Feckless Enganderment

United States v. Legros, No. 05-2828-cr (2d Cir. June 17, 2008) (Jacobs, Calabresi, Sack, CJJ)

When police officers responded to a “shots fired” radio call, they encountered three men. One of them, Legros, ran off, and tossed a gun along the way. That gun matched several spent shell casings recovered from the scene. A jury convicted Legros of being a felon in possession of a firearm.

At sentencing, he received the statutory maximum, 120 months; this was a guideline sentence – the range was 110 to 137 – that included a four-level enhancement for possessing the gun in connection with another felony offense. The theory advanced by the probation department (obviously just serving as a mouthpiece for the government) was that Legros had been shooting at someone named Christopher Passius, in a gang-related retaliation.

Legros contested the enhancement and, at a sentencing hearing, the government introduced, through a police officer, the hearsay statement of a witness who said he had seen Legros fire the gun. The statement indicated that there was a “crisis between Chris [Passius] and Herb [Legros]” and that “Herb was firing in the air.”

Based on this, the district court decided that Legros had either committed felony “reckless endangerment” or “aggravated assault.” The circuit, however, held that the court’s findings could not support either conclusion.

Under New York state law, the only felony involving reckless endangerment requires “circumstances evincing a deprived indifference to human life” along with reckless conduct “which creates a grave risk of death to another person.” Accordingly, the district court was required to find both that Legros created a “grave risk of death” and that he acted with a “depraved indifference to human life.” But here, the district court made no mention of either of these elements, and relied instead only on the fact that Legros fired a gun in the air in “a neighborhood.”

The circuit agreed with these, as findings of fact, but held that they could not, “standing alone,” support a finding of felony reckless endangerment. Absent a “further explanation from the district court,” its application of the enhancement based on felony reckless endangerment could not be affirmed.

Nor did the district court’s findings support its alternative holding – that Legros committed felony “aggravated assault.” There is no such crime in New York, although Legros might have committed attempted assault in the first degree, a felony, if he in fact fired shots at Passius. Here, however, as with the reckless endangerment, the district court “did not mention the essential elements of the offense or identify facts in the record that satisfied them.” Firing a gun “in the air” cannot support a finding of attempted first-degree assault. Moreover, although the police found a bullet from Legros’ gun found in a car parked nearby, there was no evidence that Passius, or anyone else, was in or near the car when the gun was discharged.