United States v. Chong

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

MAXINE ANGELA CHONG, a/k/a D. M.  No. 01-4274

Chong, a/k/a Tanika Lambert, a/k/a

Maxine Chung, a/k/a Dawn Chong,

a/k/a Dawn Brown,

Defendant-Appellant.



Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, Senior District Judge.

(CR-00-181-BR)

Argued: December 5, 2001

Decided: April 8, 2002

Before WIDENER and WILLIAMS, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed in part and vacated and remanded in part with instructions

by published opinion. Judge Widener wrote the opinion, in which

Judge Williams and Senior Judge Hamilton concurred.

COUNSEL

ARGUED: George Alan DuBois, Assistant Federal Public Defender,

Raleigh, North Carolina, for Appellant. Winnie Jordan Reaves, Assis-

2 UNITED STATES v. CHONG

tant United States Attorney, Raleigh, North Carolina, for Appellee.

ON BRIEF: Thomas P. McNamara, Federal Public Defender,

Raleigh, North Carolina, for Appellant. John Stuart Bruce, United

States Attorney, Anne M. Hayes, Assistant United States Attorney,

Raleigh, North Carolina, for Appellee.

OPINION

WIDENER, Circuit Judge:

Defendant Maxine Chong appeals her convictions and sentence

resulting from her guilty plea to conspiracy with intent to distribute

at least 50 grams of cocaine base and possession with intent to distrib-

ute at least 50 grams of cocaine base. Miss Chong asserts that the dis-

trict court erred as a matter of law in enhancing her sentence under

USSG § 3C1.2 for reckless endangerment during flight based on the

relevant conduct standard in USSG § 1B1.3(a)(1)(B) that her co-

defendant’s reckless conduct was reasonably foreseeable. Addition-

ally, Miss Chong challenges the constitutionality of the federal drug

statutes, 21 U.S.C. §§ 841 and 846, in light of Apprendi v. New Jer-

sey, 530 U.S. 466 (2000).

I.

Maxine Chong was a passenger in a vehicle driven by her co-

defendant, Chesney Fairclough, when local police attempted to effect

a traffic stop on the vehicle. When officers activated the lights of the

police vehicle, Fairclough sped away, turning down a one-way street

and eventually stopping after the vehicle collided with a median. Fair-

clough then exited the vehicle and fled on foot, discarding 689 grams

of cocaine base as he ran. After Fairclough was apprehended, the

police returned to the vehicle and ordered Miss Chong and another

passenger, Vincent Lewis, out of the car.

As Miss Chong exited the car, she placed an object in her pants and

also attempted to flee on foot, but was detained. Miss Chong was

arrested at the scene and a search revealed 51.8 grams of cocaine base

and $8530 in her possession. An additional 25.9 grams of cocaine

base were recovered from a door panel of the vehicle.

UNITED STATES v. CHONG 3

Miss Chong pleaded guilty to a two count indictment charging her

with conspiracy to possess with intent to distribute more than 50

grams of cocaine base in violation of 21 U.S.C. § 846 and possession

with intent to distribute more than 50 grams of cocaine base in viola-

tion of 21 U.S.C. § 841(a). The presentence report (PSR) credited

Miss Chong with responsibility for 1295 grams of cocaine base

including: 51.8 grams found in her possession, 689 grams discarded

by Fairclough, 25.9 grams found in the vehicle, 28.3 grams sold to a

confidential informant in an earlier transaction, and 500 grams repre-

senting the amount of cash seized from the co-conspirators deter-

mined to be the proceeds of drug transactions. Miss Chong’s offense

level was enhanced by two levels under USSG § 3C1.2 for reckless

endangerment during flight based on co-defendant Fairclough’s

attempt to flee police by driving the wrong way down a one-way

street and wrecking the car upon a median. Finally, Miss Chong bene-

fitted from a three level reduction in her offense level from an accep-

tance of responsibility adjustment.

Miss Chong raised a number of objections to the PSR, including

an objection to the enhancement for reckless endangerment. The dis-

trict court, however, adopted the factual findings and guideline appli-

cation of the PSR and, based on a total offense level of 35, sentenced

Miss Chong to 235 months on each count to be served concurrently.

II.

We exercise jurisdiction over this appeal under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a). Although we give due deference to the dis-

trict court’s application of the Sentencing Guidelines to the facts,

when the question involves the legal interpretation of a guideline pro-

vision, our review is de novo. United States v. Daughtrey, 874 F.2d

213, 217 (4th Cir. 1989).

III.

A defendant’s sentence can be increased by two levels under USSG

§ 3C1.2 "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." The district court increased Miss

Chong’s offense level by two levels under § 3C1.2 because the court

4 UNITED STATES v. CHONG

accepted the findings of the PSR that it was reasonably foreseeable

to Miss Chong that her co-defendant might attempt to elude arrest. In

applying the enhancement for reckless endangerment during flight,

the district court relied on the language in § 1B1.3(a)(1)(B), which

defines relevant conduct in the case of a jointly undertaken criminal

activity as "all reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity 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."

