In the

United States Court of Appeals
                For the Seventh Circuit

No. 12-3413

U NITED S TATES OF A MERICA,
                                                   Plaintiff-Appellee,
                                  v.

JAMEL H. B ROWN,
                                               Defendant-Appellant.


              Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
             No. 11 CR 00202—Sarah Evans Barker, Judge.


        A RGUED A PRIL 5, 2013—D ECIDED M AY 20, 2013




 Before E ASTERBROOK, Chief Judge, and F LAUM and
W OOD , Circuit Judges.
  F LAUM, Circuit Judge. Following a high-speed chase,
an assault on an officer, and a four-hour standoff at
a hotel, Jamel Brown was arrested and charged with
unlawful possession of a firearm by an armed career
criminal, bank robbery, interference with interstate com-
merce by robbery, and brandishing a firearm during
a crime of violence. Brown pleaded guilty to unlawful
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
2                                             No. 12-3413

and 924(e) without a plea agreement and moved to con-
tinue the remaining counts of the indictment until after
his sentencing on the firearm possession charge. Prior
to sentencing, Brown objected to four of the proba-
tion officer’s factual representations contained in his
Presentence Investigation Report (“PSR”) and objected
to the PSR’s application of a two-level enhancement
for reckless endangerment during flight. After hearing
the evidence presented at sentencing, the district court
imposed an above-guidelines sentence of 400 months’
imprisonment. Brown appeals his sentence, claiming
a violation of Federal Rule of Criminal Procedure
32(i)(3)(B), which requires a district court to rule on
any disputed matter in the PSR that will affect the
court’s sentencing determination. For the reasons set
forth below, we affirm the sentence imposed by the
district court.


                     I. Background
A. Factual Background
  On August 8, 2011, Officer Joshua Fritsche observed
Brown driving his vehicle at a high rate of speed in sub-
urban Indianapolis. After Officer Fritsche initiated a
pursuit, Brown increased his speed to approximately
80 miles per hour, veered in and out of traffic, disre-
garded stop signs, and at last, crashed his car into
a trailer in the parking lot of a hotel. When his car came
to rest, Brown fled on foot into the hotel lobby, ignoring
the officer’s orders to stop. Once in the lobby, Brown
could not go any farther because entry to the remainder
No. 12-3413                                             3

of the hotel was limited to those individuals possessing
an access card. Officer Fritsche followed Brown into
the lobby and ordered him to get on the ground. When
Brown refused to comply, the officer deployed his
taser, and Brown fell to the floor. After a quick recovery
from the stun, however, Brown stood up and re-
peatedly punched Officer Fritsche in the face. The
officer lost consciousness and collapsed.
   Brown then fled from the lobby and ran back into
the parking lot from which he had entered. Three
men followed him out the door: Brandon McKee, the
hotel manager; Andrew Spears, a hotel maintenance
employee; and Crandall Myers, a hotel guest. As Brown
fled, a car pulled in front of him and blocked his
path. Brown attempted to enter the car, and the
hotel guest occupying the car saw Brown brandish a
firearm. Brown then turned and pointed his Tec-9 semi-
automatic pistol at each of the three men who had
followed him from the lobby into the parking lot. The
men watched as Brown pointed the firearm in their
direction and pulled the trigger. Fortunately, the gun
only clicked and the weapon did not discharge. The
gun’s loaded magazine and one round of ammunition
were later recovered from the ground next to where
Brown had been standing.
  From the parking lot, Brown ran to the rear of the
hotel, where he broke in by crashing through a window.
Bleeding profusely, Brown began knocking on hotel
room doors and attempted to bribe hotel guests to
allow him to hide from the police in their rooms. When
4                                             No. 12-3413

all of the guests refused, Brown entered an occupied
room, and with one hand in his waistband, threatened
the guest and ordered him not to leave. About four
hours later, SWAT officers entered the room and
arrested Brown.


