

IV.   Conclusion

      We conclude that

           the enhancement was supported by Mr. Young’s threat to shoot
            and his subsequent standoff with the police and

           Mr. Young’s standoff occurred in the course of fleeing from
            police.



                                      8
Therefore, the district court did not err in applying the reckless-

endangerment enhancement.

      Affirmed.




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