United States v. Gladden , 264 F. App'x 303 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4697
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NICODEMUS GLADDEN, a/k/a Nicodemus Rainey,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:06-cr-00966-PMD)
Submitted: January 31, 2008 Decided: February 13, 2008
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Alston C. Badger, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicodemus Gladden pleaded guilty to being a felon in
possession of a firearm and ammunition. On appeal, he challenges
his 120-month sentence, contesting the application by cross
reference of the robbery guidelines to his sentence and arguing
that his sentence is unreasonable. Finding no error, we affirm.
On June 17, 2006, Charleston City police officer Corporal
Chris Costanzo was dispatched to 1328 St. Clair Drive in response
to illegal narcotic activity. When Officer Costanzo arrived, he
observed Appellant Nicodemus Gladden and another African-American
male walk away from a parked Ford Crown Victoria that had a door
open and loud music playing from inside the car. Corporal Costanzo
asked both men if they knew who owned the vehicle. Both men denied
ownership of the car; however, it was later determined the vehicle
belonged to Gladden. Corporal Costanzo went to the vehicle to
retrieve the keys and noticed a strong odor of marijuana coming
from inside the vehicle. He then observed Gladden walking away
from him toward the side of a residence. The officer yelled at
Gladden to stop, but Gladden ran away from the officer. Costanzo
observed Gladden remove a black handgun from his waistband.
Gladden disputed that he possessed a gun.
Corporal Costanzo testified that, after he gave Gladden
a verbal command to stop, Gladden began to run away with the gun
still in his hand. A foot chase ensued, with Costanzo pursuing
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Gladden over several fences and through backyards in the
neighborhood. Costanzo continued to shout to Gladden not to move,
“police,” but Gladden continued to run with the gun visible in his
hand. Gladden jumped into the back of a pick up truck, which was
stopped on a street corner at a stop sign. At that point, Costanzo
was approximately fifty to sixty feet behind the truck. Costanzo
testified that Gladden yelled to the driver, “go, go, go,” with the
gun in his hand pointed at the driver. Gladden held the gun down
by his hip at a ninety degree angle. There was a rear window
between the driver and Gladden and Gladden was approximately one or
two feet from the driver. Costanzo observed that the driver
“looked back to his left out the window, and when he turned around
he looked pretty surprised, his eyes bugging out. And he turned
back to the right, then he started to drive off with Mr. Gladden
still in the back.” (J.A. 37). Corporal Costanzo cut across a
yard and approached the truck, still on foot, and, with his own gun
drawn, yelled to the driver to stop the vehicle. The driver looked
at Costanzo and immediately stopped the vehicle. Gladden jumped
out and began to run again. Costanzo estimated that the truck had
traveled approximately 200 feet while Gladden was in the truck.
The driver of the truck left the scene and Costanzo continued to
pursue Gladden on foot. Gladden eventually ran inside a house and
the occupant came out screaming that someone just broke into his
house. Costanzo called in the address and requested more units to
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the scene. He tried to keep Gladden contained in the house.
Additional officers arrived and entered the house and apprehended
Gladden. Gladden no longer had the gun on his person. A gun was
later found by officers behind a shed that Gladden and Costanzo
circled several times during pursuit.
The presentence report (PSR) assigned a base offense
level of 20 pursuant to U.S. Sentencing Guidelines Manual § 2K2.1
(2006). Gladden received an additional six levels under USSG
§ 2K2.1(b)(4)(A) (stolen firearm) and USSG § 2K2.1(b)(6) (possessed
in connection with another felony offense). However, because
Gladden used the firearm in connection with a carjacking, the
probation officer applied the cross-reference in USSG
§ 2K2.1(c)(1)(A) to USSG § 2X1.1(a), which provides for the use of
“[t]he base offense level from the guidelines for the substantive
offense, plus any adjustments from such guideline for any intended
offense conduct that can be established with reasonable certainty.”
Accordingly, the PSR referenced the guideline for robbery, found in
USSG § 2B3.1, and recommended a base offense level of twenty. The
PSR added an additional six levels, pursuant to USSG
§ 2B3.1(b)(2)(B), because the firearm was “otherwise used” by
Gladden in the carjacking. Further, the PSR added four levels
pursuant to USSG § 2B3.1(b)(4)(A), because the truck driver was
abducted to facilitate commission of the offense or to facilitate
escape. Finally, the PSR added two levels pursuant to USSG
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§ 2B3.1(b)(5), because the offense involved a carjacking.
