In U.S. v. Martikainen, No. 10-13337 (May 10, 2011), the Court reversed the imposition of a two-level enhancement under U.S.S.G. § 3C1.2 for recklessly endangering another in the course of fleeing from a law enforcement officer.
After a divorce and a visitation rights order, Martikainen absconded with his son by getting on a sailboat, and sailing into the Gulf of Mexico, where his sailboat was located and ultimately boarded by the Coast Guard. Martikainen cooperated with the boarding agents.
The Court noted that § 3C1.2 does not apply when there is no officer around. Here, law enforcement officers were tracking Martikainen’s sailboat but Martikainen was not fleeing any particular law enforcement officer, and was unaware of the Coast Guard pursuit until it was over, at which point he cooperated.
The sentencing court’s imposition of the § 3C1.2 enhancement was not harmless error, because the court stated that it was sentencing Martikainen in the middle of the guideline range, and this sentence exceeded the applicable range without the enhancement.