FILED

United States Court of Appeals

Tenth Circuit

January 26, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 08-7121

MANUELITO RAMON OSBORNE,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. NO. CR-08-06-RAW-1)

Barry L. Derryberry, Research and Writing Specialist (Julia L. O’Connell, Federal

Public Defender, and Robert A. Ridenour, Assistant Public Defender, with him on

the brief), Office of the Federal Public Defender, Eastern District of Oklahoma,

Tulsa, Oklahoma, for Defendant-Appellant.

Douglas E. Snow, Assistant United States Attorney (Sheldon J. Sperling, United

States Attorney, with him on the brief), United States Attorney’s Office, Eastern

District of Oklahoma, Muskogee, Oklahoma, for Plaintiff-Appellee. 

Before HENRY, Chief Judge, and SEYMOUR and HOLMES, Circuit Judges.

PER CURIAM.

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
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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. 

I. BACKGROUND

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
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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. 
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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 object to the PSR’s recommended offense level. 
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The government filed a motion for an upward departure from the sentencing

guidelines, based on reckless endangerment during flight substantially in excess

of the degree considered by the guidelines. Mr. Osborne objected to this motion

for an upward departure.

After an evidentiary hearing and argument, the district court granted the

government’s motion for an upward departure. Mr. Osborne’s total offense level

was revised upward an additional two levels, giving a guideline range of 120-150

months, and he was sentenced to pay $3,521.98 in restitution and serve 132

months in prison, followed by a supervised release term of 36 months.

Mr. Osborne appeals the two-level upward departure and requests that we

remand the case for resentencing. He argues that the upward departure was

erroneous, because the circumstances of his flight and the number of people he

put at “substantial risk of death or bodily injury,” U.S.S.G. § 3C1.2, were not

outside the heartland of flight from law enforcement already considered within

the guidelines. 

II. DISCUSSION

A. Standard of Review.

We review for abuse of discretion the district court’s sentencing decision. 

Gall v. United States, 552 U.S. 38, 51 (2007) (“Regardless of whether the

sentence imposed is inside or outside the Guidelines range, the appellate court

must review the sentence under an abuse-of-discretion standard.”). Although
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United States v. Booker, 543 U.S. 220 (2005) made the sentencing guidelines

advisory and not mandatory, “the [Booker] Court noted that district courts must

still ‘consult [the] Guidelines and take them into account when sentencing’” and

“[a]lthough district courts post-Booker have discretion to assign sentences outside

of the Guidelines-authorized range, they should also continue to apply the

Guidelines departure provisions in appropriate cases.” United States v. SierraCastillo, 405 F.3d 932, 936 n.2 (10th Cir. 2005) (quoting Booker, 543 U.S. at

224). 

This court applies its own four-part test in reviewing a district court’s

upward departure from the sentencing guidelines:

(1) whether the factual circumstances supporting a departure are

permissible departure factors; (2) whether the departure factors relied

upon by the district court remove the defendant from the applicable

Guideline heartland thus warranting a departure; (3) whether the record

sufficiently supports the factual basis underlying the departure; and (4)

whether the degree of departure is reasonable.

United States v. Montgomery, 550 F.3d 1229, 1233 (10th Cir. 2008) (internal

quotation marks omitted); see also United States v. Collins, 122 F.3d 1297, 1303

(10th Cir. 1997) (establishing the four-part test). This court’s four-part test

remains valid even after Gall. United States v. Munoz-Tello, 531 F.3d 1174, 1186

n.22 (10th Cir. 2008), cert. denied, 129 S. Ct. 1314 (2009).

“All of these [four] steps are subject to a unitary abuse of discretion

standard.” United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006)
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(describing the four-part test) (internal quotation marks omitted). Despite this

unitary abuse of discretion standard, “the degree of deference to the district court

varies depending on the essential nature of the question presented on appeal. 

That is, if the question on appeal has the hue of a factual question, we accord the

district court greater deference, whereas we undertake plenary review of questions

that are in essence legal.” Munoz-Tello, 531 F.3d at 1186 (citations and internal

quotation marks omitted) (describing the four-part test). 

