RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0145p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 06-5519
v.
,
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JEFFREY LYNN DIAL, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Middle District of Tennessee at Columbia.
No. 05-00008—Robert L. Echols, District Judge.
Submitted: November 2, 2007
Decided and Filed: April 9, 2008
Before: SILER, MOORE, and GILMAN, Circuit Judges.
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COUNSEL
ON BRIEF: J. Daniel Freemon, FREEMON LAW FIRM, Lawrenceburg, Tennessee, for
Appellant. Harold B. McDonough, ASSISTANT UNITED STATES ATTORNEY, Nashville,
Tennessee, for Appellee.
MOORE, J., delivered the opinion of the court, in which GILMAN, J., joined. SILER, J.
(p. 6), delivered a separate concurring opinion.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Jeffrey Lynn Dial (“Dial”)
pleaded guilty to one count of conspiracy “to knowingly and intentionally manufacture, distribute,
and possess with intent to distribute 50 grams or more of a mixture and substance containing a
detectable amount of methamphetamine,” in violation of 21 U.S.C. § 841(a)(1), Joint Appendix
(“J.A.”) at 15 (Superseding Indictment at 3), and one count of possession of “one or more firearms
in furtherance of a drug trafficking crime,” in violation of 18 U.S.C. § 2 and 18 U.S.C. § 924(c), J.A.
at 17 (Superseding Indictment at 5). The district court sentenced Dial to imprisonment for 97
months and 60 months, on each count respectively, with the terms running consecutively. The
district court applied an enhancement to Dial’s sentence for reckless endangerment during flight,
United States Sentencing Guidelines Manual (“U.S.S.G.”) § 3C1.2. On appeal, Dial argues that
there must be a nexus between the offense conduct for which he was convicted and the
1
No. 06-5519 United States v. Dial Page 2
enhancement. For the following reasons, we hold that there is a nexus requirement embedded in
§ 3C1.2 and AFFIRM the district court’s judgment.
I. BACKGROUND
On two separate occasions, April 1 and April 6, 2004, the Tennessee Bureau of Investigation
(“TBI”) obtained fifty-five grams of methamphetamine through an informant who purchased the
drugs from Dial. On April 8, 2004, Agent Darryl Richardson (“Richardson”) positioned his
unmarked vehicle on a rural dirt road “at a point in the road where [Dial] could see [Richardson’s]
emergency equipment flashing.” J.A. at 174 (Sent. Hr’g, Test. of Richardson at 130:10-11).
Richardson stood outside his vehicle wearing a vest that read “POLICE” in large, yellow letters and
drew his gun. Id. (Sent. Hr’g, Test. of Richardson at 130:11-13). A confidential source had relayed
to Richardson that Dial was returning to his home with “a substantial amount of methamphetamine.”
Id. (Sent. Hr’g, Test. of Richardson at 130:2-8). Richardson testified that he was making an
“investigatory stop”; he did not have a search or arrest warrant. J.A. at 183 (Sent. Hr’g, Test. of
Richardson at 139:1-2, 8-10).
Upon seeing Richardson, Dial stopped his vehicle, looked at Richardson, and then turned his
car to proceed up an embankment in order to go around Richardson’s vehicle. Dial’s vehicle struck
Richardson’s vehicle on Richardson’s left front corner as Dial’s vehicle came down the
embankment; when Dial’s vehicle “grabbed” Richardson’s vehicle and began to slowly drag it,
Richardson jumped into his vehicle because he feared for his safety. J.A. at 178 (Sent. Hr’g, Test.
of Richardson at 134:4-14). After a short movement, the two cars disengaged, and Dial left the
scene at a high rate of speed; Richardson testified that he did not immediately pursue Dial because
Dial had left the area before Richardson “developed or grasped [his] wits.” J.A. at 180 (Sent. Hr’g,
Test. of Richardson at 136:3-5). Richardson’s vehicle had some damage to the “front driver’s side
fender and light.” J.A. at 179 (Sent. Hr’g, Test. of Richardson at 135:2-4). By the time Richardson
located Dial’s car shortly afterwards, Dial had abandoned it in the woods.
On April 8, 2004, shortly after the encounter between Richardson and Dial, agents of TBI
obtained and executed a search warrant on Dial’s residence; they found several firearms and a small
amount of methamphetamine. On May 11, 2004, working with an informant again, TBI agents
obtained marijuana and methamphetamine from Dial at his residence.