According to Application Note Five of § 3C1.2, which was not

considered by the district court, a fleeing defendant is "accountable

for his own conduct and for conduct that he aided or abetted, coun-

seled, commanded, induced, procured, or willfully caused." We must

consider this commentary, which interprets or explains a guideline, as

authoritative unless it violates the Constitution or a federal statute, or

is inconsistent with, or a plainly erroneous reading of, that guideline.

See Stinson v. United States, 508 U.S. 36, 38 (1993).

According to the guidelines, the adjustments in Chapter Three,

such as the reckless endangerment enhancement of § 3C1.2, are to be

determined based upon the relevant conduct provisions of § 1B1.3

"unless otherwise specified." See USSG § 1B1.3(a). By stating that a

defendant is responsible for the conduct of others if he aided or abet-

ted, counseled, commanded, induced, procured, or willfully caused

that conduct, Application Note Five of § 3C1.2 limits the defendant’s

responsibility for the actions of another. This limitation thus delin-

eates the instances in which the relevant conduct provisions of

§ 1B1.3 apply. See United States v. Cook, 181 F.3d 1232, 1235-36

(11th Cir. 1999).

We thus join the Eleventh, Tenth, and Ninth Circuits in reasoning

that "some form of direct or active participation which is consistent

with Application Note Five is necessary in order for § 3C1.2 to

apply." United States v. Cook, 181 F.3d 1232, 1235 (11th Cir. 1999);

see United States v. Conley, 131 F.3d 1387, 1390-91 (10th Cir. 1997)

("reasonable foreseeability of the reckless behavior at issue is not

enough by itself to support a § 3C1.2 enhancement"); United States

v. Lipsey, 62 F.3d 1134, 1136-37 (9th Cir. 1995) (rejecting § 3C1.2

UNITED STATES v. CHONG 5

enhancement where district court relied solely on reasonable foreseea-

bility of high speed getaway and requiring more specific finding

under Application Note Five standard); see also United States v. Hall,

71 F.3d 569, 571-72 (6th Cir. 1995) (suggesting that reasonable fore-

seeability may not be enough for § 3C1.2 enhancement when defen-

dant was under control of co-defendant who drove getaway vehicle).

See also United States v. Harrison, 272 F.3d 220, 223 (4th Cir. 2001)

(applying an aided and abetted standard to a § 3C1.2 enhancement).

The record in this case is incomplete as to whether Miss Chong’s

own conduct met the applicable standard set forth in Application Note

Five. Although the district court adopted the factual findings of the

presentence report, relevant details of the flight are not in the record

and we are unable to ascertain whether Miss Chong aided or abetted,

counseled, commanded, induced, procured, or willfully caused Fair-

clough’s reckless flight and thus would be subject to the two level

enhancement. Accordingly, we vacate Miss Chong’s sentence and

remand to the district court for resentencing based on a determination

of whether she aided or abetted, counseled, commanded, induced,

procured, or willfully caused her co-defendant to engage in conduct

that satisfies the reckless standard of § 3C1.2.

IV.

Miss Chong next challenges her convictions on the grounds that the

federal drug statutes are unconstitutional in light of the Apprendi rule

that any factor other than a prior conviction which increases defen-

dant’s sentence beyond the statutory maximum must be submitted to

the jury and proved beyond a reasonable doubt. See United States v.

Apprendi, 530 U.S. 466, 490 (2000). A panel of this court recently

"join[ed] the Fifth, Sixth, Seventh, and Tenth Circuits in holding that

§ 841 is not facially unconstitutional." United States v. McAllister,

272 F.3d 228, 232 (4th Cir. 2001). It is well settled that "a panel of

this court cannot overrule, explicitly or implicitly, the precedent set

by a prior panel of this court. Only the Supreme Court or this court

sitting en banc can do that." Mentavlos v. Anderson, 249 F.3d 301,

312 n.4 (4th Cir. 2001) (citing Bell v. Jarvis, 236 F.3d 149, 159 (4th

Cir. 2000) (en banc)). Accordingly, we affirm Miss Chong’s convic-

tions under the federal drug statutes.

6 UNITED STATES v. CHONG

V.

For the foregoing reasons, we affirm Miss Chong’s convictions;

however, we conclude that the district court erred in applying the

§ 3C1.2 enhancement without considering Application Note Five. We

therefore vacate Miss Chong’s sentence and remand for resentencing

in which the district court will consider that same Application Note

Five should it apply § 3C1.2.

AFFIRMED IN PART, VACATED AND

REMANDED IN PART WITH INSTRUCTIONS