United States of America v. Fred D. Golson, Jr.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0049p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRED D. GOLSON, JR.,
Defendant-Appellant.
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No. 23-3078
Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:21-cr-00663-1—James S. Gwin, District Judge.
Decided and Filed: March 11, 2024
Before: BATCHELDER, STRANCH, and DAVIS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: K.L. Penix, ALDERMAN LAW FIRM, Fort Collins, Colorado, for Appellant.
Matthew W. Shepherd, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for
Appellee.
_________________
OPINION
_________________
DAVIS, Circuit Judge. Fred Golson, Jr., pleaded guilty to two counts of being a felon in
possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Based on an offense level of 17 and a criminal history category of VI, Golson’s Sentencing
Guidelines range was 51 to 63 months’ imprisonment. In calculating Golson’s Guidelines range,
the district court added a two-level enhancement because it found that Golson’s flight from law
enforcement during one of the underlying incidents amounted to reckless endangerment pursuant
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to U.S.S.G. § 3C1.2. The court ultimately sentenced Golson to 56 months’ imprisonment, three
years of supervised release, and a $200 special assessment. Golson challenges the imposition of
his sentence on procedural reasonableness grounds. Specifically, he maintains that the district
court erred in applying the two-level enhancement because he was not the driver of the vehicle at
the time of the incident. Because the undisputed facts of the case create a reasonable inference
that Golson was an active participant in the reckless flight from police, we AFFIRM.
I.
Golson’s offenses of conviction stem from two separate incidents. The first incident
occurred in April 2021 when law enforcement responded to a shooting outside of a local
business in Elyria, Ohio. Golson and three other individuals arrived in a blue Ford Focus, exited
the vehicle, and opened fire at several individuals. After the shooting, the vehicle fled the scene.
Officers from a neighboring department tried to stop the car about 2.5 miles away from the scene
of the shooting. During its getaway, the vehicle traveled approximately 55 miles per hour in a
residential area, drove off the road and into the grass to avoid “stop sticks” placed on the road by
law enforcement, and crashed. Three of the occupants remained in the vehicle and were
immediately detained, but Golson jumped out of the car and fled on foot. The officers searched
the vehicle and recovered four firearms, one of which was later tested and contained Golson’s
DNA. Officers located and arrested Golson three hours after the crash.
The second incident occurred in June 2021 when officers responded to reports of shots
being fired between two vehicles and several individuals on Abbe Road North in Elyria. When
officers first arrived, they could not find the individuals, but officers viewed security camera
footage and observed Golson flee the vehicle and hide a firearm behind a local bar. Officers
retrieved the firearm, which contained Golson’s DNA. Golson was indicted in the United States
District Court for the Northen District of Ohio for being a felon in possession of a firearm in
relation to the April 2021 incident. Over a week later, the grand jury returned a superseding
indictment, which added a second felon-in-possession charge for the June 2021 incident.
Golson pleaded guilty to both counts pursuant to a Rule 11 plea agreement. The parties
stipulated to a base offense level of 14, plus a four-level increase because the firearm was used in

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No. 23-3078 United States v. Golson Page 3
connection with another felony offense. The probation department prepared a Presentence
Report (“PSR”), which recommended the same base offense level and four-level enhancement as
the plea agreement. But the PSR also recommended an additional two-level increase pursuant to
U.S.S.G. § 3C1.2 for reckless endangerment during flight based on Golson’s flight from law
enforcement in April 2021. This adjustment led to an adjusted offense level of 20. Golson
received a three-level reduction for his acceptance of responsibility, leaving a total offense level
of 17. With an offense level of 17 and a criminal history category of VI, Golson’s advisory
Guidelines range was 51 to 63 months’ imprisonment.
Golson made several objections to the PSR, including one challenging the two-level
enhancement under § 3C1.2. Concerning the applicability of § 3C1.2, the PSR stated:
[T]he defendant recklessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a law enforcement officer;
therefore, two levels are added. The defendant fled from officers by driving in
excess of 55 miles per hour through residential areas, driving off of the road, and
committing several traffic violations. Additionally, the defendant abandoned his
vehicle with a firearm inside of it and left a second gun unsecured behind a bar.
(R. 37, Page ID 159, ¶ 21). Golson took issue with this assessment, objecting that he was
“running on foot from law enforcement, and at no time did he discharge a firearm.” (Id. at 176).
The probation department declined to alter its recommendation and instead responded with a
more fulsome explanation of why the enhancement applied. Relevant here, the probation officer
reviewed the Guidelines’ description of what constitutes “reckless” conduct1 and explained that
“the defendant is accountable for the defendant’s own conduct and for conduct that the defendant
aided or abetted, counseled, commanded, induced, procured, or willfully caused.” U.S.S.G.
§ 3C1.2, cmt n.5. As to Golson’s part in the flight, the probation officer noted that Golson
(1) “was the only person in the vehicle to flee from officers on foot” after the crash; (2) “was an
active member in the flight from law enforcement”; and (3) “was involved in a shooting [that]
1The Sentencing Guidelines define “reckless” as situations in which “the defendant was aware of the risk
created by his conduct and 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.” U.S.S.G. § 2A1.4
cmt n.1.

