Argued: January 31, 2019
from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:17-cr-00227-H-1)
Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.
Okereke, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.
J. Higdon, Jr., United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, Kristine L.
Fritz, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
AGEE and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit
appeal, Kevin Lee Dennings contends that the district court
improperly calculated his Sentencing Guidelines range by
including an offense characteristic enhancement for reckless
endangerment during flight under U.S.S.G. § 3C1.2. For
the reasons set out below, we affirm.
March 2017, Dennings approached a man while wearing a t-shirt
around his head and face. The man observed Dennings pull a
firearm out of his pocket. Believing he was being robbed, the
man punched Dennings. In the scuffle that followed,
Dennings' firearm discharged twice, although it's not
clear whether the discharge was intentional or accidental. No
one was injured by the gunfire.
Dennings heard police sirens, he disengaged from the scuffle
and fled. A police officer in the area saw Dennings running
with a "garment over his face" and pursued him.
J.A. 78. The officer stated that during the chase, he
observed "that Dennings' right hand was not empty
and freely swinging like his left hand, but [the officer] was
unable to determine if Dennings was digging in his pocket or
holding onto something." J.A. 78. Dennings ignored the
officer's repeated instructions to stop, but at some
point Dennings fell to the ground and the officer landed on
top of him. Although Dennings said he "gave up," he
was laying on his ...