Eleventh Circuit Sends Back Sentencing for Fleeing and Eluding Defendant – U.S. v. Johnson

September 28, 2012 by David S. Seltzer

In the course of my job defending clients from serious criminal charges, I defend a lot of clients who are accused of fleeing from police in the course of another crime. Many states, including my own state of Florida, make it a crime to flee from police at high speeds, reasoning that this puts the officer and the public in danger. In federal court, however, this can be penalized with an enhancement of the sentence for the underlying crime, meaning the defendant serves more time on the same charge rather than facing an additional charge. In United States v. Carrell Johnson, the Eleventh U.S. Circuit Court of Appeals rejected this kind of sentence enhancement, finding that prosecutors provided insufficient proof that the defendant bore responsibility for the driver’s dangerous conduct.

Carrell Johnson helped another defendant rob a drugstore in Atlanta, and then was a passenger in the getaway car. To escape police cars that had surrounded the store, they rammed one car, sped and ignored traffic signals, causing such chaos that police called off the chase. After they crashed and were apprehended, Johnson pleaded guilty to what was presumably his part of the robbery: interfering with commerce by threats or violence, brandishing a firearm, and being a felon in possession of a firearm. His sentence was then enhanced by two levels for “recklessly creating a substantial risk of death or serious bodily injury” while fleeing from law enforcement. Johnson objected to the reckless endangerment enhancement several times, but the district court overruled.

In his appeal to the Eleventh Circuit, Johnson argued that his sentence was procedurally unreasonable because the district court did not support the sentence enhancement with fact-finding, and also should have made a specific finding as to the application of the reckless endangerment enhancement. The Sentencing Guidelines permit application of the enhancement for conduct the defendant “aided and abetted, counseled, commanded, induced, procured or willfully caused.” The Eleventh had addressed the situation in a previous case, and sent that case back for the trial court to consider whether the defendants had done any of those things toward the dangerous conduct at issue. The same applies to this case, the Eleventh said. Prosecutors must show that Johnson directed the car chase in some way, not just that he helped plan the robbery itself. From the current record, the Eleventh said, that wasn’t shown. Thus, it remanded the case for a new sentencing that answered those questions.

As a criminal defense attorney who handles robbery charges and other serious crimes, I am pleased to see the Eleventh Circuit establishing a standard for this sentence enhancement. A two-level sentence enhancement leads to more years in prison, so looking into whether Johnson was actually guilty of dangerous fleeing is extremely relevant to his civil rights. The prosecution is required to actually prove its allegations in every case, in fact—but sometimes, dislike of the underlying crime can lead to careless mistakes in the trial court. That’s why it’s absolutely vital for defendants accused of serious crimes like armed robbery to get help from an experienced lawyer who knows how to protect their rights.

Seltzer Law, P.A., represents clients in Miami, Fort Lauderdale and across south Florida who are accused of serious crimes, including robbery, theft and crimes of violence. If you’re facing charges and you’d like to discuss your options with an experienced attorney, call us today for a free consultation at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message through our website.

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