                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                        DEC 15 1997
                  UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                            Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.

 ANTHONY DEAN CONLEY,

       Defendant-Appellant.                            No. 96-3255



 UNITED STATES OF AMERICA,                             No. 96-3256

      Plaintiff-Appellee,

 v.

 ALEX TRAVIS SCOTT,

      Defendant/Appellant.


                 Appeal from the United States District Court
                              for the D. Kansas
                    (D.C. Nos. 96-10013-03/ 96-10013-02)


Steven K. Gradert, Assistant Federal Public Defender, Wichita, Kansas (David J.
Phillips, Federal Public Defender, Wichita, Kansas with him on the briefs) for
Defendant-Appellant Anthony D. Conley.

Jeff Griffith, Derby, Kansas for Defendant Appellant Alex T. Scott.
Michael G. Christensen, Assistant United States Attorney, Wichita, Kansas
(Jackie N. Williams, United States Attorney, Wichita, Kansas with him on the
briefs) for Plaintiff-Appellee United States.


Before EBEL, LOGAN and BRISCOE, Circuit Judges.


EBEL, Circuit Judge.


      Appellants Alex T. Scott (“Scott”) and Anthony D. Conley (“Conley”)

(collectively “Appellants”) pled guilty to charges of bank robbery and using or

carrying a firearm during a crime of violence. At sentencing, each received a two-

point enhancement of his respective offense level under § 3C1.2 of the Sentencing

Guidelines for reckless endangerment during flight, based on Appellants’

participation in a high-speed chase following the robbery. Appellants appeal the

enhancement, asserting that their post-robbery flight did not constitute reckless

endangerment. To the extent that their flight did constitute reckless

endangerment, Appellants assert that they cannot be held responsible because they

did not drive the getaway car.

      Because the district court did not err in finding that the getaway and

Appellants’ role in aiding and abetting and causing the getaway rose to the level

of reckless endangerment under the Guidelines, we affirm the court’s

enhancement of Appellants’ base offense levels.



                                        -2-
                                BACKGROUND

      On the morning of January 23, 1996, Appellants positioned themselves near

the rear employees’ entrance of the Missouri Pacific and Industrial Credit Union

in Coffeyville, Kansas. When two employees arrived for work, Appellants forced

them, at gunpoint, to let Appellants into the Credit Union. Appellants took over

$40,000 in cash as well as two employees’ purses. Appellants then ran to a

waiting late-model sport utility vehicle driven by co-defendant Michael Iles

(“Iles”). Appellant Scott sat in the front passenger seat, and Appellant Conley in

the rear passenger seat. The car quickly left the scene.

      Montgomery County Deputy Mark Shuler was on patrol a few miles from

the crime scene. He spotted a vehicle matching the description of the one reported

to be occupied by the Appellants. At the time Deputy Shuler spotted it, the

vehicle was proceeding at a normal speed. Deputy Shuler followed the vehicle,

turned on his emergency lights, and the vehicle pulled over. As Deputy Shuler

began to exit his patrol car, the defendants’ vehicle sped off. Deputy Shuler gave

chase. The result was a high-speed pursuit, reaching speeds of up to 100 m.p.h.,

along a road that was both icy and damp.

      During the course of the chase, Appellants’ vehicle encountered two

“rolling roadblocks” that had been set up by other police officers. Iles sped past

the first roadblock. At the second rolling roadblock, the blocking police officer


                                        -3-
swerved from side to side each time Iles tried to pass on one side or the other. At

one point when oncoming civilian traffic precluded the police officer from

swerving, Iles sped up and drove toward the officer’s car, forcing him to move

out of the way to avoid collision. According to the officer’s testimony, this

occurred at 45-50 m.p.h. The three co-defendants were eventually apprehended at

a stationary “blockade” roadblock.

      Appellants pled guilty to bank robbery, in violation of 18 U.S.C. § 2113(a)

& (d) and 18 U.S.C. § 2. Appellants also pled guilty to using or carrying a

firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1). Iles, the

driver of the getaway vehicle, was acquitted by a jury of all charges. At

Appellants’ sentencing, the district court enhanced Appellants’ base offense level

by two points for reckless endangerment during flight pursuant to U.S.S.G.

§ 3C1.2. In making its finding the district court relied on evidence presented at

Iles’ trial as well as on information contained in Appellants’ Presentence Reports.

Each Appellant was ultimately sentenced to 108 months incarceration. Appellants

appeal the two-level enhancement imposed by the district court for reckless

endangerment during flight.




