# United States Court of Appeals **for the Fifth Circuit**

No. 19-40292

United States of America,

Plaintiff — Appellee,

versus Robert Ben Deckert,

Defendant — Appellant.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:18-CR-00019

Before Dennis, Southwick, and Ho, Circuit Judges

. James C. Ho, Circuit Judge : The U.S. Sentencing Guidelines pr ovide for a longer sentence—in the form of a two-level enhancement—when a defendant not only commits a crime, but also recklessly endangers others while fleeing a law enforcement officer in hopes of evading arrest for that crime. U.S.S.G. § 3C1.2. This appeal concerns the applic ation of the two-level reckless endangerment enhancement under U.S.S.G. § 3C1.2 to a certain category of offenses known as “groupable” offens es. When it comes to certain groupable offenses such as the drug tra fficking offense at issue in this case, United States Court of Appeals Fifth Circuit 

### FILED April 8, 2021 Lyle W. Cayce Clerk Case: 19-40292 Document: 00515813753 Page: 1 Date Filed: 04/08/2021No. 19-40292

2 we apply the reckless en dangerment enhancement ev en when the defendant is not convicted for the specific crime fr om which he recklessly flees—so long as the crime for which he is convicted is part of the “same . . . common scheme or plan.” U.S.S.G. § 1B1.3(a)(2). Because the facts of this case demonstrably satisfy the “same common scheme or plan” standard, we affirm the district co urt’s application of the two-level enhancement.

I. Robert Ben Deckert met a Hardin County officer investigating a suspicious trailer found on private prop erty. Deckert told the officer he did not own the trailer but wa s using it with the owne r’s permission. Deckert then left the premises. After determin ing that the trailer was stolen, officers investigated and found 530 grams of met hamphetamine and five firearms in the trailer. A Hardin Co unty court issued a warrant for Deckert’s arrest. Three days later, a Lumberton po lice officer saw Deckert speeding on his motorcycle through a business parkin g lot. Deckert re fused to pull over and led the officer on a hi gh-speed chase in both residential and business areas of Lumberton before he crashed. The officer searched Deckert and found 615 grams of methamphetamine, a meth pipe, and five syringes, two of which were full of methamphetamine. Police placed hi m under arrest. Deckert waived his righ ts to an attorney. He admitted that he trafficked in methamphetamine and that he had seen and handled at least four of the firearms found in the trailer. A grand jury indicted Deckert on two counts of possession with intent to distribute methamphetamine and one charge of carrying a fire arm during a drug trafficking offense. Deckert pleaded guilty to the first methampheta mine charge as well as the firearm charge. Case: 19-40292 Document: 00515813753 Page: 2 Date Filed: 04/08/2021No. 19-40292

3 The presentence report included a two-level upward adjustment for reckless endangerment during flight under U.S.S.G. § 3C1.2. Deckert objected to the enhancement on the ground that his reckless flight was related only to the second drug trafficking co unt, and therefore not related to the offense of conviction. The district cour t rejected his argument. The court instead concluded that the two drug offe nses were part of the same “common scheme or plan,” and therefore subject to the two-level enhancement according to subsection (a)(2 ) of U.S.S.G. § 1B1.3. Deckert appeals the se ntencing enhancement.

II. Deckert objected below and preserve d his argument on appeal, so we review the district court’s factua l findings for clear error and its interpretation of the Guidelines de novo. United States v. Halverson , 897 F.3d 645, 651 (5th Cir. 2018). A district court’s determination of relevant conduct is reviewed for clear error. United States v. Barfield , 941 F.3d 757, 761 (5th Cir. 2019).