B. Procedural Background
  On October 19, 2011, a grand jury returned an indict-
ment charging Brown with one count of unlawful pos-
session of a firearm by an armed career criminal in vio-
lation of 18 U.S.C. §§ 922(g)(1) and 924(e), one count
of bank robbery in violation of 18 U.S.C. § 2113(a), one
count of interference with interstate commerce by
robbery in violation of 18 U.S.C. § 1951, and one count
of brandishing a firearm during a crime of violence in
violation of 18 U.S.C. § 924(c). Brown pleaded guilty to
the firearm possession charge on June 29, 2012 and
moved to continue the remaining counts of the indict-
ment until after his sentencing on the firearm convic-
tion. The court accepted Brown’s plea and granted his
motion.
  Prior to sentencing, the probation officer assigned
to Brown’s case prepared a PSR for the parties and the
court. The probation officer calculated Brown’s ad-
justed offense level at thirty-six, which included a four-
level enhancement for the use of a firearm in connec-
tion with another felony offense, a six-level enhance-
ment for assaulting a law enforcement officer during
the course of flight from the offense, and a two-level
enhancement for recklessly creating a substantial risk
No. 12-3413                                              5

of death or serious bodily injury in the course of fleeing
from a law enforcement officer. After the probation
officer subtracted two points for acceptance of responsi-
bility, Brown’s total offense level came to thirty-four.
Together with Brown’s criminal history category of VI,
the probation officer determined Brown’s guidelines
range for sentencing to be 262- to 327-months’ imprison-
ment.
  After reviewing the PSR, Brown submitted objections
to the probation officer who then issued a supple-
mental addendum to the PSR. In the addendum, the
probation officer indicated that Brown had objected to
several factual allegations contained in the PSR and
to the two-level enhancement for recklessly creating a
substantial risk of death or serious bodily injury
during flight from an officer under U.S.S.G. § 3C1.2.
According to the addendum, Brown denied that he
ran stop signs, crossed traffic lanes, and crashed
into a parked car; that he attempted to remove Officer
Fritsche’s firearm after he lost consciousness; that he
attempted to carjack the hotel guest; and that he pulled
the trigger of the gun and attempted to shoot the
witnesses during the incident. The probation officer
stood by the information contained in the PSR, but
clarified that the parked vehicle Brown had crashed
into in the hotel parking lot was a utility trailer and not
a car.
  When Brown’s sentencing hearing commenced on
October 3, 2012, the district court verified that Brown
and his counsel had thoroughly reviewed the PSR and
6                                             No. 12-3413

the other documents pertinent to sentencing, in-
cluding the government’s sentencing memorandum in
which the government argued for a significant upward
variance from the guidelines range. The judge then ex-
plained the process it would follow in sentencing
Brown and announced that the probation officer had
calculated Brown’s offense level to be thirty-four and
had assigned him to criminal history category VI. The
judge noted that defense counsel had raised an objection
to the details contained in five paragraphs of the PSR
relating to the offense conduct, and confirmed with
defense counsel that Brown had a different view of the
facts. The court then stated, “I think I’ll not resolve
the matter as a factual matter, but I’ll hear from
Mr. Brown as to his version of the facts, if he wishes to
recount them. So I won’t specifically rule on that
objection on that basis.” Shortly thereafter, the judge
stated, “[m]y own review of the presentence report
affirms the treatment that has been given these issues
by the [probation officer] in her presentence report. So
I adopt this formulation as my own and it will be the
basis on which I make the remaining decisions.”
The judge then indicated that Brown’s guidelines
range for sentencing would be 262 to 327 months. After
addressing restitution and the applicable special assess-
ment, the judge asked defense counsel whether he
“agree[d] with that guideline extrapolation,” and coun-
sel responded that he did.
  The judge then turned to Brown, who offered a
lengthy allocution to the court. Brown first apologized to
Officer Fritsche and then explained his personal history.
No. 12-3413                                              7

He indicated that his addiction to drugs had caused
him to take several wrong turns, but that the recent
death of his daughter and his arrest on the firearm pos-
session charge led him to change his attitude and his
outlook on life. Brown also explained that he disagreed
with the probation officer’s representation of the facts
in the PSR. He maintained that he showed the by-
standers at the hotel the gun but never intended to shoot
anyone and never chambered a round. During Brown’s
allocution, the district judge responded to Brown’s state-
ments and shared her view of the facts and circum-
stances relevant to sentencing, giving Brown an oppor-
tunity to comment.
  Without addressing the disputed facts or the objec-
tion to the two-level enhancement, Brown’s counsel
presented his argument to the court. He focused on
Brown’s drug addiction and suggested that a sentence
of twenty years in prison would be more than sufficient
to reflect the seriousness of the offense, to protect the
public, and to allow Brown the opportunity to over-
come his addiction and gain the maturity necessary
to refrain from drug use and criminal activity.
  Next, the government called several witnesses to
testify about the events that transpired on August 8,
2011. Spears, McKee, and Officer Fritsche testified as eye-
witnesses to the crime and Michael Hubbs, a captain
in the Marion County Sheriff’s Office, testified as the
lead investigator on the case. During his testimony,
Officer Hubbs relayed statements from three hotel
guests who had witnessed Brown’s conduct at the
8                                             No. 12-3413