                                        -4-
                                ANALYSIS

      We review for clear error both the district court’s determination that

Appellants’ post-robbery flight constituted reckless endangerment, and its

determination that Appellants were responsible for that recklessness. See United

States v. Burdex, 100 F.3d 882, 884 (10th Cir. 1996). The government bears the

burden of proving factors enhancing a sentence by a preponderance of the

evidence. See United States v. Rice, 52 F.3d 843, 848 (10th Cir. 1995). Evidence

underlying a district court’s sentence is reviewed by viewing the evidence, and

inferences drawn therefrom, in the light most favorable to the district court’s

determination. See United States v. Cruz, 58 F.3d 550, 553 (10th Cir. 1995).

A. Reckless Endangerment


      Section 3C1.2 of the Sentencing Guidelines provides that “[i]f 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.” U.S.S.G. § 3C1.2. For purposes of this enhancement, “reckless” is

defined in the same way as it is defined for involuntary manslaughter. U.S.S.G.

§ 3C1.2., comment. (n.2). The definition of involuntary manslaughter provides in

relevant part:




                                        -5-
      “Reckless” refers to 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.

U.S.S.G. § 2A1.4, comment. (n.1). We note that the standard of care envisioned

by the Guidelines is that of the reasonable person, not the reasonable fleeing

criminal suspect.

      The evidence before the court reveals that the defendants engaged in a

high-speed car chase with law enforcement officials on an icy road, passed two

rolling road blocks, and attempted to ram a police officer’s vehicle. These

actions involve a known risk of danger to others, and constituted a gross deviation

from the standard of care that a reasonable person would have exercised in that

same situation. See United States v. Gonzales, 71 F.3d 819, 836-37 (11th Cir.

1996) (§ 3C1.2 enhancement justified where defendant operated his vehicle, in

reverse, at a high rate of speed on a residential street); United States v. Woody,

55 F.3d 1257, 1262,1274 (7th Cir. 1995) (enhancement justified where defendant

evaded police at high speeds in addition to driving over a curb and causing one

officer to dive out of the way); United States v. Chandler, 12 F.3d 1427, 1433

(7th Cir. 1994) (speeding and swerving through a residential area constitutes

reckless endangerment); United States v. Sykes, 4 F.3d 697, 700 (8th Cir. 1993)




                                         -6-
(failing to pull over and requiring police officials to force defendant’s car off the

road suffices to constitute reckless endangerment).

        Not every flight from a crime scene, of course, will constitute reckless

endangerment under § 3C1.2. There are situations in which a defendant might

flee from law enforcement officers in a manner that does not recklessly endanger

others. However, the facts of this flight clearly establish reckless endangerment.

      Appellants argue that without some evidence of imminent danger of injury

or death the district court could not find reckless endangerment. The speeds

involved, the icy and wet condition of the roads at the time, as well as the

apparent threat to ram one patrol car amount to gross deviation from the standard

of care a reasonable person would have exercised in that situation.

The district court’s finding that Appellants’ flight amounted to reckless

endangerment was not clearly erroneous.



B. Passenger Responsibility for Driver’s Reckless Endangerment


      Although it is undisputed that Iles, and not Appellants, drove the getaway

car during the high-speed chase following the robbery, the district court

nonetheless held the Appellants responsible for Iles’ reckless driving. Appellants

argue that because they were mere passengers during the getaway, they cannot be

held liable for Iles’ recklessness.

                                         -7-
         Section 3C1.2 holds a fleeing defendant responsible for the reckless

conduct of others only if he “aided or abetted, counseled, commanded, induced,

procured, or willfully caused” that conduct. U.S.S.G. § 3C1.2 comment. (n.5).

The sentencing court must make a specific finding, based on the record before it,

that the defendant actively caused or procured the reckless behavior at issue. See

United States v. Young, 33 F.3d 31, 33 (9th Cir. 1994) (“Not every escape

escalates into reckless endangerment during flight . . . . [A]fter the Government’s

presentation of evidence supporting a section 3C1.2 enhancement, the district

court must specify in the record its reasons for holding the passengers responsible

for the driver’s conduct.”).

         Mere reasonable foreseeability of the reckless behavior at issue is not

enough by itself to support a § 3C1.2 enhancement. See United States v. Lipsey,

62 F.3d 1134, 1136-37 (9th Cir. 1995) (rejecting § 3C1.2 enhancement where

district court relied solely on reasonable foreseeability of high-speed getaway by

defendant-passenger who engaged in armed bank robbery with co-defendant-

driver). However, an enhancement for reckless endangerment “may be based on

conduct occurring before, during, or after [a] high-speed chase.” Young, 33 F.3d

at 33.




