Court Affirms Application of "Reckless Endangerment" Enhancement to Passenger

 In April 2021, Golson and three other individuals were involved in a shooting outside of a business in Elyria, Ohio. After the shooting, the individuals, including Golson, fled the scene and fled from law enforcement in their vehicle at a high rate of speed. Golson was a passenger in this vehicle. 

While pursuing Golson and his cohorts, police purposely disabled the vehicle, causing it to crash. Three of the occupants remained in the vehicle, but Golson fled on foot. Officers subsequently searched the vehicle and discovered four firearms, one of which contained Golson's DNA. Officers arrested Golson, and a federal grand jury indicted him for being a felon in possession of a firearm. 

Law enforcement again arrested Golson two months later in June 2021 after they responded to a new report of shots being fired in Elyria. As a result, a federal grand jury returned a superseding indictment containing an additional felon-in-possession count against Golson. 

Golson entered into a non-binding Rule 11 plea agreement to both counts. In his PSR, the United States Probation Office recommended a two-level enhancement pursuant to USSG § 3C1.2 for "reckless endangerment during flight." In support of its recommendation, the USPO noted Golson drove the vehicle at a high rate of speed and left a firearm therein after he fled the scene. 

Golson objected to the enhancement, arguing he was "running on foot from law enforcement" and that "at no time did he discharge a firearm." During sentencing, Golson, through counsel, argued the enhancement should not apply because there was no "potential risk of serious bodily harm" during his flight. He did not, however, cite to the fact he was only a passenger in the vehicle. The district court overruled his objection and sentenced Golson to 56 months’ imprisonment, three years of supervised release, and a $200 special assessment. 

On appeal, Golson argued the District Court erroneously applied USSG § 3C1.2 because he was not the driver of the vehicle and did not facilitate the chase. The Sixth Circuit disagreed and affirmed his sentence. It first held that Golson did not properly preserve his objection that the enhancement should not apply because he was only a passenger in the vehicle. While it acknowledged Golson raised the issue during his allocution, it held this was insufficient to preserve it for appellate review, noting he should have raised it through his counsel. Since his counsel did not do so, he did not preserve it for appellate review.

Applying plain error review, the Court held the District Court properly applied USSG § 3C1.2 because it reasonably inferred from the undisputed facts contained in his PSR that Golson actively participated in fleeing from law enforcement. It noted the PSR established Golson was an active participant in a crime during "broad daylight" with many witnesses and thus found it was necessary for Golson to flee the scene. It also held it was proper for the District Court to infer he had a reason to flee due to his extensive criminal history. Finally, it held the District Court could infer from Golson's subsequent flight in June 2021 that he had a "pattern and history of flight after dangerous situations." It thus held the District Court did not plainly err in sentencing him.