United States v. Richard Mukes

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0360p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

> No. 20-5134

v. │

│

│

RICHARD MUKES, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 2:19-cr-20095—Mark S. Norris, Sr., District Judge.

Argued: October 20, 2020

Decided and Filed:November 17, 2020

Before: MERRITT, MOORE, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Robert L. Thomas, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis,

Tennessee, for Appellant. Raney Irwin, UNITED STATES ATTORNEY’S OFFICE, Memphis,

Tennessee, for Appellee. ON BRIEF: Robert L. Thomas, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Raney Irwin, UNITED STATES

ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. The district court sentenced Richard Mukes to

a term of 120 months’ imprisonment after he pled guilty to possessing a firearm as a convicted

No. 20-5134 United States v. Mukes Page 2

felon. See 18 U.S.C. § 922(g)(1). Mukes appeals his sentence because he believes that the

district court improperly calculated his sentencing guidelines range. Specifically, he argues that

the district court erred in applying a four-point enhancement for using or possessing a firearm in

connection with another felony offense, U.S.S.G. § 2K2.1(b)(6)(B), and in applying a two-point

enhancement for reckless endangerment during flight, § 3C1.2. Mukes further contends that the

district court erred in denying him a two-point reduction for acceptance of responsibility,

§ 3E1.1. Because the government failed to demonstrate that either enhancement was applicable

on this record, the district court erred in applying them. We therefore vacate Mukes’s sentence

and remand the case to the district court for resentencing on the existing record with instructions

not to apply either enhancement. In light of our decision on the enhancements, the district court

should consider whether Mukes may receive the two-point reduction for acceptance of

responsibility.

I.

Mukes was arrested after a dispute with his girlfriend, Victoria Davis. He was charged in

a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1), to which he pled guilty. While Mukes does not dispute that he unlawfully possessed

a firearm, he does dispute the facts surrounding the charge, which are relevant for the sentencing

enhancements at issue in this appeal.

At the time of the incident, Mukes was living with Davis in a home owned by Davis’s

mother. In the early morning hours of October 5, 2018, Davis and Mukes had an argument.

There are two accounts of what happened next. Davis told police that around 2:20 a.m. Mukes

retrieved a firearm that he kept in the shared residence, exited the home, and that Davis locked

the door behind him. Davis said that Mukes subsequently fired the gun into the air. Davis

telephoned the police and Mukes left the scene. According to Davis, Mukes returned a half hour

later and attempted to enter the home. Davis said that when she refused to let Mukes inside, he

again fired the gun into the air, firing a total of four shots that night. Davis telephoned the police

a second time. The record of arrest stated that Davis remained inside her home for the duration

of the altercation. Davis said that her mother, brother, and two nephews were also in the home

when this incident occurred.

No. 20-5134 United States v. Mukes Page 3

Mukes disputed Davis’s version of events. He denied ever firing the weapon or

threatening Davis. According to Mukes, he and Davis had argued about their relationship earlier

that night and Davis told him to come retrieve his clothing. Mukes said that his cousin drove

him to Davis’s home. Mukes denied entering the home, stating that Davis would not let him in.

He claimed that he already had the firearm in his possession, maintaining that Davis knew that

he always carried it on his person, but denied brandishing or firing it. Mukes said that Davis

came outside and they argued briefly. According to Mukes, Davis said that she was not “going

to stand out here and talk to [him]” and went inside to call the police because she knew he had a

gun on his person. DE 48, Sent. Tr., Page ID 143. By this point, Mukes said that his cousin had

left with the car, so he walked away from the house. Mukes agreed that he returned a short while

later, in a second attempt to retrieve his clothing. He denied firing the gun at any point that

night.

The events surrounding Mukes’s arrest are also disputed, and the government has not

provided a consistent narrative. The government and Mukes agree that when police responded to

Davis’s second call, officers observed Mukes walking away from the residence while holding a

black handgun. They also agree that officers told Mukes to drop the gun. And they agree that

Mukes fled from the officers before being caught shortly thereafter. Officers recovered the

handgun, which was loaded. But the parties disagree about when precisely Mukes dropped the

gun. The record of arrest stated that Mukes threw the weapon while fleeing from the police. The

affidavit of complaint stated that Mukes dropped the firearm before he began to flee. The

government provided no witness testimony clarifying this discrepancy. Mukes’s testimony

supported the version of events described in the affidavit of complaint: he repeatedly insisted that

he dropped the gun in response to police commands before turning to flee the scene.