                                           -8-
      At Appellants’ sentencing hearing the district court found that by planning

a bank robbery that involved firearms, bank employees, and a waiting escape car,

the Appellants were responsible for Iles’ reckless behavior during the getaway. 1

      During the trial of Iles, a number of witnesses testified as to the behavior

and ultimate capture of the getaway car. A witness who worked at a business near

the Credit Union observed the getaway car waiting with its motor running, and

testified that she heard “stones fly” as the car quickly left the building’s gravel

parking lot. Police officers involved in the ensuing chase testified that the car

attained speeds of up to 100 miles an hour, that it passed one rolling road block

then threatened to ram a police car in order to gain passage. The officers offered

evidence that the second pass occurred within sight of civilian traffic. The

officers also testified that road conditions were dangerously slick.




      1
          The getaway driver, Iles, testified during his trial that he was an unwitting
participant in the robbery and that his conduct in driving the getaway car was coerced
by the Appellants. Iles testified that while both Scott and Conley were armed, he was
not, and that Scott held a gun to his head and told him what to do. He also testified that
when Scott and Conley came running out of the bank he offered to surrender the car to
them, in response to which Scott ordered him to drive. However, the district court
specifically found that the testimony of Iles was not credible. For this reason, we only
consider the evidence that the district court considered -- witnesses’ testimony elicited
at Iles’ trial and information included in Appellants’ Presentence Reports -- to
determine if the district court had before it sufficient evidence to support an inference
that Appellants “aided, abetted, counseled, induced, procured, or willfully caused” Iles’
reckless behavior while behind the wheel of the getaway car. In doing so, “we view the
evidence and inferences drawn therefrom in the light most favorable to the district
court’s determination.” Cruz, 58 F.3d at 553.

                                           -9-
      The behavior of the car is not, in and of itself, a sufficient basis for a

finding that Appellant’s procured the driver’s reckless behavior. There was no

credible evidence before the court of what transpired in the car during the

getaway drive. Because the getaway car had tinted windows, the officers could

not directly observe either Appellant’s actions within the car. They could not see

the expressions on the Appellants’ faces nor hear what was being said in the car.

      However, relevant to the determination of whether a defendant procured or

encouraged the reckless behavior of another is evidence of the defendant’s

conduct prior to the act. See Young, 33 F.3d at 33. As the district court noted,

the evidence shows that the Appellants consciously planned an armed robbery that

would involve employee witnesses and a waiting car. These employees would

have immediate access to telephones and alarm systems once the Appellants left

the building. A quick getaway was an integral part of that plan. A quick getaway

on a wet, icy morning necessarily includes the possibility, if not probability, of

reckless endangerment of the public and police officers.            Appellants offer

no evidence that they told Iles to slow down or stop the car during the chase. 2



      2
          The absence of any refutation or contradiction by Appellants does not decrease
the Government’s burden of proof, it simply allows the persuasive force of the
Government’s evidence to go undiminished. There is no burden on Appellants to
disprove the evidence against them. The burden is on the government to support the
sentence enhancement by a preponderance of the evidence. See United States v. Rice, 52
F.3d 843, 848 (10th Cir. 1995). Appellants’ silence merely does not make it any less
likely that they encouraged reckless driving on the part of Iles.

                                         - 10 -
What’s more, evidence contained in Appellants’ Presentence Reports supports the

district court’s findings that they encouraged Iles’ reckless behavior. Both

Conley’s and Scott’s Presentence Reports indicate that the Appellants admit

“trying to avoid arrest by trying to outrun authorities during the high speed chase

following the bank robbery.”

      In addition to the evidence expressly recited by the district court, there is

other evidence in the Presentence Reports and Iles’ trial record that supports the

district court’s finding that these Appellants “aided, abetted, counseled

commanded, induced, procured or willfully caused” Iles’ reckless behavior.

Looking at all the evidence before the district court, the evidence reveals that

Appellants planned an armed bank robbery involving employee victims with

access to alarm systems, which supports an inference that a rapid escape was part

of Appellants’ plan; the vehicle departed immediately and quickly, further

corroborating that this was a planned activity; the Appellants were leaving the

scene of a very serious crime, providing a motive to take desperate -- and reckless

-- measures to flee and elude capture; Appellants both had guns and the driver did

not, supporting the conclusion that Appellants had the ability to control the

driver’s behavior during the chase; Appellants conceded that they were “trying to

outrun authorities” during the high speed chase. These facts are more than




                                        - 11 -
sufficient to support the district court’s findings that Appellants were responsible

for Iles’ reckless endangerment during flight.



                                 CONCLUSION

For the reasons stated above, the sentence enhancement imposed by the district

court is AFFIRMED.




                                        - 12 -
