                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 12a0646n.06

                                            No. 11-3548
                                                                                           FILED
                             UNITED STATES COURT OF APPEALS                           Jun 19, 2012
                                  FOR THE SIXTH CIRCUIT                         LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )        ON APPEAL FROM THE UNITED
                                               )        STATES DISTRICT COURT FOR THE
v.                                             )        NORTHERN DISTRICT OF OHIO
                                               )
DEMETRIUS D. WILSON,                           )
                                               )        OPINION
       Defendant-Appellant.                    )
                                               )

       Before: KEITH, GIBBONS, and DONALD, Circuit Judges.


       DONALD, Circuit Judge. Defendant Demetrius D. Wilson was convicted of bank robbery

in violation of 18 U.S.C. § 2113(a). He appeals the district court’s application of a two-level

sentencing enhancement for reckless endangerment during flight, a two-level carjacking

enhancement, and a four-level abduction enhancement. For the following reasons, we affirm.

                                                   I.

       On August 2, 2010, Demetrius D. Wilson committed a bank robbery at a Fifth Third Bank

branch in Lima, Ohio. Following the robbery, Wilson exited the bank and attempted to flee. Using

what appeared to be a firearm,1 Wilson forced a taxi driver to drive away from the scene. Witnesses

called the police, and officers from the Lima Police Department subsequently located the taxi. Upon

spotting the police, Wilson instructed the taxi driver to put the car in reverse and drive backwards.



       1
           It was later determined that Wilson did not have a firearm but was carrying a BB gun.
No. 11-3548
United States v. Demetrius D. Wilson

Wilson eventually told the taxi driver she was not driving fast enough, stopped the car and pushed

the driver out of the vehicle. Wilson took control of the car and continued to drive in reverse at a

high rate of speed. A police officer shot at the cab and the bullet went through the windshield and

exited the rear tailgate of the vehicle. The taxi cab eventually collided with a fire hydrant. Wilson

exited the vehicle and proceeded to flee on foot. He was ultimately apprehended in an unattached

garage of an unoccupied home. Wilson subsequently pled guilty to the bank robbery charges.

       At the sentencing hearing, FBI Special Agent Craig Shulte testified that he had investigated

the bank robbery. Shulte testified that on the day of the robbery, Officer Leland of the Lima Police

Department told him that another officer had been standing behind the taxi cab as Wilson was

driving backwards. Shulte indicated that he remembered there was some concern over officer safety

after the shooting.

       Defense counsel objected to Shulte’s statements as hearsay. The district court reminded

defense counsel that hearsay statements were admissible at sentencing hearings but granted counsel

a continuing objection as to the statements.

       Based on Shulte’s testimony, the district court determined that Wilson’s operation of the taxi

cab created a substantial risk of death or serious bodily injury. As a result, it applied a two-level

sentence enhancement for reckless endangerment during flight. The district court also applied a two-

level enhancement for carjacking and a four-level enhancement for abduction. Wilson now appeals

the district court’s application of the three sentencing enhancements.

                                                 II.



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No. 11-3548
United States v. Demetrius D. Wilson

       We review a district court’s sentencing determination for procedural and substantive

reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).

We accept the district court’s findings of fact unless they are clearly erroneous. United States v.

Moon, 513 F.3d 527, 539-40 (6th Cir. 2008). The district court’s legal conclusions are reviewed de

novo. Id. at 540.

                                                  A.

       Under the Sentencing Guidelines, a sentencing enhancement for reckless endangerment

during flight is appropriate where “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.”

U.S.S.G. § 3C1.2. We have held that in order for the enhancement to apply, the

       government must show that the defendant (1) recklessly, (2) created a substantial risk
       of death or serious bodily injury, (3) to another person, (4) in the course of fleeing
       from a law enforcement officer, (5) and that this conduct occurred during the
       commission of the offense of conviction, in preparation for that offense, or in the
       course of attempting to avoid detection or responsibility for that offense.

United States v. Woods, 604 F.3d 286, 292-93 (6th Cir. 2010).

       The Guidelines define recklessness 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.”

U.S.S.G. § 2A1.4 cmt. n. 1; U.S.S.G. § 3C1.2 cmt. n.2. The defendant need not cause actual harm

to support a finding of reckless endangerment. United States v. Hazelwood, 398 F.3d 792, 796 (6th

Cir. 2005). “While the question of what constitutes endangerment is a mixed question of law and

fact, it is highly fact-based. Therefore, significant deference to the district court is required.” Id.

