United States v. Southerland

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit March 31, 2005

Charles R. Fulbruge III
Clerk
No. 03-11319

United States of America,

Plaintiff-Appellee,

VERSUS

Jeffery Lynn Southerland,

Defendant-Appellant.

Appeal from the United States District Court
For the Northern District of Texas

Before REAVLEY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-Appellant Jeffrey Lynn Southerland pleaded guilty by

written agreement to bank robbery, 18 U.S.C. § 2113(a), and access

device fraud, 18 U.S.C. § 1029(a)(1), (c)(1)(A)(i). The district

court sentenced Southerland to concurrent 96-month terms of

imprisonment and three-year terms of supervised release.

Southerland appeals, arguing the court erred by: (1) imposing a

two-level enhancement for reckless endangerment during flight

pursuant to United States Sentencing Guidelines § 3C1.2 when no

nexus existed between the offense and the reckless endangerment
during flight; (2) double counting when applying the reckless

endangerment enhancements to the offense level calculation of both

the bank robbery offense and the access device fraud offense; and

(3) imposing a sentence in violation of the Sixth Amendment under

United States v. Booker, 125 S. Ct. 738 (2005).

Finding that the district court erred as a matter of law in

its application of the then-mandatory guidelines, we VACATE

Southerland’s sentence and REMAND for resentencing.

I.

On December 23, 2002, Southerland entered the SouthTrust Bank

in Haltom City, Texas, and robbed the bank of $1,802. SouthTrust

Bank’s accounts and deposits were then insured by the Federal

Deposit Insurance Corporation. Upon entrance, Southerland spoke

with a representative about opening an account with a French

passport and birth certificate. When he learned the documents were

insufficient identification for opening an account, Southerland

left the bank. He immediately reentered the bank, approached a

teller, and passed her a note threatening the teller’s life and

demanding money from her drawer.1

Prior to the bank robbery, in August 2002, Southerland began

1
According to the factual resume supporting the plea
agreement, the note read: “This is a robbery. Follow these
instructions and I will not use my gun. Die packs will get you
killed. Do not turn around or look to anyone. Take all of the
100's and 50's from your drawer and place them on top of the
notebook. Be calm and I will not hurt you. Act normal until I
leave. You only have 15 seconds.”

2
communicating with unknown individuals in Ukraine and England.

Southerland wired money to these foreign individuals, who in turn

mailed access devices — that is, credit cards — to Southerland.

These illegally obtained cards displayed names and account numbers.

At the request of the foreign individuals, Southerland opened bank

accounts at Omni American Bank and at First Convenience Bank in the

name of Bradley Carlton. Later, he purchased an encoder and began

a scheme of purchasing access device account numbers, rather than

the complete credit card, in order to encode the numbers onto the

cards himself.

Southerland purchased false identification documents and

manufactured Lockheed Martin employee identification cards as a

second form of personal identification. He used the fraudulent

credit cards to purchase items, including gift cards, at various

stores. Southerland used at least two e-mail addresses for

purposes of making purchases with the fraudulent credit cards and

of receiving purchased merchandise. Southerland often recycled the

same card by encoding new names and numbers onto the card, and

typically he charged no more than $2,000 on a card before re-

encoding it with a new name and account number. Due to

Southerland’s conduct, retailers lost, in total, approximately

$26,373.17.

On February 24, 2003, Fort Worth police officers arrested

Southerland, for theft and evading arrest. At the time of the

arrest, Southerland possessed: approximately 28 stolen or

3
fraudulent access devices; three Wal-Mart gift cards obtained

fraudulently; and one or more identification documents for four

individuals who were real people (one of whom was dead) and eight

individuals who were not real people. These documents included two

birth certificates, one passport, seven military identification

cards, six Lockheed Martin identification cards, six social

security cards, and twenty state driver’s licenses or

identification cards. After his arrest, Southerland admitted

verbally and in writing his fraudulent conduct to law enforcement.

Based upon that conduct, Southerland pleaded guilty on August 29,

2003, to bank robbery and access device fraud. See 18 U.S.C. §

2113(a); 18 U.S.C. § 1029(a)(1), (c)(1)(A)(i).