B. The District Court’s Decision to Depart Upward.

U.S.S.G. § 3C1.2 provides for a two-level enhancement for flights when

“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.” 

An application note allows a potential upward departure from the guidelines for

such flights, stating that “[i]f death or bodily injury results or the conduct posed a

substantial risk of death or bodily injury to more than one person, an upward

departure may be warranted.” Id. at n.6. 

The guidelines explain that a sentencing court may upwardly depart from

the applicable guideline range “in an exceptional case, . . . if the court determines

that such circumstance is present in the offense to a degree substantially in excess

of . . . that which ordinarily is involved in that kind of offense.” U.S.S.G. §

5K2.0(a)(3). The application note to this subsection states in part:
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Subsection (a)(3) authorizes the court to depart if there exists an

aggravating . . . circumstance . . . to a degree not adequately taken into

consideration in the guidelines. However, inasmuch as the Commission

has continued to monitor and refine the guidelines since their inception

to determine the most appropriate weight to be accorded the . . .

aggravating circumstances specified in the guidelines, it is expected that

departures based on the weight accorded to any such circumstance will

occur rarely and only in exceptional cases.

U.S.S.G. § 5K2.0, n.3(B)(i).

At the sentencing hearing, the district court gave two alternative holdings

for why Mr. Osborne’s case merited an upward departure from the guidelines. 

First, the district court held that a high-speed car chase (which Mr. Osborne’s

was) “automatically” qualifies for an upward departure from the guidelines, citing

U.S.S.G. § 3C1.2 n.6: 

In this Court’s opinion a high speed car chase does, in fact, always

endanger more than one person, meaning it should automatically qualify

for consideration of an upward departure under Application Note 6

because a car chase would, in this Court’s opinion, automatically take

it out of the heartland cases. 

Rec. vol. II, at 39 (emphasis added). Second, the district court described the

specific facts of Mr. Osborne’s high-speed car chase, holding them to be

exceptional and outside of the heartland of ordinary cases: 

I find by a preponderance of the evidence that the Defendant’s repeated

high speed passes through and past the Wal-Mart Store parking lot, the

gas station and the McDonald’s put a huge number of people at risk that

would not have been – that ordinarily would not be affected in fleeing

from law enforcement officers. It’s to a degree not adequately

considered by the Sentencing Commission in 3(c)1.2. Therefore,

Application Note 6’s suggestion of the possibility of an upward
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departure is applicable in this case and causes this case to differ

significantly from the heartland of cases covered by this guideline.

Id. at 41. 

We adopt the second of the district court’s two rationales, and affirm the

upward departure because the facts of Mr. Osborne’s high-speed car chase were

exceptional and therefore outside of the heartland of ordinary cases. 

C. Departure Analysis.

We read Mr. Osborne’s appellate brief as challenging the district court’s

application of the second prong of the four-part departure inquiry: whether the

factors relied upon by the district court remove him from the applicable guideline

heartland and thus warrant a departure. When analyzing this prong, the district

court “commingles factual and legal questions.” Munoz-Tello, 531 F.3d at 1189. 

The “determination of the heartland is a legal matter to the extent that it relies on

interpretation of Guidelines language but a factual matter to the extent that it

relies on experience with the type of offense involved to decide whether the facts

of the case at hand are usual or unusual, ordinary or not ordinary, and to what

extent.” United States v. Jose-Gonzalez, 291 F.3d 697, 704 (10th Cir. 2002)

(internal quotation marks omitted). 

Here, the district court’s justifications for the upward departure encompass

both legal and factual matters. The court’s first rationale—that “a high speed car

chase does, in fact, always endanger more than one person” and therefore “should
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automatically qualify for consideration of an upward departure under Application

Note 6”— constitutes a legal definition of the scope of the heartland that we

examine de novo. Rec. vol. II, at 39; see United States v. Sicken, 223 F.3d 1169,

1173 (10th Cir. 2000) (“[W]here a district court’s decision to depart involves its

determination as to what constitutes a guideline’s heartland, appellate review

would not be deferential because the question of what constitutes a guideline’s

heartland is essentially legal in nature.”) (citing United States v. Rivera, 994 F.2d

942, 951 (1st Cir. 1993) (Breyer, C.J.) (“Plenary review is also appropriate where

the appellate court, in deciding whether the allegedly special circumstances are of

a kind that permits departure, will have to perform the quintessentially legal

function of interpreting a set of words, those of an individual guideline, in light of

their intention or purpose, in order to identify the nature of the guideline’s

heartland . . . .”) (citations and internal quotation marks omitted)). 