At the plea hearing, Mukes admitted that he possessed the firearm but disputed the

government’s recitation of the facts regarding his alleged discharge of the gun and subsequent

flight. His counsel noted that these contested facts would implicate “sentencing issues that may

result in enhancements.” DE 49, Change Plea Hr’g, Page ID 233. The government accepted

Mukes’s stipulation that he knowingly possessed the firearm as sufficient for purposes of the

guilty plea.

No. 20-5134 United States v. Mukes Page 4

The presentence report adopted the version of events in the record of arrest—that Mukes

had dropped the firearm after he had already begun to flee—without mentioning the conflicting

affidavit. The presentence report calculated Mukes’s base offense level at 24, due to his prior

felony convictions, and recommended two enhancements. The first was a four-point

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for using a firearm in connection with another

felony offense. The stated basis for this enhancement was discharging the firearm and pending

charges for “Reckless Endangerment-Deadly Weapon” in state court. The presentence report

also recommended a two-point enhancement under U.S.S.G. § 3C1.2 for recklessly creating a

substantial risk of death or serious bodily injury to another person while fleeing from a law

enforcement officer. The stated basis for this enhancement was that Mukes threw the firearm

while fleeing. With a total offense level of 30 and a criminal history category of III, the

recommended sentencing guidelines range was 121 to 151 months imprisonment. Since the

statutory maximum for violations of 18 U.S.C. § 922(g)(1) is 10 years, the guideline term of

imprisonment was 120 months. See § 924(a)(2); U.S.S.G. § 5G1.1(a). Mukes subsequently

objected to the presentence report, raising the same disputed facts.1

Mukes and the government requested an evidentiary hearing because they were unable to

resolve the disputed facts regarding the discharge of the firearm and Mukes’s flight.2 The

government introduced Davis’s statement to police on the night of the arrest, the arrest record,

the affidavit of complaint, the Shelby County sheriff’s office gang log, and several recordings of

jailhouse telephone calls between Mukes and Davis. On the telephone calls, Davis can be heard

yelling at Mukes that he had threatened her and her family, hit her in the face, put a gun to a

1

Mukes also disputed the presentence report’s conclusion that he was a member of a gang, apparently to

avoid placement in prison around the gang members. Much of the government’s focus during the sentencing

hearing involved whether Mukes was an active gang member, which the government admitted did not affect the

calculation of the sentencing guidelines.

2

Before either side had presented evidence at the evidentiary hearing, the district court stated that it was

“inclined to agree” with the government’s version of events, but that it would “try to keep an open mind here as [it]

entertain[ed] the proof.” DE 48, Sent. Tr., Page ID 133. As we have “repeatedly noted, ‘great care must be taken by

a judge to always be calmly judicial, dispassionate and impartial.’” Anderson v. Sheppard, 856 F.2d 741, 745 (6th

Cir. 1988) (quoting United States v. Hickman, 592 F.2d 931, 933 (6th Cir. 1979)). “We require not only an absence

of actual bias, but an absence of even the appearance of judicial bias.” Id. at 746. Although the district court made

no further comments indicating an absence of impartiality during the hearing, its remarks at the outset are a

troubling departure from the appearance of impartiality that judges must maintain at all times.

No. 20-5134 United States v. Mukes Page 5

person’s head, and had fired the gun multiple times that night. Mukes cried on the calls but did

not explicitly deny Davis’s allegations, although he denied them at the hearing. Mukes testified

at the hearing, relaying his account of the night’s events as detailed above.

The government argued that the four-point enhancement for using a firearm in connection

with another felony offense was justified because Mukes had discharged the firearm into the air

four times, which constituted felony reckless endangerment under Tennessee law. The

government pointed to Davis’s statement and Mukes’s silence on the calls as evidence sufficient

to support the enhancement. Mukes argued that the government had not met its burden to show

that the enhancement applied based on that evidence alone.

The government also argued that the two-point enhancement for reckless endangerment

during flight was appropriate because Mukes had thrown down the firearm while being pursued

by police. The government argued that either Mukes’s flight with the firearm or his dropping of

it would each independently provide the factual basis for the enhancement. While the

government acknowledged that Mukes stated that he dropped the weapon upon command before

fleeing, the government argued that the “more detailed” record of arrest “clearly shows that

[Mukes] was ordered to throw the weapon down and did not,” and instead “threw” the weapon as

he was being chased. DE 48, Sent. Tr., Page ID 172. The government did not mention the

conflicting affidavit of complaint, which was signed by the same officer who wrote the unsworn

record of arrest. Mukes argued that the government failed to meet its burden to support the

enhancement, noting that the only sworn document in the record—the affidavit of complaint—

supported his account that he dropped the firearm when ordered, before fleeing. Mukes also

argued that the government failed to show that there was a substantial threat because the

government put on no evidence about the presence of bystanders in the vicinity or any danger to

the officers.

