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 provide 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 application of the two-level reckless 

endangerment enhancement under U.S.S.G. § 3C1.2 to a certain category of 

offenses known as “groupable” offenses. When it comes to certain 

groupable offenses such as the drug trafficking offense at issue in this case, 

United States Court of Appeals 

Fifth Circuit 

FILED 

April 8, 2021 

Lyle W. Cayce 

Clerk 

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2 

we apply the reckless endangerment enhancement even when the defendant 

is not convicted for the specific crime from 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 court’s application of the 

two-level enhancement. 

I.

Robert Ben Deckert met a Hardin County officer investigating a 

suspicious trailer found on private property. Deckert told the officer he did 

not own the trailer but was using it with the owner’s permission. Deckert 

then left the premises. After determining that the trailer was stolen, officers 

investigated and found 530 grams of methamphetamine and five firearms in 

the trailer. A Hardin County court issued a warrant for Deckert’s arrest. 

Three days later, a Lumberton police officer saw Deckert speeding on 

his motorcycle through a business parking lot. Deckert refused to pull over 

and led the officer on a high-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 him under arrest. 

Deckert waived his rights 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 firearm during a drug trafficking offense. Deckert 

pleaded guilty to the first methamphetamine charge as well as the firearm 

charge. 

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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 count, and therefore not related to the 

offense of conviction. The district court rejected his argument. The court 

instead concluded that the two drug offenses 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 sentencing enhancement. 

II. 

Deckert objected below and preserved his argument on appeal, so we 

review the district court’s factual 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 Sentencing Guidelines provides different 

definitions of relevant conduct based on the defendant’s offense of 

conviction. 

It takes careful parsing—including 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: 

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(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 that criminal activity, and 

(iii) reasonably foreseeable in connection with 

that criminal activity; 

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; 

(2) solely with respect to offenses of a character for 

which § 3D1.2(d) would require 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 defendant’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 

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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 this clause trails behind the text of 

subsections (a)(1)(A) and (a)(1)(B), we treat it as located within subsection 

(a)(1)—and not within either subsections (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 subsection (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 specifically to subsections (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). For 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 those four counts together and then 

calculate a single, combined offense level that will then be used to calculate 

the sentence for each count. Because the point of grouping offenses is to take 

into account multiple, similar offenses, the Guidelines naturally employ a 

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different definition of relevant conduct for groupable offenses. U.S.S.G. 

§ 1B1.3(a)(2). 

Section 1B1.3(a)(2) defines the defendant’s relevant conduct for a 

groupable offense as “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.” 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) presents the following question: 

Does the reference to “all acts and omissions described in subdivisions (1)(A) 

and (1)(B) above” incorporate the trailing 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 subdivisions (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 clause of subsection (a)(1)—but 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 specifically incorporates (a)(1)(A) and 

(a)(1)(B) but says nothing about the trailing 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) 

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and (a)(2) above”). So because subsection (a)(2) references only subsections 

(a)(1)(A) and (a)(1)(B)—and not subsection (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 sense. To incorporate subsection 

(a)(1)’s requirement that the act or omission occur during, in preparation for, 

or while covering up the offense of conviction would render subsection 

(a)(2)’s definition of relevant conduct 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. This 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 offense of conviction.” U.S.S.G. 

§ 1B1.3(a)(2). For these reasons, “a disjunctive interpretation of the 

Relevant Conduct Guideline ‘ensure[s] that 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 defendant’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 

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which belongs more generally to § 1B1.3(a)(1). Otherwise, 

(a)(2) would have referred broadly 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 Guidelines 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 “distinct criteria”); Jansen v. United States, 369 F.3d 237, 

248 (3rd Cir. 2004) (“Section (a)(2) stands 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 subsections [(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]ubsections (a)(1) and (a)(2) adopt different 

rules”) (quoting U.S.S.G. § 1B1.3, cmt. background). 

Deckert’s offense of conviction, possession 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 § 3D1.2(d) would require grouping of 

1

 Valenzuela-Contreras also noted that “the commentary accompanying § 1B1.3 

contemplates scenarios in which acts and omissions 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 detection 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). 

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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 that Deckert’s relevant conduct is 

defined by § 1B1.3(a)(2), and thus includes 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 accomplices, 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 the 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 the 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 our 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 subsection (a)(1), the reckless 

endangerment enhancement applies only to those “acts or omissions 

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occurring during the offense 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 subsection (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 does the dissent explain why we should 

not apply the very same nexus requirement 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 definition, 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). 

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James L. Dennis, Circuit Judge, dissenting in part and concurring in part in 

the judgment: 

 I respectfully dissent from affirming the 2-level enhancement of 

Deckert’s sentence for reckless endangerment during flight because it is 

inconsistent with our circuit precedent, United States v. Southerland, 405 

F.3d 263 (5th Cir. 2005) and the sentencing guidelines. The flight 

adjustment was based on an incident that occurred when a Lumberton, Texas 

city police officer sought to arrest Deckert for a traffic violation on February 

10, 2018. Because the flight did not have a nexus to Deckert’s “offense of 

conviction” of possessing methamphetamines and firearms on a separate 

date, February 6, 2018, near Silsbee, Texas the adjustment was not 

permissible under the United States Sentencing Guidelines. On a different 

issue, however, I agree with the majority that Deckert waived his right to reurge his motions to suppress by entering an unconditional guilty plea. 

Deckert pleaded guilty, without a plea 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 committed on February 6, 2018 near 

Silsbee, Texas is Deckert’s only “offense of conviction” in the present case. 

 The “Application Instructions” to the United States Sentencing 

Guidelines, § 1B1.1, provide that the sentencing court shall determine the 

guideline range by applying the provisions 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. 

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(2) Determine the base offense level and apply any appropriate 

specific offense characteristics, 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 calculating a defendant’s sentence is 

to determine the offense guideline “applicable 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 instructions 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 recklessly 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 detection 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. 

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Section 1B1.3, “Relevant Conduct (Factors that Determine the 

Guideline Range),” in relevant part, reads: 

(a) Chapters Two (Offense Conduct) and Three 

(Adjustments). Unless otherwise specified, . . . (iv) 

adjustments in Chapter Three, shall 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 argument 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 majority 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 offense that Deckert pleaded guilty to 

violating. From this unauthorized distinction, the majority erroneously 

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concludes that no nexus between the flight and the offense of conviction is 

required when a defendant is convicted 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 applications of U.S.S.G. § 1B1.3(a) that 

are not contingent on the type of offenses that a defendant is convicted of 

violating. Whether there is a nexus such 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 apply an adjustment. In addition to Southerland, 

all of the circuit courts of appeals to consider 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 drugs and firearms on February 6. 

Nothing in the record proves that Deckert’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 conviction did not involve a flight or a 

motorcycle. The government has arguably proved, at most, that Deckert’s 

flight from a Lumberton, Texas city police officer was related to his traffic 

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offense and the drugs in his backpack on February 10. But Deckert did not 

plead guilty to possessing drugs on February 10 and that drug charge was 

dismissed. Deckert only pleaded guilty to possessing drugs and firearms on 

February 6, near Silsbee, Texas, and the Guidelines nowhere permit a district 

court to substitute a different “offense” 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 should therefore vacate and remand for 

resentencing. 

Because the majority holds otherwise, I respectfully dissent. 

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