BACKGROUND

I. Ellen Reiche interferes with a railroad track’s signaling system to protest

fossil fuels.

Around midnight on Thanksgiving weekend in 2020, Ellen Reiche and

Samantha Brooks snuck onto BNSF Railway’s railroad tracks near Bellingham,

Washington. The women wore masks and black clothing to evade detection. They

also left their cell phones at home to avoid digital footprints that could place them at

the railroad tracks.

Armed with knowledge gained from the internet, Reiche carried supplies to

create a “shunt,” a wire apparatus that connects to railroad tracks. A shunt disrupts

the rail signaling system by indicating that the track is occupied or obstructed, thus

causing incoming trains to stop with little notice. Reiche and Brooks successfully

placed the shunt on the tracks, intending to “directly impede the fossil fuel supply

chain” by stopping an incoming train carrying crude oil.

The Sheriff’s Office deployed two deputies to the area after a motion-sensing

camera captured images of Reiche and Brooks on the railroad tracks. When the first

deputy arrived, he saw the women crouched down over the tracks. They walked

away from the deputy after he identified himself, but they cooperated after the

deputy jogged towards them. When the deputy questioned Reiche and Brooks, the

women were evasive and untruthful.

3 The deputies later found a wire shunt concealed under rocks, near a section of

the rail that looked like it had been cleaned of rust to improve connectivity between

the shunt and the signaling system. The deputies arrested the women and searched

Reiche’s bag, in which they found wire, a drill with an attachment that could be used

to clean rust off the rails, scissors, and gloves.

A grand jury indicted Reiche and Brooks with one count of Violence Against

Railroad Carriers in violation of 18 U.S.C. § 1992(a)(5). Brooks pleaded guilty,

while Reiche opted for a jury trial.

II. The jury unanimously votes to convict Reiche of Violence Against

Railroad Carriers.

At trial, the government called a BNSF supervisor to testify as an expert in

rail signal systems. The expert explained that shunting is a “very dangerous act.” A

shunt causes the rail system to falsely detect that another train is on the tracks and

thus signal for oncoming trains to stop. This can cause a “braking event,” in which

a train engineer must make an emergency stop if he or she lacks sufficient warning

to gradually slow to a halt. If the engineer does not react in time, the train will

automatically stop. BNSF witnesses explained that, whether because of an

emergency stop or an automatic stop, suddenly stopping a train can cause the

connectors between train cars to break, which can lead to decoupling or derailment.

Only about a month before this incident, a train had separated “very violently” near

Bellingham after a shunt forced a braking event.

4 The expert also testified that railroad crossings use the same signaling system

as trains. A shunt can thus reduce or eliminate the warning times to motorists

approaching a railroad crossing. The expert explained that Reiche’s placement of

the shunt within 200 feet of a railroad crossing would have interfered with the

crossing signals. If a train had approached that shunt, the expert concluded that the

train would have “very likely” reached the road before the first warning light

engaged, endangering any drivers who might have been at the intersection.

Throughout the trial, Reiche’s counsel maintained that the evidence failed to

establish that she placed the shunt on the track. She also argued that the government

failed to prove that the shunt was attached to the rails, that the track indication was

so brief that it did not count as impairing the operation of the railway, and that

something other than the shunt might have caused the manipulation of the signal

system.

The jury voted to convict Reiche.

III. At the sentencing hearing, the district court rejects Reiche’s arguments.

At Reiche’s sentencing hearing, the parties addressed (1) whether Reiche

“recklessly endangered” the safety of a mass transportation vehicle under U.S.S.G.

§ 2A5.2(a)(2), which carries a nine-point sentencing enhancement, and (2) whether

the district court should credit Reiche’s acceptance of responsibility for a downward

sentencing adjustment.

5 Reiche argued that she was unaware of the risks posed by a shunt and thus

should not receive a sentencing enhancement for recklessly endangering the safety

of a mass transportation vehicle. To support her argument, Reiche submitted a letter

explaining that she learned about shunting from eco-activist websites that advocated

impeding the fossil fuel supply chain. She explained that she studied articles and

reports that provided instructions on how to shunt a train but maintained that she

never read about “any kind of danger associated with the act.” Reiche thus argued

that she thought that shunting was an “entirely safe” way to protest climate change

and only realized its dangerousness when confronted with the government’s

evidence at trial. But one website printout that Reiche provided to the court

described shunting as “rail sabotage” and advised readers to be “careful with

yourselves, fingerprints, and DNA.”