hotel: Myers, who followed Brown out of the hotel and
back into the parking lot; Jeffery Rickert, who was
driving the car that blocked Brown on his way out of
the hotel; and Joseph McGill, who was occupying the
hotel room Brown entered after breaking into the rear
portion of the hotel.
  Following the testimony, the government argued for
an upward variance from the guidelines. The govern-
ment noted that Brown had already received a two-
point enhancement under § 3C1.2 for posing a substan-
tial risk of death or bodily injury during flight but
argued that an upward variance would nonetheless be
appropriate because Brown’s conduct posed a risk to
more than one individual. The government also argued
that the enhancement for assaulting an officer in the
course of flight could not fully capture the extent of the
physical injury Brown inflicted on Officer Fritsche.
Finally, the government explained that Brown’s criminal
history category underrepresented the seriousness of
his criminal history and the likelihood that he would
commit other crimes. The court then allowed defense
counsel the opportunity to respond. At that point,
Brown’s attorney stated that he believed the “guide-
lines accurately encompass all of the behavior that the
defendant has been involved in, and that the Govern-
ment is bringing to the Court’s attention.” Brown’s at-
torney emphasized that “[t]he flight, the obstruction
of justice, [and] the assault on the officer” were all
taken into account by the guidelines. He did state, how-
ever, that there was no evidence that Brown had
attempted to carjack the hotel guest and that one of the
No. 12-3413                                            9

witnesses had stated he heard gunshots, when in fact
the gun did not go off. Brown’s attorney clarified that
“whether or not [Brown] tried to shoot anyone or
carjack anyone or take a gun doesn’t affect the guide-
line calculation at all. The Government gets the en-
hancements that it’s looking for and that probation
found without any of those things.” Instead, defense
counsel explained that the government was asking the
court to consider those facts in deciding whether to vary
upward from the guidelines range and that he did
not believe the government had demonstrated the
accuracy of those facts.
  In its final argument, the government agreed with
defense counsel that Brown’s “efforts . . . to kill four
people” did not affect the guidelines calculation and
noted that those actions instead supported its argument
for an upward variance from the guidelines. The gov-
ernment reminded the court that four witnesses had
stated that Brown pointed a gun in the direction of the
three men who had followed him out of the hotel
and three of those witnesses recalled hearing clicks.
In recommending a sentence of 480 months’ imprison-
ment, the government emphasized that the only way to
satisfy the requirements of § 3553(a) would be to
impose a sentence well above Brown’s guidelines range.
  After hearing argument from both sides, the judge
began her explanation of the sentence. At the outset,
she stated, “it is true that we have a correct guidelines
application here. At least nobody’s disagreed with it.
I don’t know of any reason why it is subject to that sort
10                                            No. 12-3413

of disagreement.” The judge then noted the “horrific
facts” related to the nature and circumstances of the
offense. She explained that Brown had driven recklessly
through a heavily trafficked area, brutally assaulted
Officer Fritsche, and pointed a gun at the men who
were pursuing him. The judge continued that after the
gun malfunctioned, Brown persisted in his escape,
running to another part of the hotel and breaking
through a window before “terrorizing” people inside
the hotel. She concluded that the guidelines properly
computed at 262 to 327 months did not “take into
account the cumulative effect of [Brown’s] life pattern
or the facts that surround this case and, in particular,
the attempts that were made to shoot and kill four peo-
ple” and ultimately imposed a sentence of 400 months.


                     II. Discussion
  On appeal, Brown does not argue that the district
court imposed a substantively unreasonable sentence.
Instead, he contends that the district court committed
procedural error and violated his right to due process
by not explicitly ruling on his objections to the PSR
prior to sentencing. See Fed. R. Crim. P. 32(i)(3)(B).
Brown also maintains that the district court relied on
disputed facts to apply a two-level sentencing enhance-
ment for reckless endangerment during flight. He sug-
gests, however, that this court’s review of the sentencing
enhancement’s applicability is an “impossibility” because
the district court did not make the necessary findings
on the disputed facts supporting the enhancement.
No. 12-3413                                                11

We disagree and because we find no procedural error,
we affirm the sentence imposed by the district court.