Finally, the government opposed granting Mukes any reduction for acceptance of

responsibility because Mukes “frivolously contested” firing the gun, threatening Davis, and

throwing the gun on the ground while fleeing police. Mukes argued that he should receive the

reduction based on his previously filed statement accepting responsibility for the offense charged

in the indictment. Since the evidence of whether he had discharged the firearm was his word

No. 20-5134 United States v. Mukes Page 6

against Davis’s unsworn recording and police statement, Mukes argued that he should not be

penalized for contesting those facts when he accepted responsibility for the crime with which he

was charged.

The district court concluded that the four-point enhancement for using or possessing a

firearm in connection with another felony was appropriate, although it is not clear on what

grounds. It stated that Mukes’s indictment in state court was “sufficient in and of itself ” to

justify the enhancement, but, even if insufficient, that the government established the necessary

proof that Mukes had discharged the gun. DE 48, Sent. Tr., Page ID 186.

The district court also concluded that the two-point enhancement for reckless

endangerment during flight was appropriate, regardless of “whether the gun was dropped upon

the police officer’s command or simply dropped or thrown by [Mukes] independently.” Id. at

187. “[I]n any event,” the court concluded, the government “had established by a preponderance

of the evidence . . . that [Mukes] recklessly created a substantial risk of death or serious bodily

injury to another person in the course of fleeing from law enforcement.” Id. The court did not

identify any person whom Mukes had placed at substantial risk of death or injury.

Finally, the district court declined to grant Mukes a two-point reduction for acceptance of

responsibility. Since the court concluded that the government had established its version of the

facts by a preponderance of the evidence, the court thought that a reduction for acceptance of

responsibility was inappropriate.

After considering the 18 U.S.C. § 3553 factors, the court sentenced Mukes to the

statutory maximum of 120 months imprisonment. Mukes appealed.

II.

Mukes raises three issues on appeal. First, he argues that the district court erred in

applying the U.S.S.G. § 2K2.1(b)(6)(B) enhancement for using or possessing a firearm in

connection with another felony because the government did not meet its burden to show that

Mukes committed “another felony offense.” Second, Mukes argues that the district court erred

in applying the § 3C1.2 enhancement for reckless endangerment during flight because the

No. 20-5134 United States v. Mukes Page 7

government did not establish that Mukes dropped or threw a weapon while fleeing from police.

Third, Mukes argues that the district court erred in denying him the two-point reduction for

acceptance of responsibility under § 3E1.1 when he had accepted responsibility for the charged

offense but challenged the facts surrounding the two sentencing enhancements. Because we

agree that the district court erred in applying the two sentencing enhancements, we vacate

Mukes’s sentence and remand the case to the district court for resentencing on the existing

record. On remand, the district court is not to apply the § 2K2.1(b)(6)(B) enhancement because

Mukes’s alleged conduct does not amount to a felony under Tennessee law. The district court

also may not apply the § 3C1.2 enhancement because the government failed to meet its burden of

proof, and we see no reason to allow the government an additional opportunity to make its case.

In light of our decision on the two enhancements, the district court should consider whether

Mukes may receive the two-point reduction for acceptance of responsibility, § 3E1.1.

A.

First, Mukes argues that the district court erred in applying the four-point enhancement

for using or possessing a firearm in connection with another felony offense. We agree. Because

there was no evidence in the record that Mukes had committed “another felony offense,” it was

error for the district court to apply this sentencing enhancement.

The enhancement under U.S.S.G. § 2K2.1(b)(6)(B) increases the defendant’s offense

level by four “[i]f the defendant . . . used or possessed any firearm or ammunition in connection

with another felony offense.” For this enhancement to apply, the firearm must have “facilitated,

or had the potential of facilitating, another felony offense.” § 2K2.1 cmt. n.14(A). “Another

felony offense” is any “federal, state, or local offense” that is “punishable by imprisonment for a

term exceeding one year, regardless of whether a criminal charge was brought, or a conviction

obtained.” Id. cmt. n.14(C). The burden of proof for this enhancement falls on the government.

United States v. Goodman, 519 F.3d 310, 321 (6th Cir. 2008). We review the district court’s

legal interpretation of the sentencing guidelines de novo and its factual findings under the clearly

erroneous standard. United States v. Byrd, 689 F.3d 636, 639 (6th Cir. 2012). We give “‘due

deference’ to the district court’s determination that the firearm was used or possessed ‘in

connection with’ the other felony, thus warranting the application of the . . . enhancement.”