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No. 23-3078 United States v. Golson Page 4
caused the driver of the vehicle, who was involved in the same shooting, to begin to flee from
law enforcement.” (R. 37, PageID 176–77).
In his sentencing memorandum, Golson requested that the district court apply the offense
level to which the parties had stipulated in the plea agreement instead of the probation
department’s recommended two-level § 3C1.2 enhancement because it was not contemplated in
the plea agreement. At sentencing, the district court specifically considered, among other
objections, Golson’s objection to the two-level increase. Making no mention of Golson’s status
as a passenger as a reason for the objection, defense counsel argued that Golson did not qualify
for the enhancement because there was no “potential risk of serious bodily harm.” (R.56,
PageID 237–38). The district court first confirmed with the probation officer that the
enhancement applied based on the vehicle’s flight and not on Golson’s “fleeing after the vehicle
came to a stop.” (Id. at 238). Focusing, then, on whether the situation created a potential risk of
serious bodily harm, the court inquired about the road conditions on the day of the chase,
including the busyness of the road, the “nature” of the street, the speed limit, and the time of day.
(Id. at 239). For its part, the defense contended that the vehicle’s purported 55 mph rate of
speed, where the speed limit was 35 mph, “might not be an excessive speed for the area.” (Id.).
Satisfying itself that a substantial risk of harm existed, the court overruled the objection and
accepted the PSR’s recommendation to apply the increase. The court sentenced Golson to 56
months’ imprisonment, three years of supervised release, and a $200 special assessment. Golson
timely appealed.
II.
Issue Preservation. Before addressing the applicable standard of review, we must first
ascertain whether Golson preserved his argument for appellate review. See United States v.
Thomas-Mathews, 81 F.4th 530, 538 (6th Cir. 2023). “A ‘defendant generally forfeits the right
to challenge on appeal any procedural errors to which he did not object at the time of
sentencing.’” Id. (quoting United States v. Herrera-Zuniga, 571 F.3d 568, 578 (6th Cir. 2009))
(cleaned up). In determining whether a forfeiture based on a defendant’s failure to object has
occurred, we look to whether the challenging party provided a “‘clear articulation of any
objection and the grounds therefor,’ to ‘aid the district court in correcting any error, tell the

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No. 23-3078 United States v. Golson Page 5
appellate court precisely which objections have been preserved and which have been [forfeited],
and enable the appellate court to apply the proper standard of review to those preserved.’” Id.
(alteration in original) (quoting United States v. Bostic, 371 F.3d 865, 873 (6th Cir. 2004)).
Golson insists that he did raise the objection that § 3C1.2 does not apply based on his
status as a passenger during the vehicle’s flight. Yet, this argument is largely unsupported by the
record. In his objections to the PSR, as it pertains to the purported misapplication of § 3C1.2,
Golson merely “argued that he was running on foot from law enforcement, and at no time did he
discharge a firearm.” (R. 37, PageID 176). Golson’s objection described such activity as
“benign,” contending further that recklessness requires a “higher degree of culpability.” (Id.)
His sentencing memorandum expounded no further as to why the reckless endangerment
enhancement should not apply. Then, during the court’s review of his § 3C1.2 objection at the
sentencing hearing, Golson focused exclusively on the fact that the speed of the vehicle was not
so excessive as to cause reckless endangerment. While Golson himself questioned his
culpability as a non-driver during his allocution,2 his argument was never adopted or presented
by counsel. And we know that Golson had the opportunity to discuss sentencing issues with his
attorney ahead of sentencing, for the court confirmed with Golson at the beginning of the
sentencing hearing that he had reviewed the PSR with counsel prior to the hearing, and his
counsel confirmed that Golson continued to object to the application of § 3C1.2—as “included
in [his] sentencing memorandum and the supplement.” (R. 56, PageID 232–33).
Because Golson was represented by counsel before the district court, his legal arguments
were required to be presented by his counsel. Allowing Golson to represent himself would have
amounted to “hybrid representation,” which is not permitted without leave of the court. See
United States v. Miller, 561 F. App’x 485, 488 (6th Cir. 2014) (quoting United States v. Mosely,
810 F.2d 93, 97–98 (6th Cir.1987)) (noting that a defendant “‘has a constitutional right to be
represented by counsel or to represent himself during his criminal proceedings, but not both’”)
2Golson broached the issue during his allocution, stating: “And on April 29th I was not the driver of that
car, so how could I make that man go on a high-speed chase? How could you all give me extra points for that and
not -- and I wasn’t even a driver? So it’s—I was going 50—it clearly said I was a passenger, that front seat
passenger.” (R. 56, PageID 252). In response, the court addressed Golson and concluded: “nonetheless—I’m in a
position where I’ve set the offense level.” (Id. at 253).

