RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0049p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRED D. GOLSON, JR.,

Defendant-Appellant.

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No. 23-3078

Appeal from the United States District Court for the Northern District of Ohio at Cleveland.

No. 1:21-cr-00663-1—James S. Gwin, District Judge.

Decided and Filed: March 11, 2024

Before: BATCHELDER, STRANCH, and DAVIS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: K.L. Penix, ALDERMAN LAW FIRM, Fort Collins, Colorado, for Appellant. 

Matthew W. Shepherd, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for 

Appellee.

_________________

OPINION

_________________

DAVIS, Circuit Judge. Fred Golson, Jr., pleaded guilty to two counts of being a felon in 

possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 

Based on an offense level of 17 and a criminal history category of VI, Golson’s Sentencing 

Guidelines range was 51 to 63 months’ imprisonment. In calculating Golson’s Guidelines range, 

the district court added a two-level enhancement because it found that Golson’s flight from law 

enforcement during one of the underlying incidents amounted to reckless endangerment pursuant 

>
No. 23-3078 United States v. Golson Page 2

to U.S.S.G. § 3C1.2. The court ultimately sentenced Golson to 56 months’ imprisonment, three 

years of supervised release, and a $200 special assessment. Golson challenges the imposition of 

his sentence on procedural reasonableness grounds. Specifically, he maintains that the district 

court erred in applying the two-level enhancement because he was not the driver of the vehicle at 

the time of the incident. Because the undisputed facts of the case create a reasonable inference 

that Golson was an active participant in the reckless flight from police, we AFFIRM. 

I.

Golson’s offenses of conviction stem from two separate incidents. The first incident 

occurred in April 2021 when law enforcement responded to a shooting outside of a local 

business in Elyria, Ohio. Golson and three other individuals arrived in a blue Ford Focus, exited 

the vehicle, and opened fire at several individuals. After the shooting, the vehicle fled the scene. 

Officers from a neighboring department tried to stop the car about 2.5 miles away from the scene 

of the shooting. During its getaway, the vehicle traveled approximately 55 miles per hour in a 

residential area, drove off the road and into the grass to avoid “stop sticks” placed on the road by 

law enforcement, and crashed. Three of the occupants remained in the vehicle and were 

immediately detained, but Golson jumped out of the car and fled on foot. The officers searched 

the vehicle and recovered four firearms, one of which was later tested and contained Golson’s 

DNA. Officers located and arrested Golson three hours after the crash.

The second incident occurred in June 2021 when officers responded to reports of shots 

being fired between two vehicles and several individuals on Abbe Road North in Elyria. When 

officers first arrived, they could not find the individuals, but officers viewed security camera 

footage and observed Golson flee the vehicle and hide a firearm behind a local bar. Officers 

retrieved the firearm, which contained Golson’s DNA. Golson was indicted in the United States 

District Court for the Northen District of Ohio for being a felon in possession of a firearm in 

relation to the April 2021 incident. Over a week later, the grand jury returned a superseding 

indictment, which added a second felon-in-possession charge for the June 2021 incident. 

Golson pleaded guilty to both counts pursuant to a Rule 11 plea agreement. The parties 

stipulated to a base offense level of 14, plus a four-level increase because the firearm was used in 
No. 23-3078 United States v. Golson Page 3

connection with another felony offense. The probation department prepared a Presentence 

Report (“PSR”), which recommended the same base offense level and four-level enhancement as 

the plea agreement. But the PSR also recommended an additional two-level increase pursuant to 

U.S.S.G. § 3C1.2 for reckless endangerment during flight based on Golson’s flight from law 

enforcement in April 2021. This adjustment led to an adjusted offense level of 20. Golson 

received a three-level reduction for his acceptance of responsibility, leaving a total offense level 

of 17. With an offense level of 17 and a criminal history category of VI, Golson’s advisory 

Guidelines range was 51 to 63 months’ imprisonment. 

Golson made several objections to the PSR, including one challenging the two-level 

enhancement under § 3C1.2. Concerning the applicability of § 3C1.2, the PSR stated:

[T]he 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; 

therefore, two levels are added. The defendant fled from officers by driving in 

excess of 55 miles per hour through residential areas, driving off of the road, and 

committing several traffic violations. Additionally, the defendant abandoned his 

vehicle with a firearm inside of it and left a second gun unsecured behind a bar.

(R. 37, Page ID 159, ¶ 21). Golson took issue with this assessment, objecting that he was 

“running on foot from law enforcement, and at no time did he discharge a firearm.” (Id. at 176). 