A defendant’s relevant conduct is the conduct that a district court considers when determining whether a sentencing enhancement is appropriate. Section 1B1.3 of the Sent encing Guidelines provides different definitions of relevant conduct based on the defendant’s offense of conviction. It takes careful parsing—includin g consideration of the overall context of U.S.S.G. § 1B1.3—to understand why the district court was ultimately correct under subsection (a)(2) that the two-level enhancement applies here. So the relevant language from U.S.S.G. § 1B1.3 is copied here in full—with the language most relevant to this appeal in italics. It provides that the sentencing court shall take into consideration: Case: 19-40292 Document: 00515813753 Page: 3 Date Filed: 04/08/2021No. 19-40292

4 (a) . . . (1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant ; and (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that

were—

(i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of th at criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity; that occurred during the co mmission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense ; (2) solely with respect to offenses of a character for which § 3D1.2(d) would requ ire grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction

. . . . U.S.S.G. § 1B1.3 (emphasis added). Under subsection (a)(1)(A), a defend ant’s relevant conduct generally consists of all acts and omissions that he committed or caused during, in preparation for, or while covering up the offense for which he was convicted. U.S.S.G. § 1B1.3(a)(1)(A). And under subsection (a)(1)(B), if the defendant Case: 19-40292 Document: 00515813753 Page: 4 Date Filed: 04/08/2021No. 19-40292

5 has a partner in crime, the partner’s conduct can count, too. U.S.S.G. § 1B1.3(a)(1)(B). Importantly, it is the trailing (or hanging) clause of subsection (a)(1) that makes clear that either of these two categories of conduct must have “occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” Because th is clause trails behind the text of subsections (a)(1)(A) and (a)(1)(B), we tr eat it as located within subsection (a)(1)—and not within either subs ections (a)(1)(A) or (a)(1)(B). See United States v. Ainabe , 938 F.3d 685, 691 (5th Cir. 2019) (noting that the trailing clause “belongs more generally to § 1B1.3(a)(1)”) (quoting United States v. Valenzuela–Contreras , 340 F. App’x 230, 235 n.5 (5th Cir. 2009)). As we shall see, the location of the trailing clause in subsection (a)(1)—rather than within either su bsection (a)(1)(A) or (a)(1)(B)—matters to the proper resolution of this appeal. That is because this appeal concerns the application of subsection (a)(2) , not subsection (a)(1)—and because subsection (a)(2) refers sp ecifically to subsection s (a)(1)(A) and (a)(1)(B), and not more generally to everything in subsection (a)(1). Subsection (a)(2) defines relevant conduct “solely with respect to offenses of a character for which § 3D1. 2 would require grouping of multiple counts.” U.S.S.G. § 1B1.3(a)(2). Fo r those types of offenses, the Guidelines instruct courts to sentence a defendant based on how many times the defendant has been charged with that conduct. U.S.S.G. § 3D1.2. For example, if a defendant is charged with four counts of possessing a controlled substance, the court must group thos e four counts together and then calculate a single, combined offense level that will then be used to calculate the sentence for each count. Because th e point of grouping offenses is to take into account multiple, similar offens es, the Guidelines naturally employ a Case: 19-40292 Document: 00515813753 Page: 5 Date Filed: 04/08/2021No. 19-40292

6 different definition of relevant cond uct for groupable offe nses. U.S.S.G. § 1B1.3(a)(2). Section 1B1.3(a)(2) defines the de fendant’s relevant conduct for a groupable offense as “all acts and omi ssions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offe nse of conviction.” Id. Thus, when a defendant is convicted of a groupable offense, courts should look to all acts and omissions that were part of a similar course of conduct or common scheme as the offense of conviction. Accordingly, section 1B1.3(a)(2) pr esents the following question: Does the reference to “all acts and omissions described in subdivisions (1)(A) and (1)(B) above” incorporate the trailin g clause of subsection (a)(1), which requires that the acts and omissions occur during, in preparation for, or while covering up the offense of conviction? We are not the first to note this ambiguity. See , e.g. , United States v. Hodge , 805 F.3d 675, 682–83 (6th Cir. 2015) (“There is an ambiguity as to whether the phrase in (a)(2)—‘all acts and omissions described in subdivisio ns (1)(A) and (1)(B) above’—refers to (a)(1)(A) and (a)(1)(B) with the trailing clause or without the trailing clause.”) (quoting U.S.S.G. § 1B1.3(a)(2)). A careful reading of subsection (a)(2) shows that it does not incorporate the trailing clau se of subsection (a)(1)—bu t rather, only the text of subsections (a)(1)(A) and (a)(1)(B). As the Seventh Circuit has explained, “[s]ubsection (a)(2) of the guideline sp ecifically incorporates (a)(1)(A) and (a)(1)(B) but says nothing about the tra iling clause. In contrast, subsection (a)(3) of the guideline refers to all of (a)(1) and not merely subsections (a)(1)(A) and (a)(1)(B).” United States v. Johnson , 347 F.3d 635, 639 (7th Cir. 2003) (emphasis added). See also U.S.S.G. § 1B1.3(a)(3) (referring to “all harm that resulted from the acts and omissions specified in subsections (a)(1) Case: 19-40292 Document: 00515813753 Page: 6 Date Filed: 04/08/2021No. 19-40292