No. 20-5134 United States v. Mukes Page 8

United States v. Seymour, 739 F.3d 923, 929 (6th Cir. 2014) (alteration in original) (quoting

United States v. Taylor, 648 F.3d 417, 432 (6th Cir. 2011)).

The purported “other felony” Mukes committed was the Tennessee felony offense of

reckless endangerment with a firearm, because he “fired the pistol.” CA6 R. 23, Appellee Br., at

14. Mukes had been charged in Shelby County, Tennessee with a Class E felony for “Reckless

Endangerment- Deadly Weapon,” in violation of Tenn. Code Ann. § 39-13-103. Tennessee v.

Mukes, C1904576, Shelby County Criminal Justice System Portal (indicted May 10, 2019). That

charge was later dismissed by entry of an order of nolle prosequi. Id. (disposed of Oct. 7, 2020).

The government has repeatedly and consistently stated that Mukes committed this state felony

when he fired four shots into the air and that this state charge served as the predicate felony to

justify the enhancement. The district court agreed to apply the enhancement, finding that the

Shelby County indictment was “sufficient in and of itself ” to justify the enhancement, and, even

if it was not sufficient, that the government established the necessary proof that Mukes had

discharged the gun. DE 48, Sent. Tr., Page ID 186.

The district court’s conclusion that the state court indictment was “sufficient in and of

itself ” was incorrect. A sentencing court may consider all relevant evidence, whether or not

such evidence would be admissible at trial, as long as it has “sufficient indicia of reliability to

support its probable accuracy.” U.S.S.G. § 6A1.3(a). But an indictment, standing alone, cannot

be used “as evidence that all conduct charged in the indictment occurred.” United States v.

Crowell, 997 F.2d 146, 149 (6th Cir. 1993). Instead, “due process requires . . . some evidentiary

basis beyond mere allegation in an indictment.” United States v. Smith, 887 F.2d 104, 108 (6th

Cir. 1989) (emphasis omitted). Therefore, it was error for the district court to rely solely on the

indictment in state court to establish that Mukes had used the firearm in the commission of

“another felony.”

In any event, the district court erred in applying this enhancement because Mukes did not

violate Tenn. Code Ann. § 39-13-103. Tennessee law is clear: a defendant must do more than

fire a gun into the air to be guilty of this felony. Because the record is devoid of evidence that

anyone was in the vicinity when Mukes allegedly discharged the gun, he could not have violated

§ 39-13-103. Therefore, the enhancement under § 2K2.1(b)(6)(B) is inapplicable.

No. 20-5134 United States v. Mukes Page 9

Under Tennessee law, a person commits reckless endangerment if he “recklessly engages

in conduct that places or may place another person in imminent danger of death or serious bodily

injury.” Tenn. Code Ann. § 39-13-103(a). The offense is a felony when committed with a

deadly weapon. Id. § 39-13-103(b)(2). “Imminent danger” occurs when a person is “placed in a

reasonable probability of danger as opposed to a mere possibility of danger.” State v. Payne,

7 S.W.3d 25, 28 (Tenn. 1999) (citing State v. Fox, 947 S.W.2d 865, 866 (Tenn. Crim. App.

1996)). Tennessee law requires that when the victim is the “public at large,” the government

must show that there was at least one person within the “zone of danger.” Id. The “zone of

danger” consists of “that area in which a reasonable probability exists that the defendant’s

conduct would place others in imminent danger of death or serious bodily injury if others were

present in that zone or area.” Id.

In Fox, the defendant had been convicted of reckless endangerment because he fired a

pistol into the air or at a tree while standing outside an apartment building. 947 S.W.2d at 865.

The Tennessee appeals court found insufficient evidence to sustain the conviction because there

“was no testimony that anyone was either in the tree being fired upon or outside the apartment

building in the immediate vicinity of the [defendant].” Id. Indeed, the court held that the “mere

discharge of a weapon into the air . . . standing alone, is not sufficient to constitute commission

of reckless endangerment.” Id. at 866.

We considered this Tennessee statute as the basis for a § 2K2.1(b)(6)(B) enhancement in

two similar cases. In both cases, the defendant was alleged to have fired a gun into the air. See

United States v. Maxon, 250 F. App’x 129, 133 (6th Cir. 2007); United States v. Lester, 238 F.

App’x 80, 85 (6th Cir. 2007). And in both cases, we determined that the enhancement was

appropriate based on the Tennessee statute because the district court had found other people to

be within the “zone of danger.” Maxon, 250 F. App’x at 133–34 (“Defendant’s conduct placed

the officers and others outside ‘in a reasonable probability of danger’ when he fired the rifle into

the air in an area where others, including the arresting officer, were present.”); Lester, 238 F.