A. Compliance with Rule 32(i)(3)(B)
  Federal Rule of Criminal Procedure 32(i)(3)(B) directs
district courts to rule on any disputed matter in the
PSR prior to sentencing. Fed. R. Crim. P. 32(i)(3)(B). This
rule protects a defendant’s right to be sentenced on the
basis of accurate information and provides a record of
the disposition and resolution of controverted facts in
the PSR. United States v. Eschweiler, 

,
1387 (7th Cir. 1986) (addressing the precursor to Rule
32(i)(3)(B)). At the time of its enactment, Rule 32(i)(3)(B)’s
predecessor required a sentencing judge to make writ-
ten findings concerning disputed factual matters or
a written determination that it would not rely on the
disputed matter during sentencing. See Fed. R. Crim.
P. 32(c)(3)(D) (1988). But the rule has been amended
twice since its enactment, limiting the need for an
explicit determination to only when a defendant’s ob-
jection addresses a controverted matter that will affect
sentencing. See Fed. R. Crim. P. 32 Advisory Comm.
Note, 2002 Amend. (2006); Fed. R. Crim. P. 32 Advisory
Comm. Note, 1994 Amend. (1994).
  Since its most recent revision in 2002, we have charac-
terized the requirement outlined in Rule 32(i)(3)(B) as
one imposing a “minimal burden.” United States v.
Heckel, 

, 796 (7th Cir. 2009). A sentencing
12                                              No. 12-3413

court must still make findings on the record to resolve
a factual dispute between the parties, but “[t]he dis-
trict court can often satisfy the rule by adopting the
proposed findings in the [PSR], even as to contested
facts, so long as the PSR articulates a sufficiently clear
basis for the sentence and the reviewing court can be
sure that the district court made a decision of design
rather than of convenience.” United States v. Sykes, 

, 674 (7th Cir. 2004) (internal citations and quota-
tion marks omitted); see also 

(“Al-
though the district court did not explicitly address
[the defendant’s] objection to the PSR’s treatment of
his theft conviction, the court referenced the information
in the PSR and specifically adopted the PSR’s findings.”).
   Here, after noting Brown’s objections to the PSR,
the district judge categorically adopted the probation
officer’s findings. Brown contends, however, that the
timing of the district court’s adoption renders it insuf-
ficient to comply with Rule 32(i)(3)(B)’s directive. Early
in the sentencing hearing, the district judge announced
that she would not rule on the disputed facts contained
in the PSR, but that she would hear from the defendant
as to his version of the facts. The district judge made
this statement shortly before she endorsed the PSR in
its entirety, which occurred before Brown addressed the
court and before the government presented its evidence.
At oral argument, the government explained that its
best interpretation of the district judge’s initial state-
ment was that she did not intend to rule on the
disputed facts at that particular time. If the district court
had indicated its acceptance of the government’s version
No. 12-3413                                                   13

of the facts only by adopting the factual allegations in
the PSR immediately after it vowed to reserve its deci-
sion on the disputed facts until after Brown’s argument,
we would hesitate before finding compliance with Rule
32(i)(3)(B). See, e.g., United States v. Wolfe, 

, 614-
15 (6th Cir. 1995) (explaining that “neither the right to
allocution . . . nor the procedures for dealing with con-
troverted matters . . . indicate that a judge may not state
his ruling on the objections raised to the PSR, or other
sentencing matters, before the defendant or his counsel
is given a chance to speak,” but urging the opposite
sequence to protect the appearance of fairness).
   But the district court’s discussion of the disputed
facts did not end there. After hearing from the de-
fendant and listening to the evidence presented by the
government, the judge made several statements that
confirmed her acceptance of the probation officer’s
version of the facts. In addressing the “horrific” nature
of the offense at issue, the judge stated that Brown
had driven a car through a heavily trafficked area
“really without regard to anybody else,”and that his
assault on the officer was “breathtaking.” She acknowl-
edged that Brown had pointed the firearm at the wit-
nesses in the hotel parking lot “and by some
unbelievable good fortune” the gun malfunctioned.
The judge explained to Brown that the lack of any
firing “was good for you in the sense that you’re not
before some court for murder charges, but it was [also]
good for all of the people who were looking at the
short end of that gun and thinking their lives were
about to end.” When the gun malfunctioned, the judge
14                                            No. 12-3413

stated that Brown continued with his attempted escape,
shattering a window in the back of the hotel and
then “terrorizing” the people inside while looking for
a place to hide.
  After addressing these facts, the district judge con-
cluded that the properly calculated guidelines range of
262 to 327 months could not take into account the egre-
gious offense conduct and, “in particular, the attempts
that were made to shoot and kill four people.” Accord-
ingly, she sentenced Brown to 400 months in prison.
  Given the minimal burden imposed on the dis-
trict court to comply with Rule 32(i)(3)(B)’s instruction
to rule on all disputed matters that will affect sen-
tencing, we find that the district court met that burden
in this case. See 