The probation department declined to alter its recommendation and instead responded with a 

more fulsome explanation of why the enhancement applied. Relevant here, the probation officer 

reviewed the Guidelines’ description of what constitutes “reckless” conduct1and explained that 

“the defendant is accountable for the defendant’s own conduct and for conduct that the defendant 

aided or abetted, counseled, commanded, induced, procured, or willfully caused.” U.S.S.G. 

§ 3C1.2, cmt n.5. As to Golson’s part in the flight, the probation officer noted that Golson 

(1) “was the only person in the vehicle to flee from officers on foot” after the crash; (2) “was an 

active member in the flight from law enforcement”; and (3) “was involved in a shooting [that] 

1The Sentencing Guidelines define “reckless” as situations in which “the defendant was aware of the risk 

created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross 

deviation from the standard of care that a reasonable person would exercise in such a situation.” U.S.S.G. § 2A1.4 

cmt n.1. 
No. 23-3078 United States v. Golson Page 4

caused the driver of the vehicle, who was involved in the same shooting, to begin to flee from 

law enforcement.” (R. 37, PageID 176–77).

In his sentencing memorandum, Golson requested that the district court apply the offense 

level to which the parties had stipulated in the plea agreement instead of the probation 

department’s recommended two-level § 3C1.2 enhancement because it was not contemplated in 

the plea agreement. At sentencing, the district court specifically considered, among other 

objections, Golson’s objection to the two-level increase. Making no mention of Golson’s status 

as a passenger as a reason for the objection, defense counsel argued that Golson did not qualify 

for the enhancement because there was no “potential risk of serious bodily harm.” (R.56, 

PageID 237–38). The district court first confirmed with the probation officer that the 

enhancement applied based on the vehicle’s flight and not on Golson’s “fleeing after the vehicle 

came to a stop.” (Id. at 238). Focusing, then, on whether the situation created a potential risk of 

serious bodily harm, the court inquired about the road conditions on the day of the chase, 

including the busyness of the road, the “nature” of the street, the speed limit, and the time of day. 

(Id. at 239). For its part, the defense contended that the vehicle’s purported 55 mph rate of 

speed, where the speed limit was 35 mph, “might not be an excessive speed for the area.” (Id.). 

Satisfying itself that a substantial risk of harm existed, the court overruled the objection and 

accepted the PSR’s recommendation to apply the increase. The court sentenced Golson to 56 

months’ imprisonment, three years of supervised release, and a $200 special assessment. Golson 

timely appealed. 

II.

Issue Preservation. Before addressing the applicable standard of review, we must first 

ascertain whether Golson preserved his argument for appellate review. See United States v. 

Thomas-Mathews, 81 F.4th 530, 538 (6th Cir. 2023). “A ‘defendant generally forfeits the right 

to challenge on appeal any procedural errors to which he did not object at the time of 

sentencing.’” Id. (quoting United States v. Herrera-Zuniga, 571 F.3d 568, 578 (6th Cir. 2009)) 

(cleaned up). In determining whether a forfeiture based on a defendant’s failure to object has 

occurred, we look to whether the challenging party provided a “‘clear articulation of any 

objection and the grounds therefor,’ to ‘aid the district court in correcting any error, tell the 
No. 23-3078 United States v. Golson Page 5

appellate court precisely which objections have been preserved and which have been [forfeited], 

and enable the appellate court to apply the proper standard of review to those preserved.’” Id.

(alteration in original) (quoting United States v. Bostic, 371 F.3d 865, 873 (6th Cir. 2004)). 

Golson insists that he did raise the objection that § 3C1.2 does not apply based on his 

status as a passenger during the vehicle’s flight. Yet, this argument is largely unsupported by the 

record. In his objections to the PSR, as it pertains to the purported misapplication of § 3C1.2, 

Golson merely “argued that he was running on foot from law enforcement, and at no time did he 

discharge a firearm.” (R. 37, PageID 176). Golson’s objection described such activity as 

“benign,” contending further that recklessness requires a “higher degree of culpability.” (Id.) 

His sentencing memorandum expounded no further as to why the reckless endangerment 

enhancement should not apply. Then, during the court’s review of his § 3C1.2 objection at the 

sentencing hearing, Golson focused exclusively on the fact that the speed of the vehicle was not 

so excessive as to cause reckless endangerment. While Golson himself questioned his 

culpability as a non-driver during his allocution,2 his argument was never adopted or presented 

by counsel. And we know that Golson had the opportunity to discuss sentencing issues with his 

attorney ahead of sentencing, for the court confirmed with Golson at the beginning of the 

sentencing hearing that he had reviewed the PSR with counsel prior to the hearing, and his 

counsel confirmed that Golson continued to object to the application of § 3C1.2—as “included 

in [his] sentencing memorandum and the supplement.” (R. 56, PageID 232–33). 