7 and (a)(2) above”). So be cause subsection (a)(2) references only subsections (a)(1)(A) and (a)(1)(B)—and not subsecti on (a)(1) as a whole—and the only difference between those provisions is the trailing clause, subsection (a)(2) must not incorporate the trailing clause. See Ainabe , 938 F.3d at 691 (noting that if subsection (a)(2) did include the trailing clause, “(a)(2) would have referred broadly to section (a)(1)”) (quoting Valenzuela–Contreras , 340 F. App’x at 235 n.5). Moreover, this reading makes sens e. To incorporate subsection (a)(1)’s requirement that the act or omi ssion occur during, in preparation for, or while covering up the offense of co nviction would render subsection (a)(2)’s definition of relevant cond uct as a “common scheme or plan” superfluous. Furthermore, groupable offenses are grouped together because they are of a similar character. See U.S.S.G. § 3D1.2. Th is characteristic of groupable offenses tracks subsection (a )(2)’s definition of relevant conduct as all acts and omissions that “were part of the same course of conduct or common scheme or plan as the offe nse of conviction.” U.S.S.G. § 1B1.3(a)(2). For these reasons, “a disjunctive interpretation of the Relevant Conduct Guideline ‘ensure[s] th at the statutory scheme is coherent and consistent.’” United States v. Ashford , 718 F.3d 377, 383 (4th Cir. 2013) (internal citation omitted) (quoting Healthkeepers, Inc. v. Richmond Ambulance Auth. , 642 F.3d 466, 472 (4th Cir. 2011)). Not surprisingly, then, this court recently adopted this reading of section 1B1.3 in Ainabe . We explained how, in a prior unpublished opinion, we had previously rejected the defend ant’s argument that subsection (a)(2) incorporates (a)(1)’s trailing clause: We rejected this argument in an unpublished opinion. In United States v. Valenzuela–Contreras , we noted that “[t]he plain language of § 1B1.3(a)(2) only refers to [(a)](1)(A) and [(a)](1)(B), not the ‘occurred during the commission’ language Case: 19-40292 Document: 00515813753 Page: 7 Date Filed: 04/08/2021No. 19-40292

8 which belongs more generally to § 1B1.3(a)(1). Otherwise, (a)(2) would have referred broadl y to section (a)(1).” . . . The reasoning in Valenzuela–Contreras is cogent and persuasive because it is supported by the text of the Guidelines, and we apply that reasoning here. 938 F.3d at 691 (alteration in original) (quoting Valenzuela–Contreras , 340 F. App’x at 235 n.5). 1 And notably, every other circuit to address this issue has reached the same conclusion. See , e.g. , United States v. Schock , 862 F.3d 563, 569 n.6 (6th Cir. 2017) (“The Guidelin es draw a distinction between (a)(1) and (a)(2) relevant conduct. It is one we must respect.”); Ashford , 718 F.3d at 383; United States v. McCants , 434 F.3d 557, 563 (D.C. Cir. 2006) (describing (a)(1) and (a)(2) as “d istinct criteria”); Jansen v. United States , 369 F.3d 237, 248 (3rd Cir. 2004) (“Section (a)(2) stan ds on its own and is not expanded or superseded by the provisions of Section (a)(1)”); Johnson , 347 F.3d at 639 (holding that “the reference to subs ections [(a)](1)(A) and [(a)](1)(B) in U.S.S.G. § 1B1.3(a)(2) refers only to the subsections themselves and not the trailing clause.”); United States v. Cuthbertson , 138 F.3d 1325, 1327 (10th Cir. 1998) (recognizing that “[s]ubsectio ns (a)(1) and (a)(2) adopt different rules”) (quoting U.S.S.G. § 1B1.3, cmt. background). Deckert’s offense of conviction, posse ssion of a controlled substance, is a groupable offense under § 3D1.2(d). See U.S.S.G. § 1B1.3(a)(2) (covering offenses “of a character for which § 3D 1.2(d) would requ ire grouping of