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No. 11-3548
United States v. Demetrius D. Wilson

        Although the act of driving in reverse at a high rate of speed is arguably inherently reckless,

the district court found that the two-level reckless endangerment enhancement was applicable based

on its finding that Wilson drove the getaway vehicle backwards in the direction of a police officer.

Wilson asserts that the district court erred in applying the enhancement based upon Shulte’s

inadmissible hearsay. He also argues that he did not create a substantial risk to others when he fled.2

        We have repeatedly held that sentencing hearings are not subject to the Federal Rules of

Evidence. United States v. Moncivais, 492 F.3d 652, 658 (6th Cir. 2007); Fed.R.Evid. 1101(d)(3).

Hearsay statements are admissible at sentencing. Moncivais, 492 F.3d at 658. They must, however,

bear “some minimal indicia of reliability” to protect a defendant’s right to due process. United

States v. Silverman, 976 F.2d 1502, 1512 (6th Cir. 1992) (en banc). Evidence that is beyond “mere

allegation in an indictment” may be presented as relevant at sentencing. Id. at 1504. To successfully

challenge hearsay evidence relied upon by the sentencing judge, “the defendant must establish that

the challenged evidence is materially false or unreliable, and that such false or unreliable information

actually served as the basis for the sentence.” Id. at 1512.

        At the sentencing hearing, Shulte testified that he interviewed witnesses to the robbery and

officers from the Lima Police Department who were first on the scene. Shulte then mentioned that

Detective Leland of the Lima Police Department told him there was an officer standing behind

Wilson’s car when another officer fired a shot in Wilson’s direction. He also testified that he

specifically remembered there was a concern for officer safety after the shot was fired. Thus,


       2
         The parties do not dispute that Wilson was fleeing from law enforcement after the
commission of a bank robbery.

                                                 -4-
No. 11-3548
United States v. Demetrius D. Wilson

Shulte’s investigation yielded evidence that Wilson’s act of driving the car in reverse towards an

officer while another officer fired a shot in the direction of the car put the officer standing behind

the car at risk of death or serious bodily injury.

        Wilson fails to show that Shulte’s statements were materially false or unreliable. He merely

emphasizes their nature as hearsay without any proof of falsity. Additionally, Wilson’s argument

that he was not reckless because he did not know the officer was standing behind the car is

unavailing. The law does not require that Wilson knew the officer was there, it only requires that

Wilson was aware of the risk of endangering another person. See U.S.S.G. § 2A1.4 cmt. n. 1;

Woods, 604 F.3d at 292.

        Ultimately, the district court chose to credit the testimony of Shulte, and we will uphold a

district court’s credibility finding absent clear error. See United States v. Johnston, 595 F.3d 292,

295 (6th Cir. 2010); Schroyer v. Frankel, 197 F.3d 1170, 1173 (6th Cir. 1999) (“When factual

findings rest upon credibility determinations, this Court affords great deference to the findings of the

district court.”).   Shulte’s hearsay testimony satisfies the “minimum indicia of reliability”

requirement of Silverman, and thus the district court did not err in finding that the two-level

enhancement for reckless endangerment during flight applies.

                                                     B.

        Sentencing Guideline § 2B3.1(b)(5) states, “If the offense involved carjacking, increase by

2 levels.” Carjacking is defined as the “taking or attempted taking of a motor vehicle from the

person or presence of another by force and violence or by intimidation.” U.S.S.G. § 2B3.1, cmt. n.1.

Guideline § 2B3.1(b)(4)(A) states, “If any person was abducted to facilitate commission of the

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No. 11-3548
United States v. Demetrius D. Wilson

offense or to facilitate escape, increase by 4 levels[.]” “‘Abducted’ means that a victim was forced

to accompany an offender to a different location.” U.S.S.G. § 1B1.1, cmt. n.1 (A).

        Wilson argues that the application of both the carjacking and abduction enhancements

amounts to double counting because they occurred with one action. Wilson is incorrect. In

attempting to flee from the bank, Wilson threatened the taxi driver with what appeared to be a

firearm and instructed her to drive him away. This was a carjacking because he took control of the

vehicle by threat of force. It was an abduction because the driver was forced to come along. In

United States v. Freeman, we held that there was no double counting where an enhancement and

conviction arose out of the same conduct but punished different aspects of the defendant’s conduct.

640 F.3d 180, 187 (6th Cir. 2011). Wilson’s two enhancements clearly punish different aspects of

his conduct. Thus, the district court did not err in applying both enhancements.

                                                III.

        For the reasons set forth above, we AFFIRM the term of imprisonment imposed by the

district court.




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