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This order and judgment is not binding precedent, except under the doctrines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