A grand jury indicted Dial on March 23, 2005. Officers arrested Dial on April 20, 2005.
The government filed a superseding indictment on June 29, 2005. Dial pleaded guilty to two counts
on December 7, 2005. The presentence report indicated that the parties “agree[d] to disagree” as
to whether a two-level enhancement should apply to Dial pursuant to U.S.S.G. § 3C1.2 for reckless
endangerment during flight. J.A. at 236 (PSR at ¶ 11(iii)). On March 27, 2006, after hearing
testimony at the sentencing hearing related to the enhancement for reckless endangerment during
flight, the district court applied the enhancement and sentenced Dial to a total of 157 months of
imprisonment; Dial filed a timely appeal.
II. ENHANCEMENT FOR RECKLESS ENDANGERMENT
DURING FLIGHT
A. Standard of Review
“[We] review[ ] the district court's application of the United States Sentencing Guidelines
de novo and the district court’s findings of fact at sentencing for clear error.” United States v. Hunt,
487 F.3d 347, 350 (6th Cir. 2007) (quoting United States v. Tocco, 306 F.3d 279, 284 (6th Cir.
2002)). Because the “question of what constitutes endangerment is a mixed question of law and fact
. . . [that] is highly fact-based,” we give “significant deference to the district court.” United States
v. Hazelwood, 398 F.3d 792, 796 (6th Cir. 2005).
No. 06-5519 United States v. Dial Page 3
B. Analysis
Dial raises one issue on appeal: whether the district court erred when it determined that a
two-level enhancement for reckless endangerment during flight applied to him. When determining
a defendant’s sentence, the district court first ascertains the base offense level and then applies
adjustments (if any) related to obstruction of justice. The United States Sentencing Guidelines (“the
Guidelines”) include an obstruction-of-justice adjustment that states the following: “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.” U.S.S.G. § 3C1.2 (2006).
The courts look to general principles stated in the Guidelines when determining if an
enhancement, such as § 3C1.2, should apply. In this case, the relevant-conduct provision, U.S.S.G.
§ 1B1.3, is particularly important. Section 1B1.3 provides in pertinent part:
(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise
specified, . . . adjustments in Chapter Three[] shall be determined on the basis of the
following:
(1)(A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant . . . that
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. . . .
U.S.S.G. § 1B1.3(a) (emphasis added).
The district court held that the two-level enhancement under § 3C1.2 for reckless
endangerment during flight applied, based on the events of April 8, 2004, because Richardson
testified that he feared for his safety and that an informant had told Richardson that Dial would have
drugs in his car at that time. J.A. at 204-05 (Sent. Hr’g Tr. at 160-61). Dial argues that the
enhancement should apply only when there is a “nexus between” the offense of conviction and the
reckless endangerment during flight. Appellant Br. at 15-16. Dial argues that there was not a nexus
between his methamphetamine and firearm convictions and his avoidance of Richardson on the rural
road. He argues that there were no overt acts or alleged transactions in furtherance of the conspiracy
to distribute methamphetamine that occurred on the day that he drove up an embankment to go
around Richardson’s vehicle. Finally, Dial argues that there was no risk of death or serious bodily
injury to anyone when he drove down the embankment.
Only the United States Court of Appeals for the Fifth Circuit has addressed in detail the issue
of whether there must be a nexus between the crime of conviction and any reckless endangerment
during flight in order to enhance a defendant’s sentence under § 3C1.2.1 In United States v.
Southerland, 405 F.3d 263 (5th Cir. 2005), the Fifth Circuit held that there is a nexus requirement
embedded in § 3C1.2 because enhancements should be added pursuant to the general principles of
the Guidelines. Southerland, 405 F.3d at 268. Specifically, § 1B1.3(a) instructs that adjustments
to offense levels should be made when there is a connection between the act or omission at issue
(such as reckless flight) and the underlying offense of conviction. However, Southerland did not
require the government “to demonstrate that the underlying offense caused either the reckless
endangerment during flight or the flight itself”; the government needed to show only “that a
sufficient nexus” existed “between the underlying offense and the reckless flight.” Id. (emphasis
1
The Ninth Circuit assumed without deciding that § 3C1.2 had a nexus requirement because the government
did not disagree with the idea that such a requirement could exist. United States v. Duran, 37 F.3d 557, 559-60 (9th Cir.