. The statements
the district judge made after hearing the evidence
and prior to imposing the sentence clearly indicated
her acceptance of the version of the facts in the PSR
and provided this court with a sufficient record to
engage in effective appellate review. See United States v.
Cureton, 

, 473 (7th Cir. 1996) (explaining
the district court’s obligation to address a defendant’s
objections and provide a record of the disposition so
that the appellate court may conduct an effective
review of the sentencing); see also United States v.
Zehrung, No. 11-1974, ___ F.3d ___, 

, at *3
(1st Cir. Apr. 18, 2013) (finding that a court may
“implicitly resolve[]” a factual dispute when its “state-
ments and the sentence imposed show[] that the facts
were decided in a particular way” and the resolu-
tion permits effective appellate review (internal quota-
No. 12-3413                                          15

tion marks omitted)). That the district court wholly
adopted the PSR at the outset of the hearing does not
alter our view of the district court’s compliance with
the Rule. The judge likely developed her own view of the
facts at the outset and did not change her posi-
tion after hearing the evidence and argument from
both sides. What is essential is that the district judge
articulated her view of the disputed facts and explained
how they impacted her ultimate sentencing determination.


B. Application of the Two-Level Reckless Endanger-
   ment Enhancement
  To the extent Brown also contends that the district
court erred in applying a two-level enhancement
for reckless endangerment during flight, we disagree.
Section 3C1.2 of the guidelines requires a sentencing
court to enhance a defendant’s base offense level by
two points where “the defendant recklessly created a
substantial risk of death or serious bodily injury to
another person in the course of fleeing from a law en-
forcement officer.” U.S.S.G. § 3C1.2. Having concluded
that the district court committed no error in ruling
on the disputed facts affecting sentencing, the court’s
application of the two-level enhancement for reckless
endangerment was proper. But we also agree with the
government that regardless of the district court’s res-
olution of the disputed facts, the enhancement could
have been supported solely by the undisputed facts
in the PSR.
16                                              No. 12-3413

  At sentencing, Brown did not contest that he was trav-
eling at a high rate of speed during Officer Fritsche’s
pursuit or that he pointed a firearm at the three indi-
viduals who followed him out of the hotel as well as
the individual who blocked Brown’s path of escape in
the hotel parking lot. While speeding excessively,
Brown could have lost control and injured other drivers
or pedestrians on or near the road. See United States v.
Woody, 

, 1275 (7th Cir. 1995) (affirming the
application of the two-level enhancement where the
defendant fled from police and led officers on a high-
speed chase); United States v. Velasquez, 

, 655
(7th Cir. 1995) (holding that flight at a high rate of speed
on a residential street is enough to support an enhance-
ment under § 3C1.2). And Brown’s brandishing of the
gun during his flight presented a substantial risk that an
officer arriving on the scene might discharge his gun
in defense, causing injury to one of the hotel guests at
the scene or another officer. See United States v. Hoffarth,
432 F. App’x 621, 623 (7th Cir. 2011) (nonprecedential
decision) (“[D]isplaying a gun, loaded or not, during a
crime ‘creates an immediate danger that a violent
response will ensue.’ ”) (quoting McLaughlin v. United
States, 

, 17-18 (1986)); see also United States v.
Smythe, 

, 129 (2d Cir. 2004) (concluding that
“offense-level enhancements are warranted even where
a weapon is unloaded or inoperative.” (emphasis in origi-
nal)). Thus, taken together, the undisputed facts sur-
rounding Brown’s flight demonstrate that Brown “reck-
lessly created a substantial risk of death or serious
bodily injury to another person” when he fled from
No. 12-3413                                             17

law enforcement on the day of his arrest. U.S.S.G. § 3C1.2.
Indeed, defense counsel all but conceded as much
when he stated at sentencing that “whether or not
[Brown] tried to shoot anyone or carjack anyone or take
a gun doesn’t affect the guideline calculation at all. The
Government gets the enhancements that it’s looking
for and that probation found without any of those
things.” He was correct. The additional disputed facts
contained in the PSR merely bolster the district court’s
application of the two-point enhancement while sup-
porting its decision to vary upward from the guide-
lines range. Consequently, we find no error in the
district court’s resolution of the disputed facts or its
calculation of Brown’s guidelines range for sentencing.


                     III. Conclusion
  For these reasons, we A FFIRM the sentence imposed
by the district court.




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