The presentence report included additional information

regarding Southerland’s arrest and his conduct on February 24,

2003, prior to arrest that was not admitted by Southerland. The

presentence report described: Fort Worth police attempted to

initiate a traffic stop of Southerland who was operating a stolen

rental car which he had obtained using fraudulent identification;

Southerland fled from officers attempting to detain him; and after

a vehicle and foot pursuit, officers arrested Southerland and a

passenger. During Southerland’s flight from the officers, the

presentence report describes that he ran one traffic light and two

stop signs and drove at a high rate of speed. Finally, the report

indicates that, upon arrest, the officers charged Southerland with

4
theft and evading arrest.

The district court sentenced Southerland on December 5, 2003,

based upon the probation officer’s recommendations over

Southerland’s multiple objections. The probation officer

determined that the offenses of conviction would be grouped

separately. See U.S.S.G. § 3D1.2(d).2 On the bank robbery

conviction, the base offense level was 20 (Nov. 2003).3 Two levels

were added because under § 3C1.2 Southerland recklessly created a

substantial risk of death or bodily injury in the course of fleeing

law enforcement officers on February 24, 2003. See § 3C1.2. The

subtotal offense level equaled 26 for the bank robbery offense.

With respect to the access device fraud count, the probation

officer assigned a base offense level of 6. See § 2B1.1(a)(2).4

2
All further section citations refer to the 2003 United
States Sentencing Guideline Manual, unless otherwise provided.
3
See § 2B3.1(a). Several enhancements were recommended and
applied that are not relevant to this appeal. For the bank
robbery offense, those enhancements include: two levels added
because the property of a financial institution was taken, §
2B3.1(b)(1), and two levels added because Southerland gave the
victim bank teller a note that implied a threat of death, §
2B3.1(b)(2)(F).
4
Enhancements to the access device fraud offense that are
not at issue in this appeal include: four levels added because
the fraud involved more than $10,000 and less than $30,000, §
2B1.1(b)(1)(C); two levels added because a substantial part of
the offense was committed outside the United States, §
2B1.1(b)(2)(8)(B); two levels added for specific fraud
characteristics, § 2B1.1(b)(9)(A)-(C); and Southerland’s
leadership role in the fraud triggered two additional levels, §
3B1.1(c).

5
And, again with respect to the access device fraud offense, the

officer added two levels under § 3C1.2 based upon the reckless

flight from law enforcement on February 24, 2003. The subtotal for

the access device fraud offense level was 18. Southerland’s

resulting guideline range was 77 to 96 months’ imprisonment.5

At the time of his sentencing, Southerland objected, arguing

that the district court’s application of the § 3C1.2 two-level

enhancement was in error because: (1) in applying the enhancement

to the bank robbery offense, the requisite nexus did not exist

between the offense and the reckless endangerment during flight;

and (2) the application of the enhancement to both offenses

constituted impermissible double-counting. Southerland failed to

object before the district court to § 3C1.2's application on the

grounds that it violated his Sixth Amendment right to have facts

which enhance his sentence determined beyond a reasonable doubt by

a jury. See Booker, 125 S. Ct. at 756.

Southerland timely appealed, arguing that the district court

erred in sentencing because: (1) the application of the § 3C1.2

enhancement requires a nexus between the flight from law

enforcement and the bank robbery offense; (2) the court

5
One multiple-count-adjustment unit for the bank robbery
offense and one-half unit for the access device fraud offense
were added. § 3D1.1(a)(3). Based upon those units, one level
was added to the bank robbery subtotal, creating a combined
adjusted offense level of 27. Three levels were subtracted for
Southerland’s acceptance of responsibility, resulting in a total
offense level of 24. Southerland’s criminal history score of
eight placed him in a category of IV.

6
impermissibly double counted in applying § 3C1.2 to both the bank

robbery and access device fraud offenses; and (3) determination of

his reckless conduct in flight from law enforcement on February 24,

2003, was a fact, other than the fact of a prior conviction, not

proven to a jury beyond a reasonable doubt and not admitted by

Southerland that, by virtue of its enhancement of his sentence,

violates his Sixth Amendment right to a jury trial.