App’x at 86 (“Based on the evidence of the children’s close proximity to Lester when he fired

the gun, we will defer to the district court’s determination that the bystanders were in imminent

danger of death or serious bodily injury.”). Both Maxon and Lester held that Fox was “readily,”

No. 20-5134 United States v. Mukes Page 10

Maxon, 250 F. App’x at 133, and “easily distinguishable” Lester, 238 F. App’x at 86, because

officers, passersby, or children were in the vicinity when the defendants fired their weapons into

the air.

This case is not distinguishable from Fox. It is Fox. There is no evidence in the record

that anyone was in the vicinity when Mukes allegedly fired four shots into the air between two

and three a.m. In the government’s version of events, Davis remained inside the home. See Fox,

947 S.W.2d at 865 (noting that while there was an apartment building in the immediate vicinity,

the defendant was not guilty under § 39-13-103 because no one was outside the building).

And unlike in Maxon, there were no police officers on the scene at the time. Because the

government did not present evidence that there was anybody within the “zone of danger” that

faced a “reasonable probability” of “imminent danger of death,”3 the district court’s conclusion

that Mukes violated the statute by firing the gun into the air was incorrect.4 See Payne,

3

At oral argument, we first raised the issue of this line of Tennessee cases with defense counsel, while

advising the Assistant U.S. Attorney that we wanted her to have an opportunity think about them too. Oral

Argument at 2:17–3:49. When we asked the AUSA about the cases during her argument, her response was that

“under 14(A) of the application note, if the firearm had the potential to facilitate another felony offense, then it

doesn’t matter whether the criminal charge was brought or a conviction was obtained on that.” Id. at 12:16–12:31.

It is true that a defendant need not face charges or be convicted of the other felony offense for the enhancement to

apply. See U.S.S.G. § 2K2.1 cmt. n.14(C). But the “felony must be specifically identifiable” and the government

“must then demonstrate that the defendant used a firearm ‘in connection with’ that offense by showing that ‘the

weapon facilitated or potentially facilitated the felonious conduct or emboldened the defendant during the felonious

conduct.’” United States v. Bullock, 526 F.3d 312, 317 (6th Cir. 2008) (quoting United States v. Carter, 355 F.3d

920, 925 (6th Cir. 2004)). As we pointed out to government counsel, that requires the existence of an underlying

felony offense, as opposed to conduct that does not constitute a felony under state law. The mere potential of

committing some unidentifiable future felony is insufficient to sustain the enhancement. Counsel’s response to the

question simply misstated the law.

4

The district court may have also believed that the enhancement was warranted because Mukes violated

Tenn. Code Ann. § 39-13-103 even without discharging the firearm. DE 48, Sent. Tr., PageID 186 (stating that “the

discharge of the firearm in terms of application of 2K2.1(b)(6)(b) is immaterial”). But this conclusion would also

constitute error. At sentencing, the government made references to telephone calls in which Davis said that Mukes

had punched her and pointed a firearm at a person called “Man,” although it is unclear when this may have occurred.

Nothing in the record connects these incidents temporally or otherwise to the offense charged here. And the

government did not rely on either of these incidents to satisfy the “other felony” requirement; the government relied

instead on the allegation that Mukes discharged the firearm into the air. To the extent that the district court

considered the bare allegations in the calls, they would not have supported the court’s finding that Mukes violated

Tenn. Code Ann. § 39–13–103. There is no evidence that Mukes punched Davis while using or possessing a

firearm. Cf. United States v. Suggs, 423 F. App’x 501, 505 (6th Cir. 2011) (holding enhancement appropriate where

the district court “found that defendant possessed a loaded firearm, cocked it, assaulted [a woman] while holding the

firearm, and would have used it to hurt someone had it not been taken from him” which was “enough to establish a

connection between the firearm and reckless endangerment, Tenn. Code Ann. § 39–13–103”). Likewise, pointing a

firearm at “Man” on some unspecified occasion is, without more, unlikely to satisfy the requirements for reckless

No. 20-5134 United States v. Mukes Page 11

7 S.W.3d at 28. Since Mukes did not commit “another felony offense,” the enhancement under

§ 2K2.1(b)(6)(B) is inapplicable.

B.

Mukes also argues that the district court erred in applying the two-point sentencing

enhancement for reckless endangerment during flight. We agree. Since the facts available to the

district court are inadequate to support a finding by the preponderance of the evidence that

Mukes’s conduct satisfied the requirements for the § 3C1.2 enhancement, we vacate his sentence

and remand for resentencing without it.

