PUBLISH UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CLIFFORD J. YOUNG, Defendant-Appellant. No. 17-8059

__________________ _______________ Appeal from the United States District Court for the District of Wyoming (D.C. No. 1:17- CR-00051-SWS-1)

__________________ _______________ Josh Lee, Assistan t Federal Public Defender (V irginia L. Grady, Federal Public Defender, with hi m on the briefs), Denver, Colorado, fo r DefendantAppellant. Jason M. Conder, Assistant United St ates Attorney (Mark A. Klaassen, United States Attorney, with him on the brief), Lander, Wyoming, for Plaintiff-Appellee.

__________________ _______________ Before BRISCOE , KELLY , and BACHARACH , Circuit Judges.

__________________ _______________ BACHARACH , Circuit Judge.

__________________ _______________ This appeal involves a sentenci ng enhancement imposed after a federal conviction. At sent encing, the district court enhanced Mr. Clifford Young’s guidelin e range for recklessly endange ring others while fleeing FILED United States Court of Appeals Tenth Circuit 

### June 26, 2018
Elisabeth A. Shumaker Clerk of Court2 from a law-enforcement officer. See U.S. Sentencing Guid elines Manual § 3C1.2 (two-level increase in the offense level). Th e issue on appeal is whether the district c ourt’s factual findings sufficed to trigger the enhancement. The facts are largely undisputed. Mr. Young fl ed from the police. During the flight, he thr eatened to shoot if the police took ac tion. They took action anyway , using “spike stri ps” to bring Mr. Young’s vehicle to an eventual stop. But Mr. Young refuse d to surrender, engaging in an armed standoff on the side of the highway. Th is conduct provided an adequate basis for the enhan cement; we therefore affirm. I. Background The events unfo lded when Mr. Young said that he would commit suicide in front of his ex-girlfriend and began dr iving toward her house. A friend alerted police officers, who trie d to stop Mr. Young . He fled with the police in pursuit. Mr. Young did not spee d or otherwise drive recklessly during th e chase. But while driving, Mr. Young threatened to shoot the police if they took action. Roughly 40 minute s into the pursu it, the police depl oyed spike strips to puncture the tires of Mr. Young’s car. The spike strips worked, and Mr. Young’s car eventu ally stopped. But Mr. Young remained in his car for roughly 4-1⁄2 hours be fore surrendering.3 Mr. Young was convicted of posse ssing a firearm as a convicted felon. See 18 U.S.C. § 922(g)(1) . At sentencing, the di strict court applied an enhancement for reck less endangerment, conclu ding that Mr. Young’s actions had recklessly created a substa ntial risk of death or injury to others. See U.S. Sentencing Guidelines Manual § 3C1.2. Mr. Young appeals the application of this enhancement. II. Standard of Review The parties disagree over the st andard of review. The government asks us to apply the clear-error standard. See United States v. Brown , 314 F.3d 1216, 1221 (10th Cir. 2003). Mr. Young urges us to engage in de novo review. In his briefing and at oral argument, Mr. Young stressed that he is not challenging any of the district c ourt’s factual findings; instead, he accepts the findings of fact and argues solely that th e facts are insufficient as a matter of law to warrant the enhancement. Therefore, we apply de novo review to Mr. Young’s challenge. See United States v. Hamilton , 587 F.3d 1199, 1222 (10th Cir. 2009) (stating that when a defe ndant argues that “the facts found by the district court ar e insufficient as a matter of law to warrant an enhancemen t, we must conduct a de novo review”). III. Application of the Reck less-Endangerment Enhancement Mr. Young challenges the application of the reckless-endangerment enhancement. This enhancement app lies when a defend ant “recklessly4 create[s] a substantial risk of death or serious bodily injury to another person in the course of fleeing fro m a law enforcement officer.” U.S. Sentencing Guidelines Manual § 3C1.2. In finding that the enha ncement applied, the di strict court relied in part on Mr. Young’s threat to shoot pursui ng police officers and refusal to surrender. While fleeing, Mr. Young told a police dispatcher that “if police took any action he would return with gunfire” and “he knew officers were wearing bullet proof vests, but he had hollow point ammunition, and was a good shot.” R. vol. II, at 40. The court found that

 this threat had recklessly endang ered the pursuing officers and

 Mr. Young’s refusal to surrender himself or his weapon during the standoff had recklessly en dangered purs uing officers. 1 Mr. Young counters with two arguments: 1. Verbal threats cannot consti tute reckless endangerment. 2. The standoff is im material because it did not take place while Mr. Young was fleeing. We reject both arguments.

