United States District Court, D. New Mexico
sentencing hearing on October 3, 2018, the Court heard the
testimony of Albuquerque Police Department Detective Eric
Endzel regarding the six offense level enhancement imposed in
paragraph 19 of the Presentence Investigation Report under
U.S.S.G. § 3A1.2(c)(1).,  Detective Endzel's testimony
was credible and established the following facts relevant to
whether Defendant “assaulted” Detective Endzel
“in a manner creating a substantial risk of serious
February 7, 2018 police officers chased Defendant, who was
driving a stolen vehicle, to a house where Defendant got into
a second vehicle as a passenger. Police followed the second
vehicle which was driven at high speeds. Eventually the
second vehicle stopped at a gas service station where it was
hemmed in by police vehicles. See Exhibit A, Doc.
No. 43. Detective Endzel was standing close to the stopped
second vehicle as Defendant got out of the front passenger
seat and started to run. Defendant lifted up his shirt,
reached into his waistband, and pulled out a hand gun.
Defendant fumbled the gun and reached down in an unsuccessful
effort to retrieve the gun when it fell to the ground.
Defendant then continued running away from the police
officers who chased Defendant on foot across a busy four lane
street and finally captured him. On observing Defendant
lifting his shirt and grabbing the pistol in his waistband,
Detective Endzel feared for his life. Had Defendant not
fumbled his weapon, Defendant easily could have used it to
seriously wound or kill Detective Endzel.
conclusion of the October 3, 2018 hearing the Court asked
counsel to brief the issue of whether an objective test or a
subjective test should be used in applying the language
“assaulted such officer” (in this case Detective
Endzel) “in a manner creating a substantial risk of
serious bodily injury.” Additionally, the Court asked
whether the language should be assessed from the viewpoint of
the defendant or the “law enforcement officer.”
In response to the Court's request, on October 15, 2018
Plaintiff filed The United States' Supplemental Brief
(Doc. No. 42) and on October 16, 2018 Defendant filed
Defendant's Supplemental Points and Authorities in
Support of the Sentencing Memorandum (Doc. No. 43). The Court
is convinced that U.S.S.G. § 3A1.2(c)(1) should be
applied based on the reasonable objective viewpoint of a law
Tenth Circuit addressed U.S.S.G § 3A1.2(c)(1) in
United States v. Ford, 613 F.3d 1263 (10th Cir.
2010). Initially, the Tenth Circuit noted that “At
least four circuits have found that a defendant reaching for
a gun during a police encounter creates a substantial risk of
serious bodily harm.” Id. at 1269 (citing
cases from the D.C., 1st, 7th, and 8th Circuits). Next, the
Tenth Circuit referred to the Seventh Circuit case of
United States v. Robinson, 537 F.3d 798 (7th Cir.
2008) in which “assault” was defined as
“conduct which places another in reasonable
apprehension of receiving a battery with intent to
‘cause apprehension' or actual ‘bodily
harm.'” Id. at 1269; Robinson,
537 F.3d at 802-03.
“contends that all of his actions after he pulled the
firearm from his midsection were consistent with discarding
the firearm so that the APD officers who surrounded him would
not feel the need to use deadly force.” Defendant's
Supplemental Points and Authorities in Support of the
Sentencing Memorandum (Doc. No. 43) at 3. Stated differently,
Defendant appears to be arguing that he intended to grab his
weapon only for the purpose of immediately getting rid of it
so that if and when the officers caught him as he ran away he
would no longer have a gun and the officers would then have
no reason to shoot him.
first problem with this argument is that he presented no
evidence about his intent. His second problem is that the
Tenth Circuit made it clear in Ford that U.S.S.G.
§ 3A1.2(c)(1) is not to be applied based on the
subjective intent of the defendant.
conclusion, the Court affirms the decision of the United
States Probation Officer to add six offense levels under
U.S.S.G. § 3A1.2(c)(1) as a Victim Related Adjustment.
Hence, the total offense level becomes 17 and the guideline
imprisonment range 27 to 33 months based on the Court's
prior ruling that the criminal history category is II.
 U.S.S.G. § 3A1.2(c)(1) provides
for a six level increase “If, in a manner creating a
substantial risk of serious bodily injury, the defendant or a
person for whose conduct the defendant is otherwise
accountable-(1) knowing or having reasonable cause to believe
that a person was a law enforcement officer, assaulted such
officer during the course of the offense or immediate flight
 The Court had previously determined
that at the time of his relevant conduct Defendant knew or
had reasonable cause to believe that Detective Endzel was a
law enforcement officer as ...