In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3092

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RONNIE E. LARD,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:02-CR-00004-RM—Robert L. Miller, Jr., Chief Judge.

____________

ARGUED MARCH 5, 2003—DECIDED APRIL 24, 2003

____________

Before MANION, DIANE P. WOOD, and EVANS, Circuit

Judges.

PER CURIAM. Ronnie Lard pleaded guilty to possessing

a sawed-off rifle as a convicted felon, 18 U.S.C. § 922(g)(1),

brandishing the rifle during and in relation to an attempted robbery, id. § 924(c), and possessing the rifle

though it was not registered to him, 26 U.S.C. § 5861(d).

Lard received 76 months’ imprisonment on both the first

and third counts plus a 120-month term on the second

count—all three sentences to run consecutively. His appeal presents the single question of whether the district

court properly imposed an upward adjustment for reckless endangerment during flight. U.S.S.G. § 3C1.2. Because
2 No. 02-3092

the district court did not commit clear error by imposing

the adjustment, we affirm.

At four o’clock in the morning on October 8, 2001, Lard

walked into the Village Pantry in Mishawaka, Indiana,

leveled a 9mm Hi-Point carbine rifle with a shortened

barrel at a store employee and the employee’s friend, and

ordered the pair to get into the bathroom and lock the

door. Lard then hitched his pickup truck to the store’s

ATM with a logging chain and attempted to remove the

machine. Lard was momentarily sidetracked when a

prospective customer drove up and asked what he was

doing, but Lard scared the customer away by grabbing his

rifle from the truck’s cab, pointing it at the customer, and

threatening to kill him.

In the meantime, the store employee and his friend had

climbed through the bathroom ceiling into the office, where

they called 911. When the police arrived, they saw Lard

in the store holding his rifle. Lard then ran behind the

store into the woods, which in parts were “heavily weeded.”

Officers pursued with guns drawn, and a police dog eventually cornered Lard. By then he had discarded his gun,

which Sergeant Steve Treber eventually located and

retrieved from an area of undergrowth that witnesses

described as a “briar patch.” As Sergeant Treber pulled the

gun from the briar patch, the weapon discharged—fortunately causing no injuries.

At sentencing the district court heard testimony from

Lard and ATF Special Agent Sean Skender, who had

not been to the crime scene but was assigned to investigate the attempted robbery. Lard testified that he had

discarded the gun because he wanted to avoid a “confrontation” with pursuing officers. He denied having pulled the

action on the rifle to move a bullet from the magazine

into the chamber. And he said that he was waiting in a

squad car when Sergeant Treber found the rifle but did
No. 02-3092 3

not hear the gun discharge. Agent Skender, in contrast, testified that Treber had told him that the gun went off when

he picked it up, so ammunition must have been in the

chamber. On cross-examination, however, Skender conceded

that he did not know whether Treber retrieved the gun

carefully and that none of the written reports prepared

by officers on the scene mentioned a discharge.

Rejecting Lard’s argument that the gun never went off,

the district court concluded that Lard had recklessly

endangered the officers as he fled by tossing his rifle into

a briar patch. The court accordingly adjusted Lard’s offense level upward by two levels. U.S.S.G. § 3C1.2. The

court also imposed upward adjustments because Lard

restrained his victims in the bathroom, id. § 3A1.3, and

because Lard obstructed justice by providing phony information to the arresting officers, id. § 3C1.1. The court then

denied Lard’s request to depart downward to bring his

criminal history category in line with his criminal background. Id. § 4A1.3.

On appeal Lard argues only that the district court

improperly adjusted upward for reckless endangerment,

a move that increased his maximum guideline range by

31 months. Application of a reckless-endangerment adjustment is a factual finding that we review for clear error.

United States v. Thomas, 294 F.3d 899, 906 (7th Cir. 2002).

