[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 11, 2008
No. 07-13607 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00045-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDY ANTONIO MARTIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(February 11, 2008)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Randy Antonio Martin appeals his 168-month sentence for conspiracy to
possess with intent to distribute and to distribute 50 grams or more of cocaine base
(“crack”) and a quantity of cocaine hydrochloride, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. On appeal, Martin argues that the district court erred in
applying the two-point enhancement to his sentence for reckless endangerment,
pursuant to U.S.S.G. § 3C1.2, arguing that he was unaware that he was being
pursued by law enforcement officers prior to his arrest.
We review the district court’s factual findings for clear error, and its
interpretation of the Sentencing Guidelines de novo. United States v. Cook, 181
F.3d 1232, 1233 (11th Cir. 1999). A district court may enhance a defendant’s
sentence for reckless endangerment “[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. Although we have
held that a defendant must actually be fleeing a law enforcement officer in order
for this enhancement to apply, United States v. Sawyer, 115 F.3d 857, 859 (11th
Cir. 1997), it has not decided whether the defendant must be aware that the person
from whom he is fleeing is an officer, id. at 859 n.1 (expressly reserving judgment
on this issue). Assuming knowledge of the law enforcement officer is required, it
“can be based upon inferences from the surrounding circumstances.” United States
v. Peart, 888 F.2d 101, 104 (11th Cir. 1989).
The Guidelines define recklessness, under § 3C1.2, as “a situation in which
the defendant was aware of the risk created by his conduct and the risk was of such
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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. §§ 2A1.5, comment 1, 3C1.2, comment 2. “Driving a car at a high rate of
speed in an area where people are likely to be found constitutes reckless disregard
for others’ safety.” United States v. Washington, 434 F.3d 1265, 1268 (11th Cir.
2006). Under § 3C1.2, the person endangered by the defendant’s reckless conduct
may be “any person, except a participant in the offense who willingly participated
in the flight.” U.S.S.G. § 3C1.2, comment 4.
Upon review of the presentence investigation report and sentencing
transcript, and the briefs of the parties, we find no reversible error. The
circumstances surrounding his arrest demonstrated that he was aware of the law
enforcement officers pursuing him because, according to the testimony of an
officer, Martin veered around another officer’s vehicle, which had its blue lights
activated, struck a parked vehicle, continued driving at a high rate of speed until he
hit a curb and blew a tire, and fled on foot into a female’s nearby apartment.
Under these circumstances, the district court did not plainly err in finding that he
acted recklessly, and enhancing Martin’s sentence for reckless endangerment.
AFFIRMED.
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