Eleventh Circuit Finds Sentence Enhancement Valid Because Officers’ Firearm Use Foreseeable – U.S. v. McQueen

February 22, 2012 by David S. Seltzer

Here in South Florida, we have a lot of coastline, much of which faces foreign jurisdictions. As a Fort Lauderdale criminal defense lawyer, I sometimes hear about illegal activities on the sea, including smuggling and illegal immigration as well as less serious charges like boating under the influence. In United States v. McQueen, defendant Kelsey James McQueen was accused of smuggling illegal immigrants off the coast of Palm Beach County, after being caught by federal law enforcement on the water. He pleaded guilty to three counts of attempted alien smuggling and one count of failing to obey an order by law enforcement, but challenged a sentence enhancement for the officers’ use of a firearm. The Eleventh U.S. Circuit Court of Appeals upheld the sentence, finding McQueen’s actions induced officers to fire.

The undisputed facts show that McQueen’s vessel, which was known to smuggle narcotics and people, was spotted by Customs and Border Protection late at night in April of 2010. Patrol boats approached the boat offshore with sirens and lights activated and ordered it to stop, but McQueen fled east. After chasing for three minutes, officers fired two illuminated warning shots and four “pepper balls” (not defined in the opinion). After three more minutes, the officers fired two more warning shots. When this failed to stop McQueen’s flight, the officers boarded the vessel while it was still in motion. Their search turned up 14 alien nationals without permission to enter the United States. McQueen was charged with, and pleaded guilty to, three counts of attempted alien smuggling and one count of failing to obey an officer’s orders. At sentencing, McQueen objected in vain to the application of a sentence enhancement “if a firearm is discharged.” He challenged that enhancement on appeal.

The Eleventh Circuit noted that the sentence enhancement can include discharges “induced” by the defendant, and that it has upheld the use of this enhancement on a defendant who was shot by the person he was attempting to rob. The issue in this case, the court said, is whether McQueen induced the Customs officers to shoot. Using the robbery case, it found that he had. McQueen argued that the officers fired unnecessarily and recklessly and their actions were not a foreseeable response to his flight, but the Eleventh disagreed. By attempting to commit a crime in the first place, then fleeing officers who had turned on lights and sirens and ordered him to stop, the court said, McQueen could reasonably have foreseen that illuminated warning shots could be used to gain his compliance. Thus, it upheld his seven-year sentence.

As a South Florida federal crimes defense attorney, I have concerns about this ruling. McQueen and other defendants cannot predict what law enforcement will do. To hold them responsible for law enforcement’s actions seems contrary to the spirit of the law. The previous case referenced by the court involved a robbery victim who fired after the defendant pulled a gun on him. If the defendant knows the victim is carrying, it’s easy to predict that the weapon might come out in a self-defense situation. By contrast, the Customs officers were not in a life-threatening situation and likely had multiple possible responses to a suspect who flees. This makes it far less predictable that they would choose warning shots. As a Miami-Dade immigration criminal defense lawyer, I would be interested in seeing how future courts rule on this issue.

If you’re charged with a crime in Miami or anywhere in south Florida, you need experienced representation right away. Seltzer Law, P.A., answers calls from clients and potential clients 24 hours a day and seven days a week, because we know law enforcement doesn’t just work 9 to 5. For a free consultation, call us anytime at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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