Upward Variance for "Exceptional" Reckless Endangerment Approved
United States v. Osborne, ___ F.3d ___ , 2010 WL 277134 (10th Cir. 2010) (per curiam)
The Tenth upholds an upward departure of two levels for reckless endangerment during flight in excess of the reckless endangerment already provided for by the adjustment under the guidelines (so 2 levels up under § 3C1.2, and another 2 level departure). The Tenth determines that the district court legally erred in determining that all high-speed chases automatically deserved a departure. However, the district court finding that the circumstances of the car chase were “exceptional” and “outside the heartland”–75 mph in a 25 mph zone, four 50 mph turns through a busy Wal-Mart parking lot while being chased by numerous police vehicles–was a factual determination reviewed with substantial deference. The court did not abuse its discretion in departing.
The Tenth upholds an upward departure of two levels for reckless endangerment during flight in excess of the reckless endangerment already provided for by the adjustment under the guidelines (so 2 levels up under § 3C1.2, and another 2 level departure). The Tenth determines that the district court legally erred in determining that all high-speed chases automatically deserved a departure. However, the district court finding that the circumstances of the car chase were “exceptional” and “outside the heartland”–75 mph in a 25 mph zone, four 50 mph turns through a busy Wal-Mart parking lot while being chased by numerous police vehicles–was a factual determination reviewed with substantial deference. The court did not abuse its discretion in departing.
posted by Anonymous at 9:01 AM
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