                                                                                  FILED
                                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                         Tenth Circuit

                              FOR THE TENTH CIRCUIT                         March 29, 2016
                          _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                         No. 15-1206
                                                 (D.C. No. 1:14-CR-00187-REB-1)
TRENTON HOLLIS PORTER,                                       (D. Colo.)

       Defendant - Appellant.
                       _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before KELLY, GORSUCH, and MORITZ, Circuit Judges.
                  _________________________________

       Trenton Hollis Porter pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1), and the district court imposed a within-Guidelines

sentence of 96 months’ imprisonment. We reject Porter’s challenge to the district

court’s application of the two-level sentencing enhancement under U.S.S.G. § 3C1.2

for reckless endangerment during flight. But because the district court plainly erred

in treating Porter’s prior Colorado conviction for second-degree assault as a crime of

violence for purposes of determining his base offense level under U.S.S.G.

§ 2K2.1(a), we remand with directions to vacate Porter’s sentence and resentence

him.


       *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Porter first argues the undisputed facts don’t support a U.S.S.G. § 3C1.2

enhancement. That provision permits a two-level enhancement “[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.” U.S.S.G. § 3C1.2.

“Reckless” is defined 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 in such a situation.” U.S.S.G. § 2A1.4 cmt. n.1; see id.

§ 3C1.2 cmt. n.2. And notably, “the standard of care envisioned by the Guidelines is

that of the reasonable person, not the reasonable fleeing criminal suspect.” United

States v. Conley, 131 F.3d 1387, 1389 (10th Cir. 1997).

      Relying on a general statement from Conley, Porter argues the undisputed facts

don’t demonstrate reckless conduct warranting application of the sentencing

enhancement here.1 In Conley, we recognized the possibility of “situations in which a

defendant might flee from law enforcement officers in a manner that does not

recklessly endanger others.” Id. at 1390. But this is not one of those situations.



      1
         The parties disagree on the standard of review. Porter urges us to review this
issue de novo because, according to Porter, the undisputed facts are insufficient as a
matter of law to support the enhancement. See United States v. Hamilton, 587 F.3d
1199, 1222 (10th Cir. 2009) (suggesting de novo review is appropriate when
defendant asserts undisputed facts don’t support enhancement) The government urges
us to review for clear error. See United States v. Brown, 314 F.3d 1216, 1221 (10th
Cir. 2003) (reviewing for clear error the district court’s “determination that
[defendant’s] flight constituted reckless endangerment”). But we need not
definitively resolve which standard of review applies in this context because Porter’s
argument fails under either standard.
                                            2
       Here, while investigating a report of “shots fired,” a Colorado Springs police

officer attempted to stop a white Mustang matching the description of the vehicle

allegedly involved in the shooting. R. vol. 1, 18. The Mustang’s driver, Porter,

refused to stop and led the officer on a short pursuit, committing several traffic

violations and ultimately crashing into a residential garage. When the officer arrived

at the crash site, Porter got out of the Mustang and ran away. The officer, still in his

patrol car, continued to pursue Porter and watched as Porter dropped a pistol on the

ground and attempted to jump over a fence. The officer stopped his car and ordered

Porter to stop, but Porter refused. The officer eventually subdued Porter, arrested

him, and recovered the discarded pistol—a fully-loaded, Glock 40-caliber

semiautomatic pistol with a live chambered round.

       Porter argues these undisputed facts are insufficient, as a matter of law, to

support the enhancement because the facts don’t identify the speeds at which he

drove, the specific traffic violations he committed, or any bystanders he actually

placed in harm’s way. But Porter cites no authority supporting his argument that a

person who flees in a vehicle to evade a law enforcement officer, drives at

unspecified speeds, commits several traffic violations, crashes into a residential

garage, and drops a fully-loaded semiautomatic pistol on the ground as he continues

to flee on foot hasn’t grossly deviated from the standard of care that a reasonable

person, rather than a reasonable fleeing criminal suspect, would exercise in the same

situation.




                                            3
       In fact, persuasive authority suggests otherwise. See, e.g., United States v.

Tasaki, 510 F. App’x 441, 442, 443-45 (6th Cir. 2013) (unpublished) (affirming

§ 3C1.2 enhancement when defendant led officers on short car chase, jumped out of

car, continued to flee on foot, retrieved a loaded firearm from his pocket, and threw

the firearm and an empty magazine on ground; rejecting defendant’s argument that

enhancement wasn’t warranted because evidence didn’t show he pointed gun at

police or that other persons were in residential area where he dropped firearm);

United States v. Gaylord, 61 F. App’x 623, 624-25 (10th Cir. 2003) (unpublished)

(affirming § 3C1.2 enhancement when defendant caused no injuries but evidence

demonstrated defendant’s flight put other drivers at risk and ended when defendant

hit loose gravel and flipped his own car); United States v. Jefferson, 58 F. App’x 8,

10 (4th Cir. 2003) (unpublished) (affirming § 3C1.2 enhancement when defendant

fled on foot from officers and dropped loaded pistol; reasoning that risk of accidental

discharge occurred when defendant dropped pistol, creating substantial risk of injury

to pursing officers).

       Because the undisputed facts demonstrate the recklessness of Porter’s flight,

we affirm the district court’s application of the reckless-endangerment enhancement.

       Next, Porter argues the district court plainly erred by treating his prior

Colorado conviction for second-degree assault, under Colo. Rev. Stat. § 18-3-

203(1)(e), as a crime of violence for purposes of determining his base offense level

under U.S.S.G. § 2K2.1(a)(2). That provision calls for a base-offense level of 24 if

the defendant has at least two prior felony convictions for a “crime of violence” as


                                            4
defined in U.S.S.G. § 4B1.2(a). See U.S.S.G. § 2K2.1 cmt. n.1 (incorporating “crime

of violence” definition from § 4B1.2(a)); see also United States v. Hanns, 464 F.

App’x 769 (10th Cir. 2012) (unpublished) (recognizing that second-degree assault, as

defined by Colo. Rev. Stat. § 18-3-203(1)(e), qualifies as a crime of violence under

§ 4B1.2(a)(2)’s “residual clause”).

      Although Porter didn’t object at sentencing to the district court’s classification

of his prior assault conviction as a crime of violence, both parties agree that the

classification amounts to plain error under Johnson v. United States, 135 S. Ct. 2551,

2558 (2015). See United States v. Madrid, 805 F.3d 1204, 1210-11 (10th Cir. 2015)

(applying plain-error test in same circumstances). In Johnson, decided after Porter’s

sentencing, the Supreme Court held that the “residual clause” defining “violent

felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was

unconstitutionally vague. And, in light of Johnson, we held in Madrid that

§ 4B1.2(a)(2)’s virtually identical “residual clause” defining “crime of violence” is

also unconstitutionally vague. 805 F.3d at 1211-12.

      Thus, we remand to the district court with instructions to vacate Porter’s

sentence and resentence him without treating Porter’s prior second-degree assault

conviction as a crime of violence for purposes of U.S.S.G. § 2K2.1(a)(2).2


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge
      2
       Because we are remanding for resentencing, we agree with the parties that we
need not address Porter’s challenge to the special conditions of supervised release.
                                           5