1 Valenzuela-Contreras also noted that “the comme ntary accompanying § 1B1.3 contemplates scenarios in which acts and omi ssions that are part of the ‘same course of conduct or common scheme or plan’ may be included under § 1B1.3(a)(2) but do not occur during, in preparation for, or in the course of attempting to avoid dete ction or responsibility for the offense of conviction.” 340 F. App’x at 235 n.5 (citing U.S.S.G. § 1B1.3 cmt. n.3). See also Ainabe , 938 F.3d at 691 n.18 (collecting examples). Case: 19-40292 Document: 00515813753 Page: 8 Date Filed: 04/08/2021No. 19-40292

9 multiple counts”); U.S.S.G. § 3D1.2(d) (requiring grouping “[w]hen the offense level is determined largely on the basis of . . . the quantity of a substance involved”). This means th at Deckert’s relevant conduct is defined by § 1B1.3(a)(2), and thus incl udes all acts and omissions that were part of the same common scheme or plan as his offense of conviction. “Conduct is part of a common scheme or plan if it is ‘substantially connected to [the offense of conviction] by at least one common factor, such as common victims, common accomp lices, common purpose, or similar modus operandi.’” United States v. Heard , 891 F.3d 574, 575–76 (5th Cir. 2018) (quoting United States v. Ortiz , 613 F.3d 550, 557 (5th Cir. 2010)). See also U.S.S.G. § 1B1.3 cmt. n.5(B). In a drug-trafficking case, relevant conduct includes acts that were part of th e common drug-trafficking scheme. Barfield , 941 F.3d at 762. Here, Deckert was caught with large, similar amounts of methamphetamine twice in four days in close geographic proximity. Because his flight from th e police was part of that drug-trafficking scheme, the district court properly considered that conduct and thus properly applied the reckless endangerment enhancement.

III. It is puzzling why the dissent disagrees with our analysis. After all, the dissent previously agreed with the same reading of subsection (a)(2) that we apply here, when it joined ou r court’s unanimous opinion in Ainabe

. For its part, the dissent defends its refusal to apply subsection (a)(2) here by invoking United States v. Southerland , 405 F.3d 263 (5th Cir. 2005). That is curious, considering that Southerland concerns the nexus requirement of subsection (a)(1), not the nexus requirement of subsection (a)(2).

As Southerland explains, under subsecti on (a)(1), the reckless endangerment enhancement applies only to those “acts or omissions Case: 19-40292 Document: 00515813753 Page: 9 Date Filed: 04/08/2021No. 19-40292

10 occurring during the offens e of conviction, the preparation for the offense of conviction, or the course of attempting to avoid detection or responsibility for the offense of conviction.” Id. at 268 (quoting U.S.S.G. § 1B1.3(a)(1)). By contrast, Southerland makes no pronouncement about the proper use of the reckless endangerment enhancement as applied to offenses covered by subsection (a)(2). Indeed, nowhere in Southerland does the court even mention, let alone construe, subsection (a)(2). If there is a valid basis for ignoring Ainabe and invoking Southerland in this case—even though the sentencing enhancement here arises under subsection (a)(2) rather than subsec tion (a)(1)—the dissent does not offer one. The dissent offers no theory to explain why it is wrong to apply subsection (a)(2) to this case. Nor do es the dissent explain why we should not apply the very same nexus requiremen t under subsection (a)(2) that it embraced in Ainabe

. * * * Section 1B1.3(a)(1) and (a)(2) contain different definitions of the relevant conduct. This case involves the definition in (a)(2). The district court here correctly applied that defi nition, and thus properly applied the reckless endangerment enhancement. Accordingly, we affirm. 2

