The Reckless Endangerment Enhancement Is Inapplicable Based on Discarding Firearm Alone

    In a divided opinion, the Sixth Circuit held last week that the reckless endangerment enhancement under Guideline 3C1.2 did not apply where the defendant discarded a sawed-off shotgun after bailing from a vehicle. United States v. Brooks. Under 3C1.2, the enhancement applies when a defendant creates a substantial risk of death or serious bodily injury to another person.
    Judge Moore, writing for the majority on this issue but not the remaining issues, explained that the reckless endangerment enhancement can be applied when a defendant discards a gun, because it creates a risk of harm from the gun being found and fired or even fired when it is dropped. But in Mr. Brooks' case, the gun was unloaded.
    The enhancement can also apply where the defendant draws the firearm in front of officers, creating an increased risk of gun play between the defendant and law enforcement. This creates a risk to officers and bystanders. However, the record in Mr. Brooks' case did not clarify whether officers saw Mr. Brooks pull out the firearm. Rather, the Sixth Circuit only had a short description in the PSR, which indicated Mr. Brooks dropped the gun in front of a residence. As a result, the majority held the facts were inadequate to support the enhancement.
    Judge Suhrheinrich wrote a dissenting opinion as to this issue and argued all the surrounding circumstances, including Mr. Brooks' flight from officers, increased the risk of harm and justified the enhancement.