The § 3C1.2 enhancement applies “[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.” 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.

United States v. Dial, 524 F.3d 783, 786–87 (6th Cir. 2008) (internal citations omitted). Our

case law requires the government to “link a specific aspect of the flight . . . with a specific risk.”

United States v. Brooks, 763 F. App’x 434, 441 (6th Cir. 2019). And the “government ha[s] the

burdens of production and persuasion” to prove facts that justify a sentencing enhancement.

Goodman, 519 F.3d at 323 (quoting United States v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir.

1995)). The government provided three theories to support the application of the enhancement

in this case: (1) fleeing with a firearm created a substantial risk of harm, (2) the firearm could

have discharged when Mukes dropped it, and (3) running after leaving a gun in a public place

risked others recovering it. The district court applied the enhancement without specifying which

theory of reckless endangerment it credited.

endangerment under Tennessee law. See United States v. Clark, 403 F. App’x 12, 15 (6th Cir. 2010) (expressing

skepticism that merely “show[ing] up with a gun and cock[ing] it” would be sufficient to constitute reckless

endangerment under Tennessee law). Cf. State v. Campbell, No. W2005-01418-CCA-R3-CD, 2006 WL 3147050

(Tenn. Crim. App. Nov. 3, 2006) (upholding conviction under § 39–13–103 where defendant aimed gun and shot

victim).

No. 20-5134 United States v. Mukes Page 12

We have said that “significant deference to the district court is required” when

considering the reckless endangerment enhancement because “[w]hile the question of what

constitutes endangerment is a mixed question of law and fact, it is highly fact-based.” United

States v. Hazelwood, 398 F.3d 792, 796 (6th Cir. 2005). However, for the reasons discussed

below, the government failed to demonstrate that the enhancement applied to Mukes, and the

district court therefore erred by applying it.

1.

The government’s first theory of reckless endangerment was that by fleeing with a

firearm, Mukes created a dangerous situation because the officers could have fired shots in

response to observing him fleeing with a weapon in hand. “Drawing a gun in front of officers,”

creating “a substantial risk that officers would open fire and perhaps injure other officers or

bystanders,” is a theory of reckless endangerment “supported by our caselaw.” Brooks, 763 F.

App’x at 440. Because officers cannot “know whether a firearm is loaded or unloaded, pulling

out any firearm in view of police officers while in flight creates a risk that officers might fire

their weapons.” Id.

The district court was presented with three pieces of evidence regarding Mukes’s flight

from the officers. First, the government submitted the affidavit of complaint, which included the

arresting officer’s sworn statement that Mukes had dropped the firearm before fleeing. Next, the

government introduced the unsworn record of arrest, which stated that Mukes ignored police

commands to drop the firearm, turned to flee, and threw the firearm during his flight. Finally,

Mukes testified at sentencing that he complied with the officer’s commands and dropped the

firearm before turning to flee the scene.

The district court did not resolve this factual dispute, stating that it was “not clear to the

Court whether the gun was dropped upon the police officer’s command or simply dropped or

thrown by the Defendant independently.” DE 48, Sent. Tr., Page ID 187. Yet the court still

concluded that, either way, the enhancement was applicable. According to the version of events

supported by the affidavit of complaint and Mukes’s testimony, Mukes no longer had a weapon

No. 20-5134 United States v. Mukes Page 13

when he fled from the officers.5 But the theory that flight while brandishing a firearm created “a

risk that officers could have reasonably opened fire,” CA6 R 23, Appellee Br., at 23, depended

on a factual finding that Mukes actually fled while holding a firearm.6 By determining that it

was “not clear” based on the government’s evidence when Mukes dropped the firearm, the

district court effectively decided that the government had not met its burden of proof on its first

theory of reckless endangerment. It was therefore error to apply the enhancement on the

government’s first theory.

2.

The government’s second theory at sentencing was that Mukes created a dangerous

situation by dropping the gun because it “could have fired [on impact] and someone could have

been hit.” DE 48, Sent. Tr., Page ID 176. We have recognized this theory of reckless

endangerment during flight under certain circumstances. In United States v. Howard, we said

that the “risk created by throwing a cocked and loaded gun is obvious,” because “when a person

throws a loaded gun on the ground while running, the weapon [could] easily [be] discharged.”

301 F. App’x 446, 448–49 (6th Cir. 2008) (alterations in original). However, we have declined

to apply the enhancement on this basis where “there is no indication in the record that [the

defendant’s] firearm was actually cocked when he tossed it.” United States v. May, 430 F.

App’x 520, 526 (6th Cir. 2011).