Because Golson was represented by counsel before the district court, his legal arguments 

were required to be presented by his counsel. Allowing Golson to represent himself would have 

amounted to “hybrid representation,” which is not permitted without leave of the court. See

United States v. Miller, 561 F. App’x 485, 488 (6th Cir. 2014) (quoting United States v. Mosely, 

810 F.2d 93, 97–98 (6th Cir.1987)) (noting that a defendant “‘has a constitutional right to be 

represented by counsel or to represent himself during his criminal proceedings, but not both’”) 

2Golson broached the issue during his allocution, stating: “And on April 29th I was not the driver of that 

car, so how could I make that man go on a high-speed chase? How could you all give me extra points for that and 

not -- and I wasn’t even a driver? So it’s—I was going 50—it clearly said I was a passenger, that front seat 

passenger.” (R. 56, PageID 252). In response, the court addressed Golson and concluded: “nonetheless—I’m in a 

position where I’ve set the offense level.” (Id. at 253).
No. 23-3078 United States v. Golson Page 6

(emphasis in original). Notably, no such request was made below. Moreover, the allocution 

statements occurred after the district court had made its findings as to all objections to the 

enhancement and were not revisited by Golson’s counsel3 when the court queried the parties 

about continued concerns or objections as required under Bostic, 371 F.3d at 872–73.

In further support of his argument that the objection was preserved for appellate review, 

Golson directs us to a statement from the PSR where the probation officer described Golson’s 

objection: “The defendant cited unspecified case law and Due Process of Law, which forbids the 

‘stretching’ of this section to include benign activity such as running away or fleeing in a 

vehicle.” (R. 37, Page ID 176). But this opaque reference does little to establish that Golson’s 

challenge was based on his status as a passenger. Such a concealed mention of an objection 

cannot rise to the level of a “specific objection” for purposes of issue preservation because it 

failed to “provide[] the district court with an opportunity to address the error in the first instance 

and [does not] allow[] this court to engage in more meaningful review.” Bostic, 371 F.3d at 871.

Golson had multiple opportunities after the filing of the PSR to clarify his position and to 

specifically object to the enhancement based on the premise that he was not the driver of the 

vehicle; Golson failed to do so. As such, this argument was not properly preserved for appeal. 

Golson’s failure to preserve the issue is not fatal to his claim, however. As explained below, we 

review for plain error.

A.

Standard of Review. “On appeal, district court sentencing determinations are reviewed 

for reasonableness.” United States v. Gates, 48 F.4th 463, 468 (6th Cir. 2022). 

3Notably, FED. R. CRIM. P. 32(i)(1)(D) permits a party “for good cause” to raise a new objection before the 

sentence is imposed. Yet, no such request, let alone argument for cause, was made here. In finding as we have, we 

do not close the door on a defendant’s ability to preserve a previously-unraised issue during allocution and have no 

occasion to quibble with prior non-binding rulings finding or suggesting preservation through allocution. See, e.g.,

United States v. Boese, 187 F.3d 638 (6th Cir. 1999) (unpublished table decision) (finding defendant’s objection to 

application of the Armed Career Criminal Act during allocution preserved issue for appeal, without further 

discussion of circumstances resulting in defendant’s, rather than counsel’s, raising the issue); United States v. 

Flowers, 428 F. App’x 526, 529 (6th Cir. 2011) (upholding district court’s striking of defendant’s pro se letter of 

allocution raising new objection(s) as violative of the rule against hybrid representation, but noting in dicta the 

defendant’s failure to mention the objection in his allocution—as well as counsel’s failure to raise it at sentencing—

was grounds to find the issue not preserved). 
No. 23-3078 United States v. Golson Page 7

“The reasonableness inquiry has two components: procedural and substantive.” Id. at 468–69 

(citing Gall v. United States, 552 U.S. 38, 51 (2007)). Procedural error occurs when the district 

court “fails to calculate (or improperly calculates) the Guidelines range, treats the Guidelines as 

mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous 

facts, or fails to adequately explain the chosen sentence.” Id. at 469 (quoting United States v. 

Fowler, 819 F.3d 298, 304 (6th Cir. 2016)) (cleaned up). The district court’s application of the 

§ 3C1.2 enhancement—Golson’s sole challenge on appeal—is a matter of procedural 

reasonableness. 