In contrast, the court’s finding that the circumstances of Mr. Osborne’s

high-speed car chase were exceptional, and therefore outside of the heartland of

ordinary flights from law enforcement, constitutes a factual determination to

which we owe substantial deference. See Jose-Gonzalez, 291 F.3d at 703-04

(“Whether a given factor is present to a degree not adequately considered by the

Commission . . . [is a] matter[] determined in large part by comparison with the

facts of other Guidelines cases. District courts have an institutional advantage

over appellate courts in making these sorts of determinations, especially as they
1 The district court did not purport to rely on any empirical data that

unequivocally establishes this purported characteristic of high-speed car chases,

and we strongly doubt that such data actually exists. 

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see so many more Guidelines cases than appellate courts do.”) (citing Koon v.

United States, 518 U.S. 81, 98 (1996)).

We are unpersuaded by the district court’s first rationale. The district court

would deem as categorically outside of the heartland of flights from law

enforcement high-speed car chases under the view that all such chases endanger

more than one person. We cannot conclude as a legal matter, however, that this is

so.1

 Furthermore, we do not believe that such a categorical exclusion would have

been within the contemplation of the Sentencing Commission in drafting

application note 6 to § 3C1.2. The departures envisioned by that note are subject

to the limiting principles articulated by the Commission in Chapter Five of the

guidelines. See U.S.S.G. § 3C1.2 n.6 (offering “Chapter Five, Part K

(Departures)” as authority for the envisioned departures). In that chapter, the

Commission expressed its expectation that departures based upon the conclusion

that aggravating circumstances are present to a degree not adequately taken into

consideration by the guidelines “will occur rarely and only in exceptional cases.” 

U.S.S.G. § 5K2.0, n.3(B)(i). 

However, in substance, the district court determined here that the

aggravating circumstances associated with all high-speed car chases were not
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adequately taken into account by the Commission in drafting the guidelines and,

therefore, such chases automatically warranted upward departures. Far from

ensuring that such aggravating-circumstance departures will “occur rarely and

only in exceptional cases,” the likely effect of the district court’s categorical rule

would be to make the majority of actual flights from law enforcement involving a

car eligible for upward departures. The Commission could not have contemplated

such a result. See Koon, 518 U.S. at 93 (describing the heartland as “a set of

typical cases embodying the conduct that each guideline describes”). 

Consequently, we conclude that the district court’s categorical rule constituting

its first departure rationale is legal error. 

But that does not end our analysis. The district court offered a second

alternative rationale to justify its upward departure that was predicated on the

specific facts of Mr. Osborne’s flight from law enforcement. Acknowledging the

district court’s special ability to judge the “ordinariness or unusualness of a

particular case,” id. at 99 (internal quotation marks omitted), we hold that the

district court did not abuse its discretion in finding that the specific facts of Mr.

Osborne’s flight were outside of the heartland of typical flights from law

enforcement. 

The district court held that Mr. Osborne’s “repeated high speed passes

through and past the Wal-Mart Store parking lot, the gas station and the

McDonald’s put a huge number of people at risk that would not have been – that
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ordinarily would not be affected in fleeing from law enforcement officers. It’s to

a degree not adequately considered by the Sentencing Commission in 3(c)1.2.” 

Rec. vol. II, at 41. These factual findings warranted an upward departure under

U.S.S.G. § 3C1.2 n.6 (“a substantial risk of death or bodily injury to more than

one person”) and U.S.S.G. § 5K2.0(a)(3) (“[A] circumstance is present . . . to a

degree substantially in excess of . . . that which ordinarily is involved in that kind

of offense.”). 

III. CONCLUSION

For the foregoing reasons, we hold that the district court’s two-level

upward departure from the guidelines was not an abuse of discretion, and we

AFFIRM.