Reyes-Oseguera

Gonzalo Reyes-Oseguera and David Kirsch, codefendants, appeal the district court’s application of a two-level sentence enhancement for reckless endangerment during flight, pursuant to USSG § 3C1.2. The court imposed the enhancement in Kirsch’s case because he fled across a thoroughfare in medium to heavy traffic, and in Reyes-Ose-guera’s case because he fled from an armed officer, forcing the officer to wrestle with him to apprehend him. We must decide whether the circumstances surrounding each defendant’s respective flight warrant the enhancement for reckless endangerment.

Because the district court’s findings regarding Kirsch—that by running through busy traffic he created a substantial risk to motorists—are plausible, we affirm Kirsch’s sentence. However, because the record is too incomplete to support the district court’s findings that an armed law enforcement agent was forced to tackle Reyes-Oseguera to subdue him, we hold that the district court clearly erred in applying the enhancement to Reyes-Oseguera’s sentence. Thus, we vacate the sentence and remand to the district court with instructions to resentence Reyes-Oseguera in accordance with its alternative…

concurring in part and dissenting in part.

I concur with all of Judge Trott’s thoughtful opinion save the disposition of Defendant Kirseh’s appeal contained in section II. In this ease, the district court sua sponte raised *1485 the question of sentence enhancement beyond that recommended in the pre-sentence report or by the government. The undisputed evidence reveals that Defendant Kirsch, a polio victim, hobbled six car lengths before being apprehended. Aside from the mere fact that traffic stopped, there is no evidence that motorists were put at any risk, and certainly not the “substantial risk of death or serious bodily injury” required by U.S.S.G. § 8C1.2. Indeed, the scant record conflicts as to whether traffic halted in reaction to the red lights and sirens or because Kirsch crossed traffic lanes.

These facts stand in contrast to the previous application of section 3C1.2 to barricaded standoffs and high speed chases. See United States v. Campbell, 42 F.3d 1199 (9th Cir.1994) (twelve hour police standoff involving seventy law enforcement officers and violent threats); United States v. Giacometti, 28 F.3d 698 (7th Cir.1994) (100 m.p.h. case through a residential…