The existing record is insufficient to establish that Mukes’s dropping the firearm

presented a risk of the gun discharging. While the presentence report notes that the firearm was

loaded at the time with a round in the chamber, there is no evidence in the record, nor did the

5

The government incorrectly stated that “Mukes does not dispute that he threw a gun while fleeing from

police after they ordered him to stop and drop the weapon.” CA6 R. 23, Appellee Br., at 23. As Mukes pointed out,

he has “repeatedly disputed that he threw a gun while fleeing from police, asserting instead that he dropped the

weapon in compliance with officers’ commands prior to fleeing.” CA6 R. 25, Reply Br., at 3.

6

We are also skeptical of the government’s argument at the sentencing hearing that the enhancement can

apply to mere flight, without some other showing of reckless conduct. See DE 48, Sent. Tr., Page ID 175. We note

that our sister circuits have declined to apply the enhancement in such circumstances. See United States v. Reyes-

Oseguera, 106 F.3d 1481, 1484 (9th Cir. 1997) (“[I]nstinctive flight alone will not support the enhancement, nor

will the armed agent’s pursuit.”); United States v. Gould, 529 F.3d 274, 277 (5th Cir. 2008) (declining to apply the

enhancement when the only evidence in the record was that the defendant fled from armed officers instructing him

to stop).

No. 20-5134 United States v. Mukes Page 14

district court find, that the “firearm was actually cocked when [Mukes] tossed it.” May, 430 F.

App’x at 526.

Additionally, the government did not meet its burden of proof to show that others may

have been placed in danger. See Dial, 524 F.3d at 787 (requiring government to show that the

defendant recklessly created a substantial risk “to another person”). The government asserted at

sentencing that Mukes placed himself, bystanders, and police in danger. But the enhancement

does not apply for a risk of injury to the defendant. See U.S.S.G. § 3C1.2 cmt. n.4. As Mukes

pointed out at sentencing, there is no evidence in the existing record about the presence of

bystanders, potential or otherwise. Cf. Hazelwood, 398 F.3d at 796 (upholding enhancement

where district court found that there were “numerous other vehicles on the road” during the high-

speed chase and “at least one other driver . . . was endangered” when “forced to leave the

pavement as [the defendant] abruptly turned”). And there is no evidence in the record that the

officers were placed in danger when Mukes dropped the gun7—a gun that may not have been

capable of discharging in its condition. Indeed, the gun did not discharge when it hit the ground.

Further, the unresolved timing issue of when Mukes dropped the firearm is important to

the government’s second theory of reckless endangerment. If Mukes dropped the firearm in

response to police commands before fleeing, this enhancement likely would not be applicable, at

least in the absence of other countervailing evidence. To hold otherwise would present the

defendant with an untenable choice: drop the firearm upon police orders, resulting in additional

prison time under the government’s second theory, or refuse to drop the weapon, risk being shot,

and still receive additional prison time under the government’s first theory—brandishing a

firearm during flight. Section 3C1.2 does not require this result.

Without evidence in the record to support the government’s theory that dropping the gun

created a substantial risk of death or serious bodily injury to another person, the district court

erred in applying the enhancement.

7

By contrast, in Dial, the district court applied the enhancement after hearing testimony from the pursuing

officer that he had fled into his vehicle to avoid being hit by the defendant during a high-speed chase. 524 F.3d at

788. We concluded that the officer “[c]learly . . . was the specific other person at risk on these facts.” Id. The

record in this case is devoid of those kinds of details that would support the enhancement.

No. 20-5134 United States v. Mukes Page 15

3.

On appeal, the government asserts a third theory of reckless endangerment: running

away from a gun discarded in a public place created a substantial risk to another person.

“The idea that a discarded gun creates a substantial risk of serious bodily harm to another person

is well supported by caselaw.” Brooks, 763 F. App’x at 440 (declining to apply enhancement on

this basis where firearm was unloaded). In United States v. Stafford, we upheld application of

the enhancement where the defendant had discarded a loaded firearm behind a restaurant “where

employees regularly took the restaurant’s trash.” 721 F.3d 380, 403 (6th Cir. 2013).