Reiche also submitted a letter to the court in which she stated that she accepted

responsibility for her actions. She thus argued that, even though she elected to go to

trial, she should be entitled to a two-level reduction for acceptance of responsibility.

The government disagreed. It argued that Reiche acted recklessly because a

reasonable person would appreciate the risk of interfering with a railway signaling

system. The government argued that it was “simply not believable” that Reiche

thought shunting was “entirely safe.” The government also noted that Reiche’s

preparations, actions at the railway, and evasive answers to law enforcement

6 suggested that she understood the risks of her conduct. Finally, the government

maintained that Reiche’s conduct was “not consistent with what the guidelines

consider a genuine acceptance of responsibility.”

The district court agreed with the Probation Office’s sentencing

recommendation. It first found by clear and convincing evidence that Reiche was

aware of the dangers of placing a shunt. The court reasoned that it is “common

knowledge” that tampering with a train signaling system may cause a “catastrophic

incident” and that Reiche’s careful research and preparation—coupled with her high

intelligence—made it unlikely that she was ignorant of these risks.

Next, the district court noted that it had the authority to grant a downward

adjustment for acceptance of responsibility, even though Reiche went to trial but it

declined to exercise that authority because it did not find Reiche’s avowed remorse

convincing. Reiche told the court that she thought shunting was an “entirely safe

and peaceful form of protest.” But the court explained that Reiche’s persistent denial

of guilt and the severity of her conduct undermined her claim that she regretted her

actions. As the district court stated, it would have given “a lot more credit to her

letter, perhaps, if she’d simply, at some point in the trial, said, ‘I get it. I

understand.’” The court clarified that it was “not punishing [Reiche] for going to

trial.” Rather, it simply did not find facts to support that “she deserves the reward

for that early acceptance of responsibility.”

7 The court imposed a below-Guidelines sentence of twelve months and one

day of imprisonment, plus three years of supervised release. Reiche timely appealed.

STANDARD OF REVIEW

This court reviews “the district court’s interpretation of the Sentencing

Guidelines de novo, its factual findings for clear error, and its application of the

Guidelines to the facts for abuse of discretion.” United States v. George, 949 F.3d

1181, 1184 (9th Cir.) (citing United States v. Gasca-Ruiz, 852 F.3d 1167, 1170–72

(9th Cir. 2017) (en banc)), cert. denied, 141 S. Ct. 605 (2020). “[A]s a general rule,

a district court’s application of the Sentencing Guidelines to the facts of a given case

should be reviewed for abuse of discretion.” Gasca-Ruiz, 852 F.3d at 1170. If the

district court selected the right Guidelines provision, de novo review is appropriate

only when “in the course of rendering its decision, the district court formulates or

adopts a generalized rule that will apply to an entire class of cases, not just to the

case at hand.” Id. at 1171.

ANALYSIS

I. The district court did not err in finding that Reiche recklessly endangered

the safety of a mass transportation vehicle.

Under the U.S. Sentencing Guidelines, a defendant convicted of Violence

Against Railroad Carriers, 18 U.S.C. § 1992(a)(5), starts off with a base offense level

of nine. U.S.S.G § 2A5.2(a)(4). But “if the offense involved recklessly endangering

the safety of . . . a mass transportation vehicle,” the base offense level ratchets up to

8 18. Id. § 2A5.2(a)(2). To apply a sentencing enhancement based on recklessness, a

district court must find by clear and convincing evidence that (1) “the defendant was

aware of the risk created by his conduct” and (2) “the risk was of such a nature and

degree that to disregard that risk constituted a gross deviation from the standard of

care that a reasonable person would exercise in such a situation.” United States v.

Gardenhire, 784 F.3d 1277, 1280 (9th Cir. 2015) (quoting U.S.S.G. § 2A1.4 cmt.

n.1). We address only the first prong because Reiche has contested only her

awareness of the risk posed by her conduct.

A defendant is aware of the risk created by her conduct when she knows “facts

which, if considered and weighed in a reasonable manner, indicate a substantial and

unjustifiable risk . . . , and the defendant knew of that risk.” United States v.