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No. 23-3078 United States v. Golson Page 6
(emphasis in original). Notably, no such request was made below. Moreover, the allocution
statements occurred after the district court had made its findings as to all objections to the
enhancement and were not revisited by Golson’s counsel3 when the court queried the parties
about continued concerns or objections as required under Bostic, 371 F.3d at 872–73.
In further support of his argument that the objection was preserved for appellate review,
Golson directs us to a statement from the PSR where the probation officer described Golson’s
objection: “The defendant cited unspecified case law and Due Process of Law, which forbids the
‘stretching’ of this section to include benign activity such as running away or fleeing in a
vehicle.” (R. 37, Page ID 176). But this opaque reference does little to establish that Golson’s
challenge was based on his status as a passenger. Such a concealed mention of an objection
cannot rise to the level of a “specific objection” for purposes of issue preservation because it
failed to “provide[] the district court with an opportunity to address the error in the first instance
and [does not] allow[] this court to engage in more meaningful review.” Bostic, 371 F.3d at 871.
Golson had multiple opportunities after the filing of the PSR to clarify his position and to
specifically object to the enhancement based on the premise that he was not the driver of the
vehicle; Golson failed to do so. As such, this argument was not properly preserved for appeal.
Golson’s failure to preserve the issue is not fatal to his claim, however. As explained below, we
review for plain error.
A.
Standard of Review. “On appeal, district court sentencing determinations are reviewed
for reasonableness.” United States v. Gates, 48 F.4th 463, 468 (6th Cir. 2022).
3Notably, FED. R. CRIM. P. 32(i)(1)(D) permits a party “for good cause” to raise a new objection before the
sentence is imposed. Yet, no such request, let alone argument for cause, was made here. In finding as we have, we
do not close the door on a defendant’s ability to preserve a previously-unraised issue during allocution and have no
occasion to quibble with prior non-binding rulings finding or suggesting preservation through allocution. See, e.g.,
United States v. Boese, 187 F.3d 638 (6th Cir. 1999) (unpublished table decision) (finding defendant’s objection to
application of the Armed Career Criminal Act during allocution preserved issue for appeal, without further
discussion of circumstances resulting in defendant’s, rather than counsel’s, raising the issue); United States v.
Flowers, 428 F. App’x 526, 529 (6th Cir. 2011) (upholding district court’s striking of defendant’s pro se letter of
allocution raising new objection(s) as violative of the rule against hybrid representation, but noting in dicta the
defendant’s failure to mention the objection in his allocution—as well as counsel’s failure to raise it at sentencing—
was grounds to find the issue not preserved).

