United States Court of Appeals

For the Eighth Circuit

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No. 14-1237

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United States of America,

lllllllllllllllllllll Plaintiff - Appellee,

v.

Michael Joseph McMahan,

lllllllllllllllllllll Defendant - Appellant.

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 Appeal from United States District Court 

for the Northern District of Iowa - Ft. Dodge

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 Submitted: October 10, 2014

 Filed: April 10, 2015

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Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.

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COLLOTON, Circuit Judge.

Michael Joseph McMahan pleaded guilty to conspiracy to distribute

methamphetamine. The district court sentenced him to 196 months’ imprisonment. 1

McMahan appeals his sentence, arguing that the district court erred by increasing his

The Honorable Linda R. Reade, Chief Judge, United States District Court for

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the Northern District of Iowa.
offense level under the sentencing guidelines based on a finding of reckless

endangerment during flight. We conclude that the increase was warranted, and

therefore affirm.

On July 24, 2013, law enforcement officers received information that

McMahan was part of a methamphetamine distribution conspiracy that was bringing

drugs from Minnesota to Iowa for resale. The next day, an officer observed

McMahan driving a red vehicle, and the officer called for a marked patrol unit to stop

the car. The unit attempted to make a traffic stop, but McMahan drove off at a high

rate of speed, first down a road and then down an alley. According to one officer,

McMahan was “going down alleys so fast that [the pursuing officer] couldn’t see

because of the huge dust cloud.”

McMahan eventually pulled into a driveway, abandoned his car, and fled on

foot. He fled through backyards and over three fences, and a witness observed him

enter a private home. Nobody was home when McMahan entered, but the

homeowner later told police that he did not know McMahan and did not give him

permission to enter the home. Officers entered the house and located McMahan in

the basement, where he surrendered.

McMahan pleaded guilty to one count of conspiracy to distribute

methamphetamine. See 21 U.S.C. § 846. At sentencing, in calculating the advisory

sentencing guideline range, the district court applied a two-level increase under

USSG § 3C1.2 for reckless endangerment during flight. As a result, the court

determined a total offense level of 35, along with a criminal history category of V,

and an advisory guideline range of 262 to 327 months’ imprisonment. The court then

departed downward from the advisory range for reasons unrelated to the reckless

endangerment and sentenced McMahan to 196 months’ imprisonment. The court

stated alternatively that if it erred in applying the two-level increase for reckless

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endangerment during flight, the court would have imposed the same sentence based

on its authority under 18 U.S.C. § 3553(a).

McMahan challengesthe district court’s application of § 3C1.2. This guideline

providesfor a two-level increase when “the defendantrecklessly created a substantial

risk of death or serious bodily injury to another person in the course of fleeing from

a law enforcement officer.” We review the district court’s factual findings for clear

error. United States v. Silva, 630 F.3d 754, 756 (8th Cir. 2011).

The district court determined that two aspects of McMahan’s flight

independently justified the increase. The court cited McMahan’s acceleration in an

alley, which generated a cloud of dust that obstructed the pursuing officer’s vision

and created a risk to others. The court also relied on McMahan’s entering a private

home in an effort to evade police. McMahan contends that neither circumstance was

sufficient to show that he created a substantial risk of death or serious bodily injury

to another person. 

We agree with the district court that McMahan’s uninvited entry into a private

home created a substantial risk of serious bodily injury to another person that was

sufficient to justify the increase under § 3C1.2. McMahan’s entry, like a traditional

burglary, creates “the possibility of a face-to-face confrontation between the burglar

and a third party—whether an occupant, a police officer, or a bystander—who comes

to investigate.” James v. United States, 550 U.S. 192, 203 (2007). Although the

homeowner was not present when McMahan entered the residence, the presence of

an uninvited stranger in a home creates a substantial risk of violent confrontation

leading to serious injury when the resident returns home or another party enters to

investigate. United States v. Carter, 601 F.3d 252, 255-56 (4th Cir. 2010). We

therefore conclude that the district court properly applied § 3C1.2, and there was no

procedural error in imposing sentence. 

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The judgment of the district court is affirmed.

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