United States of America, Plaintiff-appellee, v. John Arel Thibeault, Defendant-appellant, 24 F.3d 252 (9th Cir. 1994)

MEMORANDUM^** 

John Thibeault appeals his sentence in the district court following his plea of guilty to one count of bank robbery. Mr. Thibeault argues the district court erred in adjusting his base offense level upward for reckless endangerment during flight pursuant to U.S.S.G. Sec. 3C1.2.

Mr. Thibeault does not dispute that during his arrest he rammed two police cars in an attempt to elude capture and that this behavior endangered the safety of the officers. Instead he argues that this action was not taken during flight from the bank robbery. We agree.

Section 3C1.2 of the Sentencing Guidelines provides for a two level increase " [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." Thibeault did create such a risk in the course of fleeing from a law enforcement officer. This behavior, however, is not punishable in sentencing him for the bank robbery unless it "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." U.S.S.G. Sec. 1B1.3. The question presented then is whether Mr. Thibeault was attempting to avoid detection or responsibility for the bank robbery when he endangered the safety of the arresting officers.

The record contains no finding of fact of Thibeault's mental state at the time of his reckless conduct. The record, therefore, does not support the two level adjustment for reckless endangerment during flight. We VACATE the sentence and REMAND with directions that the district court make and enter sufficient findings in support of any sentence imposed upon the defendant.