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“The reasonableness inquiry has two components: procedural and substantive.” Id. at 468–69
(citing Gall v. United States, 552 U.S. 38, 51 (2007)). Procedural error occurs when the district
court “fails to calculate (or improperly calculates) the Guidelines range, treats the Guidelines as
mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous
facts, or fails to adequately explain the chosen sentence.” Id. at 469 (quoting United States v.
Fowler, 819 F.3d 298, 304 (6th Cir. 2016)) (cleaned up). The district court’s application of the
§ 3C1.2 enhancement—Golson’s sole challenge on appeal—is a matter of procedural
reasonableness.
Although courts generally review whether a sentence is reasonable under abuse of
discretion, see United States v. Pennington, 78 F.4th 955, 962 (6th Cir. 2023), “[w]here a
defendant fails to properly preserve an issue for appeal, that claim is subject to review for plain
error only.” Thomas-Mathews, 81 F.4th at 541 (quoting Herrera-Zuniga, 571 F.3d at 580); see
also United States v. Hymes, 19 F.4th 928, 933 (6th Cir. 2021) (“Where a defendant fails to
preserve a procedural reasonableness argument, the plain error standard further constrains our
review.”). To establish the requirements for plain error relief, Golson “must show the district
court committed (1) an error that was (2) plain and (3) affected his ‘substantial rights.’ If he can
satisfy those three ‘threshold requirements,’ then we have discretion to grant relief only if (4) we
conclude ‘that the error had a serious effect on the fairness, integrity or public reputation of
judicial proceedings.’” United States v. Simmonds, 62 F.4th 961, 964 (6th Cir. 2023) (internal
citations omitted) (quoting Greer v. United States, 141 S. Ct. 2090, 2096–97 (2021)).
“Satisfying all four prongs of the plain-error test is difficult.” Greer, 141 S. Ct. at 2097 (internal
quotations omitted). And because the plain-error standard is “extremely deferential,” we “will
reverse only in exceptional circumstances to correct obvious errors that would result in a
miscarriage of justice.” Hymes, 19 F.4th at 933; see also United States v. Murphy, 241 F.3d 447,
451 (6th Cir. 2001) (“Plain errors are limited to those harmful ones so rank that they should have
been apparent to the trial judge without objection, or that strike at fundamental fairness, honesty,
or public reputation of the trial.”) (quoting United States v. Evans, 883 F.2d 496, 499 (6th Cir.
1989)). Notably here, whether we review for plain error or abuse of discretion—in which case
we weigh whether we are “left with a definite and firm conviction that the district court
committed a clear error of judgment,” United States v. Periz-Rodriguez, 960 F.3d 748, 753 (6th

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Cir. 2020) (citation omitted)—the undisputed facts in the PSR support the district court’s finding
that the § 3C1.2 enhancement is applicable to Golson.
B.
When reviewing the first prong of the plain-error standard, we look for “forfeited-but-
reversable error.” Simmonds, 62 F.4th at 964 (quoting United States v. Olano, 507 U.S. 725, 732
(1993)). To satisfy this prong, Golson must show that the district court incorrectly applied the
two-level enhancement based on the record. See id.; see also FED. R. CRIM. P. 52(b). Because
the record supports an inference that Golson participated in the flight from law enforcement,
Golson cannot demonstrate error.
Sentence Enhancement Pursuant to U.S.S.G. § 3C1.2.4 Golson maintains that the district
court erroneously applied the two-level enhancement for reckless endangerment during flight
from law enforcement because he was not the driver of the vehicle and did not facilitate the
chase. As a result, Golson argues that his sentence is procedurally unreasonable.
“We review a district court’s ‘legal interpretation of the Guidelines de novo and its
factual findings’ for clear error.” United States v. Jones, 81 F.4th 591, 597 (6th Cir. 2023)
(quoting United States v. Byrd, 689 F.3d 636, 639 (6th Cir. 2012)). The burden of proof lies with
the government to show, by a preponderance of the evidence, that a sentencing enhancement
applies. United States v. Bourquin, 966 F.3d 428, 433 (6th Cir. 2020). Under U.S.S.G. § 3C1.2,
a defendant will receive a two-level sentencing enhancement “if [he or she] recklessly created a
substantial risk of death or serious bodily injury to another person in the course of fleeing from a
law enforcement officer.” “Reckless” in this context means that the “conduct was at least
reckless [as defined in U.S.S.G. § 2A1.4 cmt. n.1] and includes any higher level of culpability.”
U.S.S.G. § 3C1.2 cmt. n.2. And as noted above, a defendant subject to this section “is
4To the extent that Golson argues that the district court erred in applying a different base offense level from
the one provided in the plea agreement, this argument has no merit because courts are permitted to do so in Rule
11(c)(1)(B) plea agreements, which is the nature of the agreement before this court. See United States v. Vinson,
No. 22-3028, 2023 WL 2624173, at *4 (6th Cir. Mar. 24, 2023) (“[U]nder Federal Rule [of Criminal Procedure]
11(c)(1)(B)[,] the court is not required to follow the base offense level stipulated in the plea agreement.”).