Rodriguez, 880 F.3d 1151, 1162 (9th Cir. 2018) (emphasis omitted). Importantly,

the “obviousness of a risk may be used to prove subjective knowledge.” Harrington

v. Scribner, 785 F.3d 1299, 1304 (9th Cir. 2015); see also Mendiola-Martinez v.

Arpaio, 836 F.3d 1239, 1256 (9th Cir. 2016) (collecting cases) (“A jury could also

infer the County Defendants’ awareness . . . because the risk is obvious.”). A court

thus may infer a defendant’s subjective awareness of risk if a reasonable person

would understand that the defendant’s actions are obviously dangerous.

Reiche relies on our decision in United States v. Gardenhire to argue against

the reckless endangerment enhancement. In that case, the defendant, an eighteen-

9 year-old boy, aimed a laser pointer at an airplane flying over two-thousand feet in

the air after being warned “not to shine the laser at anyone’s eyes because it would

blind people.” 784 F.3d at 1281. This court reversed the district court’s reliance on

the reckless endangerment enhancement, ruling that the government had not shown

that the defendant understood the risks or that the dangers “were of general

knowledge to the average person, or of specific knowledge to teens.” Id. at 1283.

As the court put it, “knowing that a laser beam can cause blindness when pointed

directly at a person’s eyes is very different than knowing that a laser beam can be

distracting to pilots who are both enclosed in a cockpit and at least 2,640 feet away.”

Id. at 1281; see also United States v. Rodriguez, 790 F.3d 951, 960 (9th Cir. 2015).

On the other hand, in United States v. Naghani, we affirmed the reckless

endangerment enhancement for a defendant who lit a cigarette in an airplane

bathroom, set off the smoke alarm, and then threatened to “kill all Americans.” 361

F.3d 1255, 1258–59 (9th Cir. 2004). We held that the district court properly inferred

that “Naghani was aware of the risk created by his smoking, obstreperous behavior

and threats,” emphasizing that “Naghani should have been aware that his behavior

would divert the flight attendants’ attention from their duties and require their

presence,” which could have impeded “an effective response by the flight

attendants” if “an actual emergency had arisen.” Id. at 1263.

We believe Naghani is more analogous here because Reiche’s actions (like

10 the defendant’s in that case) were obviously reckless and risky. It does not take a

locomotive engineer to recognize that forcing a freight train to come to a sudden stop

endangers the safety of those on and around it. Cf. United States v. Gonzalez, 492

F.3d 1031, 1038 (9th Cir. 2007) (“It doesn’t take an aeronautical engineer to

recognize that a threat of a bomb . . . and the havoc that such a threat might cause is

a threat to the safety of the aircraft.”). Indeed, it is a common trope even in cartoons

and comics that a speeding train cannot stop quickly and may derail in trying to do

so. And common sense underscores the danger of having a speeding vehicle stop

suddenly: Imagine if someone placed nails on a road to cause a flat tire in a bid to

stop cars. Perhaps the car could safely come to a stop—but any reasonable person

would recognize that this is a risky thing to do because the car, for example, may

careen off the road or spin out of control.

Yet Reiche planned to suddenly stop a speeding freight train carrying millions

of gallons of crude oil, as it passed through a residential neighborhood. Reiche might

be correct that the public does not know about the mechanics of shunting. And

Reiche herself might not have understood the exact science of a shunt’s interaction

with the train’s signaling system, even after studying materials teaching her how to

make and install a shunt. But Reiche had to know that if her shunting efforts

succeeded, she would have suddenly thrown the brakes on a moving freight train.

Simply stated, a reasonable person would be immediately aware of the obvious risks

11 of this conduct. The district court thus did not err in finding that the “obviousness

of [the] risk” meant that Reiche was subjectively aware of the risk presented by her

conduct. Harrington, 785 F.3d at 1304.

Moreover, Reiche’s research into shunting reinforces the district court’s

recklessness finding. Cf. Gardenhire, 784 F.3d at 1283 (mentioning knowledge

specific to teenagers). She is not some “knucklehead” teenager who “aimed a laser

pointer at a passing airplane just for the fun of it.” Rodriguez, 790 F.3d at 953.