2 Deckert also appeals the denial of his motions to suppress. But he waived the right to raise that challenge on appeal in his unconditional guilty plea. See , e.g. , United States v. Stevens , 487 F.3d 232, 238 (5th Cir. 2007). Case: 19-40292 Document: 00515813753 Page: 10 Date Filed: 04/08/2021No. 19-40292

11 James L. Dennis, Circuit Judge , dissenting in part and concurring in part in the judgment: I respectfully dissent from af firming the 2-level enhancement of Deckert’s sentence for reckless endang erment during flight because it is inconsistent with our circuit precedent, United States v. Southerland , 405 F.3d 263 (5th Cir. 2005) and the se ntencing guidelines. The flight adjustment was based on an incident that occurred when a Lumberton, Texas city police officer sought to arrest Decker t for a traffic violation on February 10, 2018. Because the flig ht did not have a nexus to Deckert’s “offense of conviction” of possessing methampheta mines and firearms on a separate date, February 6, 2018 , near Silsbee, Texas the adjustment was not permissible under the United States Se ntencing Guidelines. On a different issue, however, I agree with the majori ty that Deckert waived his right to reurge his motions to suppress by ente ring an unconditional guilty plea. Deckert pleaded guilty, without a pl ea agreement, to a drug offense and related firearm offense committed on February 6, 2018 near Silsbee, Texas. He did not plead guilty to any other offense. Deckert was also charged with a different drug offense committed in Lumberton, Texas on February 10, 2018. But Deckert did not plead guilty to that charge and it was dismissed. Therefore, the offense co mmitted on February 6, 2018 near Silsbee, Texas is Deckert’s only “offens e of conviction” in the present case. The “Application Instructions” to the United States Sentencing Guidelines, § 1B1.1, prov ide that the sentencing court shall determine the guideline range by applying the provis ions of the guidelines manual in the following order, starting with these three steps: (1) Determine, pursuant to § 1B1.2 (Applicable Guidelines), the offense guideline section from Chapter Two (Offense Conduct) applicable to the offense of conviction

. See § 1B1.2. Case: 19-40292 Document: 00515813753 Page: 11 Date Filed: 04/08/2021No. 19-40292

12 (2) Determine the base offense level and apply any appropriate specific offense characteristic s, cross references, and special instructions contained in the particular guideline in Chapter Two in the order listed. (3) Apply the adjustments as appropriate related to victim, role, and obstruction of justice from Parts A, B, and C of Chapter Three. U.S.S.G. § 1B1.1 (emphasis added). The district court’s first step in ca lculating a defendant’s sentence is to determine the offense guideline “applic able to the offense of conviction.” See U.S.S.G. § 1B1.1(a)(1). Thus, the Guidelines are clear that the “offense of conviction” is the key element in the sentencing process; the “offense of conviction” is the anchoring standard around which all other specific offense characteristics, adjustments, and inst ructions are gathered in order to determine a particular guideline range for a given defendant. Necessarily, these principles govern the application of a § 3C1.2 adjustment for “reckless endangerment during flight.” The adjustment provides that “[i]f the defendant reckle ssly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase by 2 levels.” Id. § 3C1.2. In United States v. Southerland , this court “read § 3C1.2 in the larger context of the guidelines,” 405 F

. 3d at 266, and held that, “in light of § 1B1.3’s express requirement that Chapter Three adjustments be based upon acts or omissions occurring during the offense of conviction, the preparation for the offense of conviction, or the course of attempting to avoid detectio n or responsibility for the offense of conviction,” a § 3C1.2 enhancement can apply only when there is a “nexus” between the defendant’s flight and the “offense of conviction .” Id. at 268. Case: 19-40292 Document: 00515813753 Page: 12 Date Filed: 04/08/2021No. 19-40292

13 Section 1B1.3, “Relevant Conduc t (Factors that Determine the Guideline Range),” in relevant part, reads: (a) Chapters Two (Offen se Conduct) and Three (Adjustments). Unless otherwise specified, . . . (iv) adjustments in Chapter Three, shal l be determined on the basis of the following: (1)(A) all acts and omissions committed , aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant ; . . . that occurred during the commission of the offense of conviction , in preparation for that offense , or in the course of attempting to avoid detection or responsibility for that offense . . .