1994) (“Because the government does not contest the nexus requirement, we will assume without so holding that
U.S.S.G. § 3C1.2 requires a nexus between the crime of conviction and the reckless endangerment.”).
No. 06-5519 United States v. Dial Page 4
added). Southerland developed a five-part test for determining if a § 3C1.2 enhancement should
apply to a defendant:
[T]he 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.”
Id. (quoting U.S.S.G. § 1B1.3). When determining whether the flight and the offense of conviction
were connected sufficiently for the reckless-endangerment enhancement to apply, the Southerland
court looked “primarily to any evidence of the defendant’s state of mind while fleeing.” Id. To
supplement the inquiry into the defendant’s state of mind, the Fifth Circuit “examine[d] the temporal
and geographic proximity of the reckless endangerment during flight to the offense of conviction.”
Id. at 269.
Today, we adopt the Southerland approach. When applying § 3C1.2, the district court must
find a nexus between the offense for which the2 defendant was convicted and the conduct that
involved reckless endangerment during flight. Southerland, 405 F.3d at 268. The general
principles of the Guidelines require sentencing courts to consider acts and omissions involving the
offense for which the defendant was convicted. See U.S.S.G. § 1B1.3. The general principles do
not suggest that causation should enter into the analysis. Id. Thus, as Southerland held, “[t]he
government need not demonstrate that the underlying offense caused either the reckless
endangerment during flight or the flight itself, only that a sufficient nexus lie between the underlying
offense and the reckless flight.” Southerland, 405 F.3d at 268.
All of the parts of the Southerland test are satisfied here. First, the district court implied that
Dial was reckless when it found that Dial drove his car in such a manner that Richardson “was in
fear of being seriously hurt.” J.A. at 205 (Sent. Hr’g Tr. at 161:17). Indeed, Dial conceded in his
brief that “[s]uch conduct may be deemed reckless.” Appellant Br. at 12. Second, the district court
found that Dial created a substantial risk of death or serious bodily injury because Dial’s actions
could have forced Richardson’s car to hit Richardson. Dial drove up an embankment and back down
again in order to avoid being stopped by Richardson, who was wearing a vest labeled “POLICE”
across the front and standing outside his vehicle in the middle of a rural dirt road. When Dial
descended the embankment, his car struck Richardson’s vehicle in such a manner that Richardson
got back into his vehicle in order to prevent his own vehicle from hitting him. Dial argues that there
are insufficient facts to establish that there was substantial risk of death or serious bodily injury for
Richardson and attempts to support this argument with the facts that Richardson was not injured and
that Richardson’s car was not moved a great distance by the impact. In addition, Dial argues that
there was “no one present in the vehicle” when Dial began his attempt to go around Richardson’s
vehicle. Appellant Br. at 13. However, the district court’s finding that Richardson justifiably “was
in fear of being seriously hurt by his own car being forced into him” by Dial’s car is supported by
Richardson’s testimony at the suppression hearing and at the sentencing hearing. J.A. at 205 (Sent.
Hr’g Tr. at 161:16-19). In addition, actual harm to Richardson and the distance of movement of the
2
In United States v. Lykes, 71 F. App’x 543 (6th Cir.), cert. denied, 540 U.S. 1093 (2003), an unpublished (and
therefore non-binding) decision, we stated in a footnote that there was “no nexus requirement in the language of
§ 3C1.2.” Id. at 553 n.7. Lykes completely failed to consider the general principles embedded in the Guidelines,
specifically § 1B1.3; these general principles must be considered in any application of § 3C1.2, despite the fact that they
are not part of the “language” of § 3C1.2. In addition, Lykes’s observation of the absence of any caselaw addressing the
nexus requirement was not a compelling reason to hold that no nexus requirement existed; although Southerland had
not been decided when we considered Lykes, proper review of the Guidelines as a whole leads to the conclusion that a
nexus must be established between the offense of conviction and the reckless flight in order for an enhancement to be
warranted.