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accountable for the defendant’s own conduct and for conduct that the defendant aided or abetted,
counseled, commanded, induced, procured, or willfully caused.” Id. at cmt. n.5.
To apply the § 3C1.2 enhancement to a passenger in a vehicle evading law enforcement,
“the district court must specifically find that the passenger was responsible for or brought about
the driver’s conduct in some way, and it must explain why.” Byrd, 689 F.3d at 640 (internal
quotation marks omitted). This is because holding a passenger liable for a driver’s reckless
conduct requires that there be “‘some form of direct or active participation’ in the reckless
driving by the passenger.” Id. (quoting United States v. Chong, 285 F.3d 343, 346 (4th Cir.
2002)). In the absence of direct evidence, courts may “infer that the passenger caused or
encouraged the reckless driving based on conduct occurring before, during, or after a high-speed
chase.” Id. (internal quotation marks omitted). But there are limits to making such an inference.
The mere fact that a defendant is a passenger in a vehicle where a co-defendant is driving
recklessly is not enough to apply § 3C1.2. See United States v. Cespedes, 663 F.3d 685, 690 (3d
Cir. 2011). Nor is the idea that “a reckless getaway is a reasonably foreseeable outcome of the
underlying crime” sufficient by itself to apply the enhancement. Byrd, 689 F.3d at 640. Rather,
the government must proffer evidence to show the direct or active involvement of the passenger,
and if the argument is appropriately raised before the district court for review, the court must
articulate its justification for imposing the enhancement.
Here, we have found that Golson did not appropriately raise the issue before the district
court. As a result, there was no targeted discussion about Golson’s status as a passenger in
assessing the applicability of the enhancement at sentencing. Nevertheless, the stipulated facts in
the PSR provide an adequate record to support an inference of Golson’s culpability in the
reckless flight from law enforcement. See United States v. Armes, 953 F.3d 875, 880 (6th Cir.
2020) (explaining that it is well-established that courts “may accept any undisputed portion of
the presentence report as a finding of fact”) (emphasis in original) (quoting FED. R. CRIM. P.
32(i)(3)(A)). First, Golson was an active participant in a crime (a shooting in broad daylight),
with multiple witnesses who had the means—in this case telephones—to promptly report the
incident to authorities. Like in Byrd, it is reasonable to infer that flight would be necessary after
such a public display. See Byrd, 689 F.3d at 641 (noting that “Byrd . . . participated in a robbery

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that would entail employee witnesses who likely had access to alarms”). Further, Golson’s
extensive criminal record—placing him in the highest criminal history category of VI—
combined with involvement in fresh, publicly displayed, violent criminal conduct lends credence
to the notion that Golson was incentivized to flee at any cost. See United States v. Conley, 131
F.3d 1387, 1391 (10th Cir. 1997) (noting that a relevant factor to apply the § 3C1.2 enhancement
was that “the Appellants were leaving the scene of a very serious crime, providing a motive to
take desperate—and reckless—measures to flee and elude capture”). The preceding facts are
buttressed by the fact that once the vehicle crashed after speeding through a neighborhood,
Golson immediately hopped out of the vehicle and ran away from the car and his fellow
occupants.
Notably, we have previously viewed similar conduct as an indication that a passenger
likely actively participated in the reckless flight. See Byrd, 689 F.3d at 641 (noting as a relevant
fact in applying § 3C1.2 that “[o]nce the reckless, high-speed chase ended, Byrd continued to
flee on foot”); United States v. Thompson, No. 97-3166, 1998 WL 553050, at *2 (6th Cir. Aug.
19, 1998) (explaining that defendant’s “abandoning the car following the chase” was one of the
factors “indicat[ing] active involvement” in reckless vehicle flight). Finally, six weeks later,
Golson was involved in another shooting and there, too, he immediately fled the scene of the
crime. Given Golson’s pattern and history of flight after dangerous situations, it is reasonable to
infer that he was an active participant rather than a passive presence in the reckless flight from
the scene of the crime in April 2021. See, e.g., Byrd, 689 F.3d at 642 (explaining that for a
defendant with prior history of reckless flight from the police, “it was not clearly erroneous to
infer that [the defendant’s] participation in yet another reckless flight is more likely to be active
than passive”). We therefore find no error, plain or otherwise, in the district court’s application
of § 3C1.2.
III.
For the foregoing reasons, we AFFIRM.

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