### . § 1B1.3(a) (emphasis added); see Southerland , 405 F.3d at 267.

Southerland therefore recognized that Guidelines themselves are the source of the nexus requirement. In light of this requirement, the Southerland court rejected the government’s argu ment that no connection or nexus between the flight and the offense of conviction was needed because the § 3C1.2 adjustment itself did not mention a nexus, see Southerland , 405 F.3d at 268, and also rejected the government’s argument that a defendant who flees from law enforcement is necessarily attempting to evade responsibility for other potential charges because such reasoning was inconsistent with the need for a finding of a nexus as required by § 1B1.3(a). Id. at 269. Against this precedent, the majo rity erroneously reasons that Southerland is inapplicable because it involved a defendant who pleaded guilty to bank robbery and credit card fraud, see id. at 263, and did not involve a “groupable offense” like the drug offe nse that Deckert pleaded guilty to violating. From this unauthorized distinction, the majority erroneously Case: 19-40292 Document: 00515813753 Page: 13 Date Filed: 04/08/2021No. 19-40292

14 concludes that no nexus between the flight and the offense of conviction is required when a defendant is convic ted of a groupable offense involving a “common scheme or plan” to possess drugs. The majority’s conclusion fails to recognize that Southerland’s holding and its reasoning are faithful ap plications of U.S.S.G. § 1B1.3(a) that are not contingent on the type of offens es that a defendant is convicted of violating. Whether there is a nexus su ch that the § 3C1.2 adjustment can be applied resolves this case. If there is no nexus, the adjustment cannot be applied. There is no basis for a sentencing court, if it cannot find a nexus, to then continue into (a)(2) to appl y an adjustment. In addition to Southerland, all of the circuit courts of appeals to cons ider this issue agree that the § 3C1.2 adjustment applies only if there is a nexus between the flight and the offense of conviction. See e.g. United States v. Seals , 813 F.3d 1038, 1045–46 (7th Cir. 2016) (collecting cases); United States v. Porter , 413 F. App’x 526, 531 (3rd Cir. 2011); United States v. Dial , 524 F.3d 783, 787 (6th Cir. 2008); United States v. Gray , 512 F. App’x 803, 809 (10th Cir. 2013); see also Thomas W. Hutchison, et al, Federal Sentencing Law and Practice , § 3C1.2, at 1072 (2021 ed.). None of the inapposite cases cited by the majority are to the contrary, as they do not sanction applying a § 3C1.2 adjustment absent a nexus. Applying these foregoing principles to this case, it is clear that Deckert’s flight from a police officer on February 10 lacks a nexus with his offenses of conviction of possessing dr ugs and firearms on February 6. Nothing in the record proves that De ckert’s flight on February 10 was integral to, or part of, his February 6 offense of conviction or an attempt to evade responsibility for his February 6 offense of conviction . Indisputably, Deckert’s February 6 offenses of convic tion did not involve a flight or a motorcycle. The government has arguab ly proved, at most, that Deckert’s flight from a Lumberton, Texas city police officer was related to his traffic Case: 19-40292 Document: 00515813753 Page: 14 Date Filed: 04/08/2021No. 19-40292

15 offense and the drugs in his backpack on February 10. But Deckert did not plead guilty to possessing drugs on Febr uary 10 and that drug charge was dismissed. Deckert only pleaded guilty to possessing drug s and firearms on February 6, near Silsbee, Texas, and th e Guidelines nowhere permit a district court to substitute a different “offe nse” for the “offense of conviction” when calculating a sentence, including in the application of a flight adjustment. Thus, the district court erred in applying the § 3C1.2 adjustment, and in my view we shou ld therefore vacate and remand for resentencing. Because the majority holds otherw ise, I respectfully dissent. Case: 19-40292 Document: 00515813753 Page: 15 Date Filed: 04/08/2021