United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-1774

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United States of America, *

*

Plaintiff - Appellee, * Appeal from the United States

* District Court for the District 

v. * of Nebraska.

*

Juan P. Silva, *

*

Defendant - Appellant. *

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Submitted: December 15, 2010

Filed: January 25, 2011

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Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.

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MURPHY, Circuit Judge.

Juan Silva pled guilty to conspiracy to distribute more than 500 grams of

methamphetamine, in violation of 21 U.S.C. § 846, and the district court1

 sentenced

him to 151 months imprisonment. Silva appeals his sentence, arguing that the court

erred in applying a two level sentencing enhancement for reckless endangerment

during flight under U.S.S.G. § 3C1.2. We affirm.

1

 The Honorable Laurie Smith Camp, United States District Judge for the

District of Nebraska.
On November 19, 2008, police officers in Omaha, Nebraska arrested Sean

Thompson for distributing methamphetamine. Thompson agreed to cooperate with

the police and told the officers that Juan Silva was one of his sources. He arranged

to buy a large quantity of methamphetamine from Silva that same day at the Comfort

Inn Motel in Omaha. Some officers waited in a motel room with Thompson while

others were stationed outside in the parking lot. Thompson had asked Silva to meet

him in his motel room, but Silva refused to go inside after he arrived. Instead he kept

driving his truck around the parking lot and asked Thompson to meet him outside. 

The police decided to stop Silva in the parking lot. Officer Jeff Hunter was in

an unmarked minivan with officers Tony Foster and Paul Milone. Officer Edith

Andersen was driving an unmarked SUV in which officer Greg Carrico was a

passenger. When instructions were given to stop Silva, Hunter pulled his minivan in

front of the suspect's truck. Hunter got out of his van and yelled, "Police, show me

your hands." Although Hunter was dressed in plain clothes, he was wearing a

reflective police badge on his collar. Milone and Foster followed right after Hunter;

they were both wearing police raid gear, including tactical vests with police insignia

or lettering on the front and back. In addition, Milone wore a hat marked "Police". 

Hunter and Milone approached Silva with their guns drawn. 

Silva initially stopped, but he began to back up as officer Andersen attempted

to position her SUV to box in his truck. The two vehicles collided, and Andersen was

injured and unable to open her car door. Hunter was only four to five feet from Silva's

side window when the collision occurred, and he again yelled, "Police, show me your

hands." Silva looked at Hunter, then "scrunched down, threw the vehicle in drive and

sped away towards Officer Carrico." Carrico fired two shots at Silva's vehicle as he

drove and escaped across a roadway. He turned himself in three days later.

Silva was charged with and pled guilty to conspiracy to distribute more than

500 grams of methamphetamine, in violation of 21 U.S.C. § 846. A presentence

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investigation report (PSR) was prepared, which recommended that Silva receive a two

level sentencing enhancement for reckless endangerment during flight under § 3C1.2. 

Silva objected to the reckless endangerment enhancement, contending that he had not

realized that the people who attempted to stop him in the motel parking lot were police

officers. 

At sentencing the district court heard testimony from Officers Hunter and

Andersen and viewed several photographs taken from a motel surveillance video

before concluding that the government had satisfied its burden in respect to the §

3C1.2 enhancement. The court applied the two level enhancement for a total offense

level of 33, which with a criminal history category of II resulted in a guideline range

of 151 to 188 months. Silva was then sentenced to 151 months and five years

supervised release. 

On appeal, Silva challenges only the court's application of the reckless

endangerment enhancement. Section 3C1.2 provides that a defendant's offense level

should be increased by two levels 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." 

Silva first argues that the district court failed to make adequate findings in

support of its decision as required by Federal Rule of Criminal Procedure 32(i)(3)(B). 

Rule 32(i)(3)(B) provides that at sentencing, a district court "must–for any disputed

portion of the presentence report or other controverted matter–rule on the dispute or

determine that a ruling is unnecessary." At Silva's sentencing the district court

reviewed surveillance photographs and heard testimony about his flight and officer

Andersen's injuries. The court credited the testimony of the officers and rejected

Silva's contention that he had been unaware that the people who stopped him were

police officers. The court concluded that the government had satisfied its

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preponderance of the evidence burden. These findings were sufficient under Rule

32(i)(3)(B). 

Silva also argues that the district court erred in applying the § 3C1.2

enhancement because there was not sufficient evidence for the court to find that he

knew he was fleeing from law enforcement officers. "We review for clear error a

district court's findings with respect to reckless endangerment during flight." United

States v. Bazaldua, 506 F.3d 671, 674 (8th Cir. 2007). When the court's findings "are

based on the credibility of witnesses, they are virtually unreviewable." United States

v. Moore, 242 F.3d 1080, 1081 (8th Cir. 2001).

Silva concedes that he went to the motel to sell methamphetamine. The officer

testimony, found credible by the district court, related how Hunter had identified his

group as police at least twice after blocking Silva's vehicle in the motel parking lot. 

Silva was also instructed to get out of his truck by Hunter who was within four to five

feet and wearing a police badge on his shirt. Two of the other officers who

approached Silva's truck were wearing police raid gear with police insignia on the

front and back, and one was wearing a cap that read "Police". Silva nevertheless fled

from the officers and injured Andersen in the process. 

The district court found from the evidence that "Mr. Silva, or anyone in Mr.

Silva's situation, would have reason to suspect that these were law enforcement

officers coming to arrest him." We conclude that the court's findings were not clearly

erroneous, and the evidence was sufficient to support its application of the § 3C1.2

enhancement for reckless endangerment during flight. See Moore, 242 F.3d at 1082.

Accordingly, we affirm the judgment of the district court. 

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