United States of America v. Diew Choul Deng, also known as Diew Deng

United States Court of Appeals
For the Eighth Circuit
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No. 23-1009
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Diew Choul Deng, also known as Diew Deng
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: September 19, 2023
Filed: October 4, 2023
[Unpublished]
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Before LOKEN, WOLLMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Law enforcement officers identified the vehicle in which Diew Choul Deng
was traveling on January 22, 2022, by tracking his cell phone location. The vehicle
traveled west on Interstate 80 and exited toward downtown Lincoln, Nebraska. State
troopers initiated a traffic stop after an occupant threw a lit cigarette out of the
vehicle’s window. The vehicle pulled over for a moment and then fled quickly

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through downtown Lincoln. Officers in a surveillance aircraft observed a handgun
being thrown from the vehicle as it sped through a residential area. The vehicle
thereafter crashed into a pole, and the four occupants fled on foot. Officers
apprehended Deng and three others and recovered a loaded FN Herstal Five-SeveN
pistol, which a straw buyer had purchased for Deng on January 12, 2022.
Deng pleaded guilty to two counts of being an unlawful user of a controlled
substance in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and
924(a)(2). One count related to his possession of the FN Herstal pistol. At
sentencing, the district court1 found that Deng had thrown “a loaded handgun with
one round chambered out of the vehicle window as it [was] fleeing through a
residential neighborhood at approximately 11 p.m. at night.” The district court thus
increased Deng’s offense level under § 3C1.2 of the U.S. Sentencing Guidelines,
which provides for a two-level increase “[i]f the 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.” The district court sentenced Deng to 96
months of imprisonment.
We reject Deng’s argument that the record does not support a finding that he
threw the firearm from the vehicle. Deng pleaded guilty to possessing the FN Herstal
pistol from January 12 to January 22. As part of the factual basis for his guilty plea,
Deng specifically admitted that he possessed the FN Herstal pistol on January 22 and
that the pistol was recovered after being thrown from a vehicle during a high speed
chase. The presentence report addressed the above-set-forth, as well as the following
facts: Deng selected the FN Herstal pistol and provided cash for its January 12
purchase; the FN Herstal pistol was thrown from the vehicle during the January 22
flight from officers; and officers later recovered from Deng’s bedroom a pistol box,
1The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.
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ammunition, and purchase receipts related to the FN Herstal pistol. Moreover, the
government submitted the recording from the surveillance aircraft involved in Deng’s
January 22 arrest. Based on this record, the district court rejected Deng’s argument
that he was a mere passenger in a fleeing vehicle, see United States v. Reggs, 909
F.3d 911, 913 (8th Cir. 2018), and instead found that he was the person who had
thrown the firearm from the vehicle. Because that finding is not clearly erroneous,
we conclude that the district court properly applied the two-level increase under
Guidelines § 3C1.2. See United States v. Esquibel, 964 F.3d 789, 792 (8th Cir. 2020)
(per curiam) (applying § 3C1.2 increase when defendant grabbed the barrel of one
officer’s rifle, knocked another officer’s rifle to the ground, and “discarded his own
firearm as he fled, creating the risk that one of the guns could accidentally
discharge”); United States v. Davidson, 933 F.3d 912, 914–15 (8th Cir. 2019)
(applying § 3C1.2 increase when, among other things, the defendant discarded his
firearm during a foot chase “creat[ing] the possibility of the weapon accidently
discharging”).
We have considered and now deny the supplemental motion that defense
counsel filed under Anders v. California, 386 U.S. 738 (1967), which seeks to have
Deng’s convictions vacated as unconstitutionally imposed. The judgment is affirmed.
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