1 The district court also relied on other factors, such as Mr. Young’s flight, the officers’ deployment of sp ike strips, Mr. Young ’s possession of a firearm, and his statements suggesti ng an intent to commit “suicide by cop.” R. vol. III, at 47. We need not address the im pact of thes e factors.5 A. The combination of Mr. Young’s threat and the subsequent standoff created a substantial risk of death or serious bodily injury to another person. Mr. Young’s first argument is that the threat invo lved only verbal communication rather than an overt action like brandishing or shooting a gun. To Mr. Young, the distinction ma tters because the enhancement is triggered only if the defendant does something to create a risk rather than threaten to do somethi ng that would create a ri sk. In ligh t of this distinction, Mr. Young insists that a threat to shoot wo uld not trigger the enhancement. We agree that the enhancement applies only wh en a defendant actually creates a substantial risk. See U.S. Sentencing Guidelines Manual § 3C1.2; see also United States v. Bell , 953 F.2d 6, 10 (1st Cir. 1992) (“Section 3C1.2 punis hes the act of creating a risk of death, not merely the intent to create such a risk.”). The resulting issu e is whether Mr. Young’s threat created a substant ial risk of harm when he later engaged in a standoff with the police. The threat created a da ngerous situation for the officers as they pursued Mr. Young. The police were on alert, knowing that he was armed and had expressed an intention to shoot if they were to take action. They took action anyway, depl oying spike strips . When Mr. Young ran over the spike strips, losing tire pres sure and coming to an eventual halt, the police had reason to fear grave harm. Mr. Y oung had already thre atened to shoot6 the police officers if they were to take action, and they had now taken action. 2 The danger intensified du ring the standoff, with the police trying to coax Mr. Young out of hi s car. He could have fi red at any time, and the police were presumably aw are of their vuln erability. They too could have shot, fearing that Mr. Young would ca rry out his threat. And if the police were to shoot, th ey could have accidentally sh ot a fellow police officer. This risk supports applicat ion of the enhancement. See United States v. McDonald , 521 F.3d 975, 979–80 (8th Cir. 2008 ) (applying the enhancement to defendants who had ba rricaded themselves in a hotel room for two hours, claimed to have a gun, and threw chai rs out of the window); United States v. Campbell , 42 F.3d 1199, 1205–06 (9th Cir. 1994) (applying the enhancement to a defendant who armed and barricaded himself inside a house fo r twelve hours and threat ened to kill officers). Thus, the combination of the threat and standoff prov ided sufficient support for the district court’s determ ination that Mr. Y oung had recklessly endangered another person. 3

2 Mr. Young questions th e existence of evidence that he knew that the police had used spike strips. But the di strict court could reasonably infer that Mr. Young woul d have lear ned of the spike strips when they punctured his tires and stopped his car.

3 Mr. Young argues that the district court erred in concluding that the general public had been endangered because the court made no findings that bystanders were pr esent during the chase. We need not a ddress this7 B. Mr. Young’s standoff with the police occurred “in the course of fleeing.” Mr. Young also assert s that we cannot consid er the armed standoff because it did not occur “in the cour se of fleeing from a law enforcement officer.” U.S. Senten cing Guidelines Manual § 3C1.2. Mr. Young concedes that he was fleeing while driving on the highway, but he insists that he was no longer fleeing once hi s car stopped. Mr. Young reads the guideline too narrowly. The guideline commentary states: “‘During flight’ is to be construed broadly and includes prepara tion for flight. Therefore, this adjustment also is applicable where the conduct occurs in the course of resisting arrest.” Id. § 3C1.2 cmt. 3. Mr. Young was resi sting arrest duri ng the standoff, disobeying police commands to exit his vehicle. Mr. Young argues that the guideline commentary refers only to attempts to flee and denies that he was attempting to flee during the standoff. But he has mi sread the commentary, wh ich encompasses efforts to resist arrest. Based on this commentary, courts have concluded that resisting arrest—even with out an attempt or prepar ation to flee—qualifies as flight from law enforcement. See United States v. McDonald , 521 F.3d 975, 979–80 (8th Cir. 2008) (concluding that the term “during flight”

argument; even if Mr. Y oung were correct, the ri sk to pursuing officers would suffice for the enhancement. See U.S. Sentencing Guidelines Manual § 3C1.2 (requiring the creation of a risk of harm to “another person”).8 applied to defendants who had barrica ded themselves in a hotel room); United States v. Campbell , 42 F.3d 1199, 1205–06 (9th Cir. 1994) (concluding that the term “during fl ight” applied to a defendant who had barricaded himself insi de a house and engaged in a twelve-hour armed standoff with police). Like those courts, we conclude that the term “fleeing” is not limited to an attempt or preparat ion to flee. We therefore conclude that Mr. Young was fleeing when he refu sed to surrender and engaged in a standoff with police officers.
* * * Mr. Young fled from po lice, refusing to surre nder as he drove for roughly 40 minutes on the highway and engaged in a sta ndoff for roughly 4-1⁄2 hours. During that time, Mr. Young informed po lice that he had a gun and threatened to shoot if they took any action. And they did take action by deploying spike strips. Thus , the district court did not err in applying the sentencing enhancement. IV. Conclusion We conclude that

 the enhancement was supported by Mr. Young’s thr eat to shoot and his subsequent standoff with the police and

 Mr. Young’s standoff occurred in the cour se of fleeing from police.9 Therefore, the district court did not err in applying the recklessendangerment enhancement. Affirmed.