No. 06-5519 United States v. Dial Page 5
vehicle are irrelevant; the provision at issue, § 3C1.2, is not concerned with actual harm, but with
the “substantial risk” of “serious bodily injury.” Also, that Richardson was outside his vehicle when
Dial began his attempt to drive around it does not eliminate the substantial risk of serious bodily
harm that Richardson faced; in fact, Richardson testified at both the suppression and sentencing
hearings that the risk of injury was sufficiently great that he felt unsafe outside his vehicle, and he
got into his vehicle in order to avoid injury from the vehicles. Based on this evidence, the district
court found that Dial created a substantial risk of death or serious bodily injury. The third part of
the Southerland test—creation of a substantial risk of death or serious bodily injury for another
person—is easily met here. Clearly Richardson was the specific other person at risk on these facts.
The fourth part of the Southerland test requires that Dial created the risk of bodily harm to
Richardson while Dial was fleeing from a law enforcement officer. The district court found that
Dial “had reason to believe that” Richardson was standing in the middle of the road near his vehicle
with a vest labeled “POLICE” “at least to question him, if not arrest him, at the scene,” J.A. at 205
(Sent. Hr’g Tr. at 161:11-13); thus, Dial’s decision to evade Richardson by trying to drive around
him led the district court to find that Dial “was fleeing from the officer” when he created the risk.
Id. (Sent. Hr’g Tr. at 161:24-25).
Finally, we conclude that this situation meets the fifth part of the Southerland test because
there is a sufficient nexus between Dial’s flight on April 8, 2004 and his underlying offense for
conspiracy to distribute methamphetamine. The district court’s findings of fact about Dial’s mindset
at the time of his flight, supported by the temporal and geographic proximity between the flight and
the conspiracy to distribute methamphetamine, lead to this conclusion. Officers had used an
informant to purchase methamphetamine from Dial on two occasions in April prior to his encounter
with Richardson on April 8, 2004; indeed, an informant had indicated that Dial would be carrying
a quantity of methamphetamine down the road when Richardson attempted to stop Dial on April 8.
As noted above, the district court found that Dial “had reason to believe that [Richardson] was at
least to question him, if not arrest him, at the scene.” J.A. at 205 (Sent. Hr’g Tr. at 161:11-13).
Thus, Dial’s attempt to avoid Richardson (by going around Richardson’s vehicle) connected directly
to the ongoing methamphetamine conspiracy of which he was a part: Dial was attempting to prevent
detection of the ongoing conspiracy. In addition, temporal proximity can be established because
Dial’s flight on April 8, 2004 fell within the time period of the conspiracy to distribute
methamphetamine, which ran from April 2004 to April 20, 2005, to which he pleaded guilty.
Finally, there is geographic proximity between the location of the conspiracy and the location of his
reckless flight. Thus, although Dial argues that there were no overt acts or alleged transactions in
furtherance of the conspiracy on April 8, 2004, it appears that the enhancement should apply because
Dial’s attempt to go around Richardson’s vehicle and his hasty departure were an attempt “to avoid
detection or responsibility” for the conspiracy to possess with intent to distribute methamphetamine,
an offense for which he was convicted in this case. See U.S.S.G. § 1B1.3.
Therefore, we conclude that all parts of the Southerland test are satisfied, and the district
court did not err in applying the enhancement for reckless endangerment during flight pursuant to
U.S.S.G. § 3C1.2 in calculating Dial’s sentence.
III. CONCLUSION
Because there was a nexus between Dial’s flight on April 8, 2004 and his conviction for
conspiracy to possess with intent to distribute methamphetamine, and because the other factors
required for an enhancement under § 3C1.2 for reckless endangerment during flight were satisfied,
we conclude that the district court’s decision to apply the enhancement was proper. We AFFIRM
the district court’s judgment.
No. 06-5519 United States v. Dial Page 6
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CONCURRENCE
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SILER, Circuit Judge, concurring. I concur in the majority decision affirming the district
court’s judgment. However, I write separately to say that it is not necessary to find a nexus
requirement embedded in USSG § 3C1.2. Thus, I would leave to another day the resolution of that
decision.
Like the decision in United States v. Duran, 37 F.3d 557, 559-60 (9th Cir. 1994), I would
assume without deciding that § 3C1.2 had a nexus requirement. Obviously, unlike Duran, the
Government in the case at bar did not agree with the idea that such a requirement could exist.
Nevertheless, I think that the nexus issue could be better resolved in a case in which a district court
enhanced a sentence based upon conduct which did not have a nexus between the offense of
conviction and the reckless endangerment during flight. Therefore, I would find that regardless of
whether there is a nexus requirement under the Guidelines, the district court properly enhanced the
sentence for reckless endangerment.