II.

In this case, we review a district court's legal conclusions

and interpretations of the federal sentencing guidelines de novo,

United States v. Griffin, 324 F.3d 330, 365 (5th Cir. 2003),

because in the limited cases on appeal that challenge as a matter

of law the propriety of the district court’s application of the

pre-Booker mandatory sentencing guidelines, this independent

standard of review survives Booker’s effect on standards of review

that will apply to the advisory application of the guidelines.

United States v. Villegas, No. 03-21220, 2005 WL 627963 (5th Cir.

filed Mar. 17, 2005), at *4-5.6

6
In Villegas, this Circuit addressed the case where a
defendant failed to raise before the district court both a
challenge to the propriety of the guideline application as well
as a Booker challenge. 2005 WL 627963, at *2. Here, Southerland
raised his misapplication challenge to the district court but did
not raise a Booker challenge or object to the enhancement on the
basis of his Sixth Amendment rights. In Southerland’s case, the
misapplication challenge and Booker challenge on appeal both stem
from the district court’s application of § 3C1.2 on the basis of
facts described solely in the presentence report and not admitted
by Southerland.

7
 The sentencing guidelines provide a two-level enhancement for

obstructionist conduct like that described in Southerland’s

presentence report. “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.” § 3C1.2.

Southerland argued, both in his written objections raised to

the district court and at oral argument prior to sentencing, that

a nexus is required between the conduct triggering § 3C1.2's

application and the underlying offense of conviction. He argued

the requisite nexus is lacking here between the bank robbery

offense and the reckless endangerment conduct described in the

presentence report.

Southerland urges this Court to read § 3C1.2 in the larger

context of the guidelines. Section 1B1.3 describes “Relevant

Conduct (Factors that Determine the Guideline Range).” In relevant

part, subsection (a) reads:

(a) Chapters Two (Offense Conduct) and Three
(Adjustments). Unless otherwise specified, . . . (iv)
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. . . .

§ 1B1.3(a) (emphasis added).

8
 Thus, in determining adjustments under Chapter Three,

including the reckless endangerment enhancement at issue here,

courts must evaluate the acts or omissions of the defendant that

occurred during the commission of the offense, the preparation for

the offense of conviction, or “the course of attempting to avoid

detection or responsibility for” the offense of conviction. Id.

Such a requirement requires courts to engage in a familiar

analysis, that is, the discrimination between relevant and

irrelevant conduct.

In support of this reading of § 3C1.2, Southerland relies upon

United States v. Duran, 37 F.3d 557 (9th Cir. 1994). Duran was

convicted of armed robbery of a bank in Salem, Oregon. Id. at 559.

Four days after the robbery, he engaged in “a 30 minute car chase

through agricultural fields, a residential yard, and several

ditches and fences.” Id. The chase resulted in Duran’s arrest by

state officials, and he was later transferred to federal

authorities for prosecution on the bank robbery offense. Id. At

Duran’s sentencing, the court imposed § 3C1.2's enhancement,

finding the flight to be part of the same scheme and course of

conduct to avoid apprehension for the bank robbery. Id. at 560.

Duran appealed, arguing that a nexus is required between the

offense and the reckless endangerment in order for § 3C1.2 to apply

and that the facts of his offense and flight from law enforcement

were insufficiently connected to bear the enhancement. Id. at 559-

9
60. Because the government failed to respond to the argument, the

Ninth Circuit assumed, without holding, for purposes of analysis

that the nexus was required. Id. But the court rejected Duran’s

proposed factors for consideration and instead announced a

causation test for determining whether the requisite nexus is met.

Id. at 560. “A sufficient nexus exists to warrant enhancement

under U.S.S.G. § 3C1.2 if a substantial cause for the defendant’s

reckless escape attempt was to avoid detection for the crime of

conviction.” Id. The factors relevant to this causation

determination were: (1) “the state of mind of the defendant when he

recklessly attempted to avoid capture”; and, to a lesser degree,

(2) temporal and geographic proximity. Id.

