United States Court of Appeals

For the Eighth Circuit

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No. 18-2525

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United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Nicholas Burrell Davidson,

lllllllllllllllllllllDefendant - Appellant.

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Appeal from United States District Court

for the Southern District of Iowa - Davenport

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Submitted: May 13, 2019

Filed: August 9, 2019

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Before COLLOTON, BEAM, and SHEPHERD, Circuit Judges.

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COLLOTON, Circuit Judge.

Nicholas Davidson pleaded guilty to one count of unlawful possession of a

firearm as a previously convicted felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The

district court1sentenced him to 110 months’ imprisonment. Davidson appeals,

1The Honorable John A. Jarvey, Chief Judge, United States District Court for

the Southern District of Iowa.
challenging the district court’s calculation of the advisory guideline sentencing range. 

He disputesincreasesto the guideline range for possession of a firearm in connection

with another felony, USSG § 2K2.1(b)(6)(B), and for reckless endangerment during

flight from law enforcement, id. § 3C1.2. We conclude that there was no procedural

error, and therefore affirm.

Police in Davenport, Iowa, learned in July 2017 that Davidson was selling

marijuana out of a car near a local apartment complex. A confidential informant,

under supervision of the police, bought 2.5 grams of marijuana from Davidson, who

weighed the drugs on a digital scale before transferring them.

Two dayslater, police decided to arrest Davidson at a local playground. When

he saw the officers, Davidson fled, and the officers chased him. About forty to fifty

yards into the foot pursuit, Davidson pulled a pistol from his waistband and threw it

to the side. He then ran to a residential area, where he climbed a six-foot privacy

fence and entered a backyard. Police caught him there, but he continued resisting and

fought with officers. Several officers received minor injuries during the struggle.

Police found 13.7 grams of marijuana, at least $1,300 in cash, and car keys on

Davidson’s person. Officers searched the car that matched the keys and found

approximately 7.35 grams of marijuana, three functioning digital scales, packaging

material, and a duffle bag with marijuana residue. Police also searched two

apartments that Davidson reportedly frequented, and seized marijuana and drug

paraphernalia.

Davidson pleaded guilty to unlawfully possessing a firearm as a previously

convicted felon, and the district court sentenced him to 110 months’ imprisonment. 

In calculating the advisory guideline range, the court applied a four-level increase for

possession of a firearm in connection with another felony offense and a two-level

increase for reckless endangerment during flight.

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On appeal, Davidson disputes the finding that he possessed “any firearm or

ammunition in connection with another felony offense.” Id. § 2K2.1(b)(6)(B). The

district court found that Davidson possessed a firearm in connection with the felony

offense of possession with intent to distribute marijuana. The court reasoned that

Davidson’s offense “was clearly possession with intent to distribute marijuana based

on his earlier sale to the confidential informant, the amount of cash, the manner in

which the marijuana was packaged, presence of a firearm, and the search warrant

evidence.” Davidson contends, however, that he did not intend to distribute the

marijuana that he possessed, so his drug offense was not a felony.

Davidson possessed 13.7 grams of marijuana packaged in several plastic bags,

and an expert testified that Davidson’s hybrid marijuana was often sold in gram or

half-gram quantities. He also possessed $1,300 in cash when arrested, and he

discarded a firearm during the preceding foot chase. These factors all support an

inference that the seized marijuana was for distribution and not merely for personal

use. See United States v. Brockman, 924 F.3d 988, 993-94 (8th Cir. 2019); United

States v. Thompson, 881 F.3d 629, 632-33 (8th Cir. 2018). Add to that Davidson’s

distribution of marijuana to an informant two days earlier, the seizure of marijuana,

scales, and packaging material from a car to which Davidson had the keys, and other

drug trafficking evidence found in two apartments that Davidson frequented. There

was ample evidence to support a finding of possession with intent to distribute, and

there was no clear error in applying the four-level increase under § 2K2.1(b)(6)(B).

Davidson also challengesthe district court’s application of a two-level increase

for “recklessly creat[ing] a substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer.” USSG § 3C1.2.

Davidson argues that § 3C1.2 is most often applied to car chases, e.g., United States

v. St. James, 415 F.3d 800, 806 (8th Cir. 2005), and does not apply in the context of

his short-lived flight on foot. He portrays his flight as an instinctive response that

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failed to create the requisite risk to others. See United States v. Reyes-Oseguera, 106

F.3d 1481, 1483 (9th Cir. 1997).

We see no clear error in the district court’sfinding. The reckless endangerment

adjustment can apply to foot chases as well as car chases, see United States v. Bates,

561 F.3d 754, 757 (8th Cir. 2009), and there was sufficient evidence to trigger the

increase here. Davidson fled from police and hopped a six-foot fence in a residential

area, thereby creating a risk of harm to officers who scaled the barrier after him. By

struggling with the arresting officers, he created a substantial risk of serious bodily

injury beyond the minor injuries that actually resulted. By discarding his firearm

during the chase, Davidson also created the possibility of the weapon accidently

discharging. The court reasonably could find that Davidson was aware of the risks

created by his conduct, and that he grossly deviated from the standard of care that a

reasonable person would exercise in that situation—i.e., peaceful surrender. See

USSG § 3C1.2, comment. (n.2); id. § 2A1.4, comment. (n.1). We therefore conclude

that the district court did not commit procedural error in calculating Davidson’s

guideline range.

The judgment of the district court is affirmed.

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