The adjustment is warranted where “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.” U.S.S.G. § 3C1.2. To obtain the

adjustment the government must show that the defendant did more than merely flee; the guideline requires

“additional conduct” that creates a substantial risk of

serious injury. United States v. Reyes-Oseguera, 106 F.3d

1481, 1483 (9th Cir. 1997); see also United States v. Hagan,

913 F.2d 1278, 1284-85 (7th Cir. 1990) (same rule prior to

the enactment of § 3C1.2).
4 No. 02-3092

The government does not argue that simply discarding

a loaded weapon warrants the adjustment but instead

points to two additional factors that, it says, support

imposing the adjustment here. First, the government

contends that by tossing the rifle into a briar patch, Lard

created a substantial risk that the gun would discharge—as

it actually did—when pursuing officers tried to retrieve

it. Second, the government argues that regardless of

where the weapon landed, Lard created a risk that the rifle

would fire simply by throwing it with a round in the

chamber and the safety off.

We question whether the government’s evidence that

Lard abandoned his gun in a briar patch was enough by

itself to establish that the adjustment was warranted. It

is unclear, for example, if Lard had any idea where he

left his gun as he ran through the woods in the dark. And

the government needed to show that Lard was aware

that he had created a substantial risk of injury by discarding the weapon and nonetheless disregarded that risk.

U.S.S.G. § 3C1.2, comment. (n.2); id. § 2A1.4, comment.

(n.1). It is of course true that simply leaving a weapon in

a public place can amount to reckless endangerment. The

Tenth Circuit recently made this point in United States

v. Brown, 314 F.3d 1216 (10th Cir. 2003)—a case in which

a fleeing defendant dropped his handgun outside an

apartment complex where children were getting off a

school bus. Id. at 1221. But unlike Brown there is no

evidence here that the public could easily access the

briar patch. Indeed, Agent Skender testified that the

briar patch was in a “wooded area” behind the Village

Pantry, and nothing in the record shows the location of

this wooded area in relation to the store.

Still, the government insists that because the gun actually discharged when Sergeant Treber picked it up, the

district court could reasonably infer that the briar patch

was an unsafe place to leave a weapon. To create that
No. 02-3092 5

inference, however, the government needed to introduce

some evidence about dangerous features of the briar

patch—which it failed to do. There is no evidence, for

example, that the gun discharged because the trigger

snagged on the briars and not because of a malfunction

or Sergeant Treber’s negligence. Treber did not testify

at the sentencing hearing, nor did the government attempt to elicit through hearsay any specifics about the

rifle’s recovery. And Agent Skender, who did testify,

conceded that he did not know if Treber acted carefully.

In short, nothing in the record explains why the gun went

off. By all appearances, the gun might have been just

as likely to discharge if the police had ordered Lard to

drop the weapon, and he had heeded their command.

Nonetheless, the district court also found that Lard

threw the rifle with a round in the chamber and the safety

off. Lard in his opening brief makes no argument that

these findings were clearly erroneous. He says in his reply

that no one saw him discard the rifle and so there is no

evidence that he “threw” the weapon. But on cross-examination the prosecutor asked, “And you threw this firearm

away from your person knowing it was loaded at the time

you threw it,” to which Lard responded, “Yes, I did.” Lard

introduced no evidence to clarify that what he meant

to say is that really he had gently set the gun down,

even though his attorney recognized the government’s

characterization and argued to the district court that

Lard “could have been setting [the gun] down.”

On the question of whether throwing a gun with a round

in the chamber and the safety off is dangerous enough

to justify an adjustment under § 3C1.2, we have found

no published appellate decisions. Clear error, however, is

a deferential standard. The district court needs to adopt

only a permissible view of the evidence. See United States

v. O’Brien, 238 F.3d 822, 825 (7th Cir. 2001); see also

Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).
6 No. 02-3092

On this record the district court could reasonably have

inferred that throwing a rifle, which was fully capable

of firing, could actually cause the gun to go off when it

hit the ground, thus creating a risk of serious injury to

pursuing officers. Agent Skender said as much at the

sentencing hearing, testifying that he would never throw

a loaded firearm because of the risk that it would discharge.

Additional information might have weakened the inference. For example, evidence of the force with which Lard

threw his rifle (the district court declined to find “whether

that was a short toss or a long toss”) and the likelihood

that the force would cause the rifle to discharge might

have shown the degree of risk to be slight. Cf. United

States v. Smith, 210 F.3d 760, 763-64 (7th Cir. 2000)

(holding that the risk created by throwing dangerous

chemicals out of a car at pursuing officers depends on the

chemicals’ quantity and concentration). But absent such

evidence the district court’s assessment of the risk was

not implausible. The court therefore did not commit

clear error, and its judgment is

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-24-03