Rather, she is a “highly intelligent” individual who carefully researched an illicit

way to disrupt a moving train. She gained specialized knowledge about rail

signaling systems and trains by studying “[m]ultiple reports and articles” on “various

websites.” The articles that Reiche submitted as examples of her research do not

discuss the dangers of shunting, but, as Reiche suggested, these were not the only

articles that she consulted. These facts are starkly different from those in Gardenhire

in which someone, especially a teenager, may not appreciate that a small laser pen

can blind an airplane pilot who is a couple thousand feet in the air. 784 F.3d at 1283.

In short, the district court’s finding was not “illogical, implausible, or without

support in the record” and thus does not warrant reversal. Id. at 1280 (quoting United

States v. Fitch, 659 F.3d 788, 797 (9th Cir. 2011)). It did not err in finding that

Reiche’s conduct “involved recklessly endangering the safety of . . . a mass

transportation vehicle” and thus did not abuse its discretion by applying the

12 corresponding sentencing enhancement under U.S.S.G. § 2A5.2(a)(2).

II. The district court did not err in denying Reiche a downward sentencing

adjustment for acceptance of responsibility.

The Sentencing Guidelines provide for a two-level downward sentencing

adjustment for a defendant’s acceptance of responsibility. U.S.S.G. § 3E1.1(a). To

be eligible for this reduction, the defendant bears the burden of showing that she has

genuinely accepted responsibility for her actions. See United States v. Ramos-

Medina, 706 F.3d 932, 940 (9th Cir. 2013); United States v. Cortes, 299 F.3d 1030,

1038 (9th Cir. 2002).

The Sentencing Guidelines state in a nonbinding comment that “this

adjustment is not intended to apply to a defendant who puts the government to its

burden of proof at trial by denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1

cmt. 2. But a “defendant’s decision to go to trial does not necessarily foreclose him

from receiving this offense-level decrease.” United States v. Tuan Ngoc Luong, 965

F.3d 973, 990 (9th Cir. 2020) (citing U.S.S.G. § 3E1.1 cmt. 2), cert. denied, 142 S.

Ct. 336 (2021). For example, the adjustment may be available “where a defendant

goes to trial to assert and preserve issues that do not relate to factual guilt,” U.S.S.G.

§ 3E1.1 cmt. 2, and “in appropriate circumstances the reduction is also available in

cases in which the defendant manifests genuine contrition for his acts but

13 nonetheless contests his factual guilt at trial,” United States v. McKinney, 15 F.3d

849, 853 (9th Cir. 1994).

Reiche argues that the district court erred in its interpretation of the Sentencing

Guidelines by deferring to the nonbinding comment that the acceptance-of-

responsibility adjustment should not apply to defendants who contest their factual

guilt at trial. See U.S.S.G. § 3E1.1 cmt. 2. But the district court did not defer to the

comment. To the contrary, the court recognized that it had the authority to grant the

downward adjustment—it simply declined to do so considering the circumstances

here. See Ramos-Medina, 706 F.3d at 940 (holding that a defendant who goes to

trial “may still be eligible for a downward adjustment if, and only if, he has

‘otherwise demonstrated sincere contrition’” (quoting Cortes, 299 F.3d at 1038)).

In other words, the court did not adopt a general, per se rule foreclosing the

availability of the acceptance-of-responsibility adjustment; it determined that this

case did not warrant the downward adjustment.

The district court acknowledged that Reiche showed remorse for her actions.

It also believed Reiche’s statement that she grew to understand the severity of her

actions during the government’s presentation of its case. The court, however, was

not convinced that Reiche deserved a sentencing adjustment for showing acceptance

of responsibility for or understanding the severity of her actions. As the district court

noted, Reiche contested her responsibility throughout her trial. If Reiche came to

14 understand the severity of her actions, she could have, at some point in the trial, said,

“I get it. I understand.” Instead, she waited until after the jury returned a guilty

verdict before showing contrition. The district court thus concluded that it was “not

punishing [Reiche] for going to trial,” but it did not believe that she was entitled to

a downward adjustment for acceptance of responsibility. The district court did not

abuse its discretion in making this determination.

CONCLUSION

We AFFIRM the district court’s sentencing decisions.

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