Although courts generally review whether a sentence is reasonable under abuse of 

discretion, see United States v. Pennington, 78 F.4th 955, 962 (6th Cir. 2023), “[w]here a 

defendant fails to properly preserve an issue for appeal, that claim is subject to review for plain 

error only.” Thomas-Mathews, 81 F.4th at 541 (quoting Herrera-Zuniga, 571 F.3d at 580); see 

also United States v. Hymes, 19 F.4th 928, 933 (6th Cir. 2021) (“Where a defendant fails to 

preserve a procedural reasonableness argument, the plain error standard further constrains our 

review.”). To establish the requirements for plain error relief, Golson “must show the district 

court committed (1) an error that was (2) plain and (3) affected his ‘substantial rights.’ If he can 

satisfy those three ‘threshold requirements,’ then we have discretion to grant relief only if (4) we 

conclude ‘that the error had a serious effect on the fairness, integrity or public reputation of 

judicial proceedings.’” United States v. Simmonds, 62 F.4th 961, 964 (6th Cir. 2023) (internal 

citations omitted) (quoting Greer v. United States, 141 S. Ct. 2090, 2096–97 (2021)). 

“Satisfying all four prongs of the plain-error test is difficult.” Greer, 141 S. Ct. at 2097 (internal 

quotations omitted). And because the plain-error standard is “extremely deferential,” we “will 

reverse only in exceptional circumstances to correct obvious errors that would result in a 

miscarriage of justice.” Hymes, 19 F.4th at 933; see also United States v. Murphy, 241 F.3d 447, 

451 (6th Cir. 2001) (“Plain errors are limited to those harmful ones so rank that they should have 

been apparent to the trial judge without objection, or that strike at fundamental fairness, honesty, 

or public reputation of the trial.”) (quoting United States v. Evans, 883 F.2d 496, 499 (6th Cir. 

1989)). Notably here, whether we review for plain error or abuse of discretion—in which case 

we weigh whether we are “left with a definite and firm conviction that the district court 

committed a clear error of judgment,” United States v. Periz-Rodriguez, 960 F.3d 748, 753 (6th 
No. 23-3078 United States v. Golson Page 8

Cir. 2020) (citation omitted)—the undisputed facts in the PSR support the district court’s finding 

that the § 3C1.2 enhancement is applicable to Golson. 

B.

When reviewing the first prong of the plain-error standard, we look for “forfeited-butreversable error.” Simmonds, 62 F.4th at 964 (quoting United States v. Olano, 507 U.S. 725, 732 

(1993)). To satisfy this prong, Golson must show that the district court incorrectly applied the 

two-level enhancement based on the record. See id.; see also FED. R. CRIM. P. 52(b). Because 

the record supports an inference that Golson participated in the flight from law enforcement, 

Golson cannot demonstrate error. 

Sentence Enhancement Pursuant to U.S.S.G. § 3C1.2.

4

 Golson maintains that the district 

court erroneously applied the two-level enhancement for reckless endangerment during flight 

from law enforcement because he was not the driver of the vehicle and did not facilitate the 

chase. As a result, Golson argues that his sentence is procedurally unreasonable. 

“We review a district court’s ‘legal interpretation of the Guidelines de novo and its 

factual findings’ for clear error.” United States v. Jones, 81 F.4th 591, 597 (6th Cir. 2023) 

(quoting United States v. Byrd, 689 F.3d 636, 639 (6th Cir. 2012)). The burden of proof lies with 

the government to show, by a preponderance of the evidence, that a sentencing enhancement 

applies. United States v. Bourquin, 966 F.3d 428, 433 (6th Cir. 2020). Under U.S.S.G. § 3C1.2, 

a defendant will receive a two-level sentencing enhancement “if [he or she] recklessly created a 

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

law enforcement officer.” “Reckless” in this context means that the “conduct was at least 

reckless [as defined in U.S.S.G. § 2A1.4 cmt. n.1] and includes any higher level of culpability.” 

U.S.S.G. § 3C1.2 cmt. n.2. And as noted above, a defendant subject to this section “is 

4To the extent that Golson argues that the district court erred in applying a different base offense level from 

the one provided in the plea agreement, this argument has no merit because courts are permitted to do so in Rule 

11(c)(1)(B) plea agreements, which is the nature of the agreement before this court. See United States v. Vinson, 

No. 22-3028, 2023 WL 2624173, at *4 (6th Cir. Mar. 24, 2023) (“[U]nder Federal Rule [of Criminal Procedure] 

11(c)(1)(B)[,] the court is not required to follow the base offense level stipulated in the plea agreement.”). 
No. 23-3078 United States v. Golson Page 9

accountable for the defendant’s own conduct and for conduct that the defendant aided or abetted, 

counseled, commanded, induced, procured, or willfully caused.” Id. at cmt. n.5.