In Duran’s case, the connection of the offense to the flight

from officers in time and geography were not determinative because

the court relied upon the first factor, Duran’s state of mind,

evinced by his statement made earlier the same day that he had

stolen a car and robbed a bank. Id. The court found this

statement to indicate the causation of the reckless escape attempt.

Id. Then, finding the nexus satisfied on the relevant facts and

the imposition of the enhancement not clearly erroneous, the court

affirmed Duran’s sentence. Id.

Other Circuits, in unpublished and nonprecedential opinions,

have declined to hold that § 3C1.2 requires a nexus between the

underlying offense and the reckless endangerment during flight, and

10
the government relies upon these cases. See United State v. Lykes,

71 Fed. Appx. 543 (6th Cir. 2003)(unpublished); United States v.

Green, 242 F.3d 391, 2001 WL 50754 (10th Cir. 1999) (unpublished).

We find the reasoning offered in those opinions and in the

government’s argument here unpersuasive in light of § 1B1.3's

express requirement that Chapter Three adjustments be based upon

acts or omissions occurring during the offense of conviction, the

preparation for the offense of conviction, or the course of

attempting to avoid detection or responsibility for the offense of

conviction. The language of the guidelines specifically requires

the connection of the enhancement not only to commission,

preparation, or evasion, but also to the specific offense of

conviction. See § 1B1.3(a)(1). The Commission’s language choices

demonstrate this necessity: Chapter Three adjustments are to be

determined on the basis of acts or omissions “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.” § 1B1.3(a)(1) (emphasis added).

Unlike the use of a general article, the use of “that” to modify

offense refers to the specific offense described immediately prior,

the “offense of conviction.” Thus, we disagree with the

government’s argument that the Commission might have expressed, but

did not, in § 3C1.2 a connection between the enhancement and the

offense of conviction. We also disagree with the Ninth Circuit

11
that a showing of causation is required. The 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.

In order to establish that the defendant’s sentence should be

enhanced under § 3C1.2, 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.” § 1B1.3 (emphasis added); §

3C1.2. This fifth element, required by § 1B1.3, is the source of

the nexus requirement that Southerland urges is lacking in his

case.

Here, Southerland’s reckless endangerment conduct is

insufficiently connected to the bank robbery conviction because the

government failed to show that the flight occurred in the course of

attempting to avoid detection or responsibility for that specific

offense. Under these facts, the other options — during commission

of the offense of conviction or in preparation for the offense of

conviction – do not bear on the question because Southerland

committed the offense or conviction on a single day, December 23,

12
2002, a full two months before the February 24, 2003, flight.

Thus, the discrete, noncontinuing offense was completed prior to

the chase.

In determining whether the flight and the offense of

conviction are connected sufficiently, we look primarily to any

evidence of the defendant’s state of mind while fleeing. See

Duran, 37 F.3d at 560. According to the presentence report, at the

time of the flight Southerland and his passenger drove a stolen

rental car. Southerland’s passenger possessed the following

substances: .52 grams of heroin, 1.82 grams of Alprazolam, and .419

grams of cocaine.7 The most compelling evidence of Southerland’s

state of mind during the flight is the evidence that while fleeing

he was in the midst of the commission of several crimes. That

Southerland then drove a stolen car containing controlled

substances and illegal drugs is compelling evidence that he evaded

officers in order to avoid detection and responsibility for the

offense of either automobile theft or drug possession. Neither of

the offenses that were ongoing at the time of the chase related in

any way to the bank robbery. Indeed, no evidence linking

Southerland to the bank robbery was discovered in the car. The

presentence report’s description of the facts related to the flight

supports the conclusion that Southerland’s state of mind in evading

7
She subsequently pleaded guilty to a possession charge in a
separate proceeding.

13
law enforcement related to the ongoing offenses of automobile theft

and drug possession, not to bank robbery.