At sentencing in that case, one of the pursuing officers described the presence of “other

pedestrians” in the area when the defendant had discarded the gun. Id. We concluded that there

was a “significant possibility that a bystander could have come across the loaded weapon and

been hurt, or used it to hurt someone else.” Id. Likewise, in May, we determined that it was

“reckless to discard a loaded firearm in a public-housing complex where it would likely be found

by someone.” 430 F. App’x at 526–27 (noting that the defendant “ha[d] not contradicted that

factual finding”); see also Howard, 301 F. App’x at 449 (“[T]he risk created by throwing a

loaded gun near other people is . . . ‘substantial.’”); United States v. Farrow, 754 F. App’x 417,

421 (6th Cir. 2018) (enhancement appropriate where officers “need[ed] to tackle and disarm [a

different] suspect who attempted to pick up the [discarded] gun”). We have also upheld

application of the enhancement where the defendant discarded a loaded firearm in a “residential

neighborhood” and police had to conduct a search to locate it. See United States v. Carter,

817 F. App’x 132, 134 (6th Cir. 2020); United States v. Tasaki, 510 F. App’x 441, 445 (6th Cir.

2013).

While this argument presents a well-recognized theory of reckless endangerment, the

government did not press it at the sentencing hearing. We have declined to apply this

enhancement when “the record does not indicate that the district court considered [a particular

theory] as a basis for applying [it].” May, 430 F. App’x at 526.

In any event, the existing record is insufficient to support this theory of reckless

endangerment. The only information provided about the nature of the place in which the gun

was discarded was a cursory mention that the area was a “residential and commercial area,” in

No. 20-5134 United States v. Mukes Page 16

response to Mukes’s objections to the presentence report. DE 41, 2d Add. to PSR, Page ID 97.

Unlike our decisions upholding the enhancement on this theory, there is no evidence in the

record about any potential risk that a bystander might have come across the weapon during the

brief encounter between Mukes and the police, particularly in light of the late hour of arrest,

around three a.m. And unlike Carter and Tasaki, no search was needed to recover the firearm

because Mukes dropped it in plain view of the police officers. In short, the existing record is

inadequate to support the government’s theory that running from the discarded firearm created a

substantial risk of harm.

C.

The government failed to demonstrate that the § 2K2.1(b)(6)(B) and the § 3C1.2

enhancements were applicable on this record. The district court, therefore, erred in applying

them. Because “[n]o special circumstances justified, or even explained, the government’s failure

to sustain [its] burdens” at sentencing, we remand the case for resentencing on the existing

record. Goodman, 519 F.3d at 323 (quoting Leonzo, 50 F.3d at 1088); see also United States v.

Baker, 559 F.3d 443, 455 n.10 (6th Cir. 2009) (holding that an intervening Supreme Court

decision qualified as a “special circumstance,” but the government’s “fail[ure] to offer factual

evidence” did not). We see no reason why the government “should get a second bite at the

apple” on remand, Goodman, 519 F.3d at 323, since the “government was entitled to only one

opportunity to present evidence on [these] issue[s].” United States v. Gill, 348 F.3d 147, 156

(6th Cir. 2003). And because the existing record does not support either enhancement, the

district court is not to apply them on remand.

D.

Finally, Mukes argues that the district court erred by denying him the two-point reduction

for acceptance of responsibility. The sentencing guidelines provide that “[i]f the defendant

clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by

2 levels.” U.S.S.G. § 3E1.1(a). “Entry of a plea of guilty . . . combined with truthfully admitting

the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying

any additional relevant conduct . . . will constitute significant evidence of acceptance of

No. 20-5134 United States v. Mukes Page 17

responsibility.” Id. cmt. n.3. In determining whether to grant the reduction, the district court

may consider whether the defendant “falsely denies, or frivolously contests, relevant conduct that

the court determines to be true.” Id. cmt. n.1(A). But a defendant’s unsuccessful challenge to

“relevant conduct . . . does not necessarily establish that it was either a false denial or frivolous.”

Id. In other words, crediting the government’s version of events over that of the defendant does

not, on its own, mean that the defendant may be denied the reduction. Rather, the district court

must specifically find that the defendant “falsely denie[d] or frivolously contest[ed]” the facts.

A mere determination that the government has met its burden of proof of the facts is not enough.

Mukes pled guilty and filed a statement accepting responsibility for the offense charged

in the indictment: illegally possessing a firearm. Because the district court erred in applying the

two enhancements, it should consider whether Mukes may receive the reduction for acceptance

of responsibility at resentencing. In view of our rulings with respect to the enhancements, there

remains a serious question whether any “relevant conduct” that Mukes could “falsely deny” or

“frivolously contest” still exists. That question, however, is properly resolved by the district

court.

III.

For the reasons stated, we vacate Mukes’s sentence and remand to the district court for

resentencing on the existing record, with instructions not to apply either the § 2K2.1(b)(6)(B) or

the § 3C1.2 enhancement. On remand, the district court should consider whether Mukes may

receive the two-point reduction for acceptance of responsibility, § 3E1.1.