APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D.C. No. CR-08-06-RAW-1).
Before HENRY, Chief Judge, and SEYMOUR and HOLMES, Circuit Judges.
Manuelito Osborne pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). In arriving at his 132-month sentence, the district court applied a two-level enhancement of the offense level pursuant to U.S.S.G. § 3C1.2 because Mr. Osborne "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer."
At the government's request, the district court departed upward an additional two levels. Noting that Mr. Osborne was involved in a high-speed car chase through a Wal-Mart parking lot, the district court offered two grounds for the upward departure. First, it explained that a high-speed car chase "always endanger[s] more than one person, meaning that it should automatically qualify for consideration for an upward departure." Rec. vol. II, at 39. Second, in the court's view, Mr. Osborne's particular high-speed car chase "put a huge number of people at risk." Id. at 41.
In this appeal, Mr. Osborne challenges the two-level departure. Although we are not persuaded by the district court's apparent view that all high-speed car chases will necessarily justify an upward departure, we agree that under the particular facts of Mr. Osborne's chase, the departure is more than warranted. We therefore affirm Mr. Osborne's sentence.
Around 5 p.m. on Wednesday, January 16, 2008, in Wagoner, Oklahoma, police attempted to arrest Manuelito Osborne. Mr. Osborne's wife had previously identified Mr. Osborne from a bank surveillance picture as the man who had robbed a local bank at gunpoint earlier that afternoon. Mr. Osborne was found driving a white 1990 Lincoln Continental out of a liquor store's parking lot. When a police officer tried to stop his car, Mr. Osborne drove away, with a police vehicle in pursuit.
The chase continued through a residential area with a speed limit of 25 miles per hour, where Mr. Osborne's car was observed driving over 75 miles per hour, and where he ran six or seven stop signs. Several other police vehicles joined the chase, which continued onto North U.S. Highway 69. When one officer maneuvered his car alongside Mr. Osborne's on the highway to try to block his car, Mr. Osborne turned into a parking lot shared between a Wal-Mart, a McDonald's, and a gas station.
Mr. Osborne circled the Wal-Mart parking lot four times, driving at approximately 50 miles per hour. He was pursued by approximately ten patrol cars, with sounding sirens and flashing emergency lights. During these laps around the parking lot, Mr. Osborne intermittently braked his Lincoln and swerved into the pursuing officers in an attempt to wreck their vehicles. He succeeded in part: Mr. Osborne's braking caused one officer's car to collide with the fleeing Lincoln, and Mr. Osborne wrecked his car into a different officer's car, injuring the Federal Bureau of Investigation agent sitting in the passenger seat.
In addition to the pursued car and the pursuing patrol cars, there were approximately 70 to 80 civilian vehicles in the Wal-Mart parking lot during the time of the chase, as well as pedestrians and shoppers. One testifying officer described seeing a man in the parking lot running away from the chase, and also a woman pushing a child in a shopping cart fleeing from the parking lot into the store. At some point during the chase in the parking lot, one police officer fired his gun.
After driving out of the Wal-Mart parking lot, Mr. Osborne led his police pursuers back onto U.S. Highway 69, this time heading south. At this point, one of the police officers was able to shoot out both of Mr. Osborne's rear tires. Mr. Osborne's car continued south, but a patrol car caught up to Mr. Osborne's slowing vehicle and performed a "pit maneuver," tapping the rear bumper of Mr. Osborne's Lincoln so that it spun out and crashed into the ditch on the side of the highway.
Mr. Osborne was then taken into custody and charged with one count of bank robbery in violation of 18 U.S.C. § 2113(a). Mr. Osborne pled guilty without a plea agreement.
The Presentence Report (PSR) recommended a two-level sentencing enhancement for reckless endangerment during flight. See U.S.S.G. § 3C1.2. Mr. Osborne did not ...