In evaluating the fifth factor in the application of § 3C1.2,

we also examine the temporal and geographic proximity of the

reckless endangerment during flight to the offense of conviction,

as factors that supplement the inquiry into the defendant’s state

of mind. See id. Here, the temporal connection, two months

between the offense and the flight, is too attenuated to support

the application of § 3C1.2 in light of the evidence indicating that

Southerland was fleeing to avoid responsibility for possession of

a stolen car and possession of illegal drugs. It is true that both

the bank robbery offense and reckless endangerment occurred

generally in the Fort Worth area, but a general geographic

proximity is insufficient on its own to create the requisite nexus

when the more primary factor of the defendant’s state of mind in

fleeing and the additional factor of temporal proximity together

indicate the absence of a connection between offense and evasion.

The government argues that a defendant fleeing from law

enforcement for one offense is also necessarily attempting to evade

responsibility for any other offenses he has committed. According

to the government, this principle brings the flight within the

language of § 1B1.3 permitting Chapter Three enhancement for “all

acts and omissions committed, aided, abetted . . . or willfully

caused by the defendant.” See § 1B1.3. But the government’s

14
argument fails to account for the guidelines’ express provision

that the adjustment apply to such conduct or omissions for that

offense. The Guideline Commission might have expressly included

“any offense” or “all offenses” or any number of broader

descriptions of relevant conduct. Instead, the Commission

expressly modified the particular conviction to which an adjustment

might apply, and in light of this provision, we agree with

Southerland that his February 24, 2003, flight from Fort Worth

officers is insufficiently connected to the bank robbery offense to

permit a two-level enhancement for that offense under § 3C1.2.

A nexus also lacks between the access device fraud offense, as

alleged in the controlling information, and the reckless

endangerment. Again, to make this determination, we look primarily

to the evidence of the defendant’s state of mind while fleeing.

Then, we evaluate the temporal and geographic proximity between the

offense and the reckless endangerment during flight. As indicated

above, Southerland and his passenger were, on the basis of the

facts alleged in the presentence report, fleeing from law

enforcement on February 24, while driving a stolen car and

possessing illegal drugs. On the access device fraud count,

Southerland was charged only with the one time use of a single

counterfeit access device, a FleetBank Visa counterfeit card, on

January 11, 2003, more than a month prior to Southerland’s flight.

The record, including the presentence report, fails to connect the

15
access device offense as charged in the information with the

February 24 flight. Although the car Southerland drove while

evading Fort Worth officers contained fraudulent credit cards,

there is nothing in the record to connect the cards in the car at

the time of the arrest with the single, specific fraudulent access

device named in the information as the sole basis for that offense

of conviction. Also, as discussed above, no temporal proximity,

sufficient to overcome evidence of Southerland’s state of mind as

fleeing other crimes rather than this offense, coheres between this

offense and the flight from law enforcement. And, on this count as

on the bank robbery count, the geographic proximity is also

insufficient to outweigh the evidence that Southerland fled an

offense or offenses other than the single use of a fraudulent

access device charged here. Therefore, the district court also

erred in applying the § 3C1.2 enhancement to the access device

fraud count.

Thus, the district court erred in adjusting and imposing

Southerland’s sentence. In the absence of the erroneous

application of the § 3C1.2 enhancement, the applicable sentencing

range would have been lower than the range the district court

considered, and the maximum sentence would have been lower than the

maximum sentence that the district court imposed. On such a

record, remand is appropriate. See Williams v. United States, 503

U.S. 193, 203 (1992) (citing FED. R. CRIM. PROC. 52(a)); United

16
States v. Barrera-Saucedo, 385 F.3d 533, 536-37 (5th Cir. 2004)

(citing Williams, 503 U.S. at 203).

III.

Because we must vacate Southerland’s sentence due to the

misapplication of § 3C1.2, we need not reach his argument, raised

for the first time on appeal, that the district court erred in

sentencing by violating Booker or his argument that the district

court erred by double counting when it applied the § 3C1.2 reckless

endangerment enhancement to both the bank robbery and fraud counts.

After careful review of the entire record, the briefing, and

oral arguments, and for the foregoing reasons, we VACATE the

district court’s sentencing of Southerland and REMAND for

resentencing in accordance with this opinion.

17