To apply the § 3C1.2 enhancement to a passenger in a vehicle evading law enforcement, 

“the district court must specifically find that the passenger was responsible for or brought about 

the driver’s conduct in some way, and it must explain why.” Byrd, 689 F.3d at 640 (internal 

quotation marks omitted). This is because holding a passenger liable for a driver’s reckless 

conduct requires that there be “‘some form of direct or active participation’ in the reckless 

driving by the passenger.” Id. (quoting United States v. Chong, 285 F.3d 343, 346 (4th Cir. 

2002)). In the absence of direct evidence, courts may “infer that the passenger caused or 

encouraged the reckless driving based on conduct occurring before, during, or after a high-speed 

chase.” Id. (internal quotation marks omitted). But there are limits to making such an inference. 

The mere fact that a defendant is a passenger in a vehicle where a co-defendant is driving 

recklessly is not enough to apply § 3C1.2. See United States v. Cespedes, 663 F.3d 685, 690 (3d 

Cir. 2011). Nor is the idea that “a reckless getaway is a reasonably foreseeable outcome of the 

underlying crime” sufficient by itself to apply the enhancement. Byrd, 689 F.3d at 640. Rather,

the government must proffer evidence to show the direct or active involvement of the passenger, 

and if the argument is appropriately raised before the district court for review, the court must 

articulate its justification for imposing the enhancement. 

Here, we have found that Golson did not appropriately raise the issue before the district 

court. As a result, there was no targeted discussion about Golson’s status as a passenger in 

assessing the applicability of the enhancement at sentencing. Nevertheless, the stipulated facts in 

the PSR provide an adequate record to support an inference of Golson’s culpability in the 

reckless flight from law enforcement. See United States v. Armes, 953 F.3d 875, 880 (6th Cir. 

2020) (explaining that it is well-established that courts “may accept any undisputed portion of 

the presentence report as a finding of fact”) (emphasis in original) (quoting FED. R. CRIM. P. 

32(i)(3)(A)). First, Golson was an active participant in a crime (a shooting in broad daylight), 

with multiple witnesses who had the means—in this case telephones—to promptly report the 

incident to authorities. Like in Byrd, it is reasonable to infer that flight would be necessary after 

such a public display. See Byrd, 689 F.3d at 641 (noting that “Byrd . . . participated in a robbery 
No. 23-3078 United States v. Golson Page 10

that would entail employee witnesses who likely had access to alarms”). Further, Golson’s 

extensive criminal record—placing him in the highest criminal history category of VI—

combined with involvement in fresh, publicly displayed, violent criminal conduct lends credence 

to the notion that Golson was incentivized to flee at any cost. See United States v. Conley, 131 

F.3d 1387, 1391 (10th Cir. 1997) (noting that a relevant factor to apply the § 3C1.2 enhancement 

was that “the Appellants were leaving the scene of a very serious crime, providing a motive to 

take desperate—and reckless—measures to flee and elude capture”). The preceding facts are 

buttressed by the fact that once the vehicle crashed after speeding through a neighborhood, 

Golson immediately hopped out of the vehicle and ran away from the car and his fellow 

occupants. 

Notably, we have previously viewed similar conduct as an indication that a passenger 

likely actively participated in the reckless flight. See Byrd, 689 F.3d at 641 (noting as a relevant 

fact in applying § 3C1.2 that “[o]nce the reckless, high-speed chase ended, Byrd continued to 

flee on foot”); United States v. Thompson, No. 97-3166, 1998 WL 553050, at *2 (6th Cir. Aug. 

19, 1998) (explaining that defendant’s “abandoning the car following the chase” was one of the 

factors “indicat[ing] active involvement” in reckless vehicle flight). Finally, six weeks later, 

Golson was involved in another shooting and there, too, he immediately fled the scene of the 

crime. Given Golson’s pattern and history of flight after dangerous situations, it is reasonable to 

infer that he was an active participant rather than a passive presence in the reckless flight from 

the scene of the crime in April 2021. See, e.g., Byrd, 689 F.3d at 642 (explaining that for a 

defendant with prior history of reckless flight from the police, “it was not clearly erroneous to 

infer that [the defendant’s] participation in yet another reckless flight is more likely to be active 

than passive”). We therefore find no error, plain or otherwise, in the district court’s application 

of § 3C1.2. 

III.

For the foregoing reasons, we AFFIRM.