                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2039
                                   ___________

United States of America,               *
                                        *
                      Appellee,         *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Odell Hampton, Jr.,                     *
                                        *
                      Appellant.        *
                                   ___________

                             Submitted: September 10, 2003

                                   Filed: October 10, 2003
                                    ___________

Before LOKEN, Chief Judge, HEANEY and RICHARD S. ARNOLD, Circuit
      Judges.
                            ___________

HEANEY, Circuit Judge.

       This is an appeal from the district court’s application of the United States
Sentencing Guidelines. Odell Hampton, Jr., pled guilty to one count of being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
district court applied a three-level enhancement pursuant to United States Sentencing
Guideline § 3A1.2, resulting in a sentencing range of 100-125 months. The district
court sentenced Hampton to 120 months imprisonment, the statutory maximum for
his offense. Because the § 3A1.2 enhancement was not supported by record
evidence, we reverse and remand for resentencing.

       On June 15, 2002, Odell Hampton, Jr. and Ronald Williams were seen by
Kansas City, Missouri police officers sitting in a vehicle outside the police station.
Because Hampton, the driver, and Williams remained stopped for a long period of
time, the officers became suspicious. An inspection of the vehicle’s license plates
revealed that they were registered to a different vehicle, so officers approached the
vehicle. Hampton then tried to elude the police, leading them on an extended chase
during which he drove in excess of ninety miles per hour. Eventually, an officer
placed “stop sticks”–something apparently designed to incapacitate a moving
vehicle–on the roadway in front of Hampton’s vehicle. Hampton lost control of his
vehicle, which struck and seriously injured a Kansas City police officer before
crashing into a utility pole. After Hampton was removed from the vehicle, police
recovered a handgun and other contraband.1

       Hampton was indicted in district court for being a felon in possession of a
firearm. He pled guilty as charged, without the benefit of a plea agreement. Due to
the injury sustained by the police officer during the car chase, the district court
enhanced Hampton’s sentence pursuant to United States Sentencing Guideline §
3A1.2.

       We review de novo a district court’s application of the Sentencing Guidelines.
United States v. Smotherman, 285 F.3d 1115, 1116 (8th Cir. 2002). Section 3A1.2
mandates that the district court should increase a defendant’s offense level by three
levels if, inter alia, “in a manner creating a substantial risk of serious bodily injury,
the defendant . . . knowing or having reasonable cause to believe that a person was


      1
       This contraband included marijuana, crack cocaine, and other unidentified
substances that are the subject of state charges pending against Hampton.

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a law enforcement officer, assaulted such officer during the course of the offense or
immediate flight therefrom.” USSG § 3A1.2(b)(1). Related commentary specifies
that this portion of the guideline is meant to apply “in circumstances tantamount to
aggravated assault.” USSG § 3A1.2, comment. (n.4(a)).

       The government presented no evidence to support the enhancement except the
presentence investigation report (PSR) prepared by the probation office. The PSR
indicates that Hampton hit the officer after he lost control of his vehicle. We cannot
conclude from this evidence that Hampton intended to hit anyone, let alone a law
enforcement officer. Moreover, we disagree with the district court that the
enhancement should apply because the crash was a foreseeable consequence of the
high-speed chase. Rather, the government must prove that 1) the defendant engaged
in action akin to aggravated assault, and 2) the defendant had reason to believe the
intended and actual victim was a law enforcement officer. USSG § 3A1.2(b)(1);
accord United States v. Castillo, 924 F.2d 1227, 1236 (2d Cir. 1991) (holding that an
enhancement under § 3A1.2 cannot apply absent evidence that defendant knew or had
reasonable cause to believe victim was a law enforcement officer). In this case, the
meager evidence presented by the government actually points to the opposite
conclusion since Hampton’s vehicle was out of his control when it struck the officer.

       Hampton clearly engaged in reckless conduct that created a substantial risk of
harm to others. Section 3A1.2, however, does not apply where the defendant engages
in reckless behavior. Thus, while an enhancement may have been appropriate under
another section of the Guidelines, see USSG § 3C1.2 (“If 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, increase by 2 levels.”), the
government has simply not shown that a three level enhancement under § 3A1.2 was
appropriate. Accordingly, we reverse that enhancement and remand for resentencing.
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