Therefore, the resulting adjusted offense level was 32.
After a three-level reduction for acceptance of
responsibility, pursuant to USSG § 3E1.1(a) and (b), the PSR
calculated Gladden’s total offense level as 29. This, combined
with Gladden’s criminal history category of VI, resulted in an
advisory Guidelines range of 120 to 151 months. However, because
the maximum term of imprisonment was ten years, the Guidelines
range became 120 months. Gladden moved for a downward variance,
and also objected to the cross reference provision in the PSR. The
Government agreed with Gladden that the enhancement under USSG
§ 2B3.1(b)(2) should have been five levels instead of six, thus the
recalculated range was 110 to 120 months. The district court
upheld the application of the cross reference and its enhancements,
denied Gladden’s motion for a downward variance, and sentenced
Gladden to a 120-month term of imprisonment.
In reviewing a sentencing judge’s application of the
sentencing guidelines, this court reviews factual determinations
for clear error. United States v. Green, 436 F.3d 449, 456 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006). “If the court’s
findings may rationally be said to be supported by a preponderance
of the evidence, they may not be disturbed on appeal.” United
States v. Crump, 120 F.3d 462, 468 (4th Cir. 1997).
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Gladden argues that the facts are insufficient to justify
the additional five levels for brandishing or possessing the
firearm because the carjacking incident only lasted seconds. He
contends that no one knew if the driver saw the weapon because he
was not identified and, without testimony from the victim, the
five-level enhancement is not appropriate. Considering the
officer’s detailed testimony, including that Gladden possessed the
gun before and after jumping into the truck, we conclude that the
district court did not clearly err in concluding that Gladden
possessed or brandished the gun in connection with the carjacking.
Next, Gladden argues that the district court erred in
finding that he abducted the driver to facilitate the carjacking or
escape. The district court’s determination that Gladden abducted
the victim should be reviewed de novo because it involves a legal
interpretation of the guideline. See United States v. Kinter, 235
F.3d 192, 195 (4th Cir. 2000) (citing United States v. Nale, 101
F.3d 1000, 1003 (4th Cir. 1996)).
The term “abducted” is defined in Application Note 1(A)
to USSG § 1B1.1 as meaning “that a victim was forced to accompany
an offender to a different location.” The example given is that of
a bank robber forcing a teller into a getaway car. Gladden argues
that, because he and the victim only traveled approximately 200
feet, he did not force the driver to go to a different location and
the event did not even constitute a temporary abduction. See Nale,
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101 F.3d at 1003 (temporary abduction can be sufficient for
purposes of § 2B3.1(b)(4)(A)). There are several cases from other
circuits in which a defendant was held to have abducted the victim
by forcing the victim to move (1) forty to fifty feet across a
parking lot, United States v. Hawkins, 87 F.3d 722, 728 (5th Cir.
1996); (2) out of a store and into the parking lot sixty-five feet
from the store’s entrance, United States v. Whooten, 279 F.3d 58,
60-61 (1st Cir. 2002); and (3) from the parking lot of a bank into
the main vault, United States v. Taylor, 128 F.3d 1105, 1110-11
(7th Cir. 1997). “[T]he abduction adjustment requires only that
force necessary to overcome the particular victim’s will.” United
States v. Saknikent, 30 F.3d 1012, 1014 (8th Cir. 1994). Here,
Gladden ordered the driver to “go, go, go,” held a gun in his view,
pointing it at him, and the officer testified that the driver
appeared to be alarmed. Finally, the truck moved approximately 200
feet. We therefore conclude that the district court did not err in
finding that the driver of the truck was abducted for purposes of
USSG § 2B3.1(b)(4)(A).
Gladden also challenges the two level enhancement under
USSG § 2B3.1(b)(5) for carjacking. “‘Carjacking’ means the taking
or attempted taking of a motor vehicle from the person or presence
of another by force and violence or by intimidation.” USSG
§ 2B3.1, comment.(n.1). Gladden’s sole objection to the
enhancement is that it should not have been applied when the driver
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of the truck did not testify. There is no requirement for the
victim’s testimony and, for the reasons discussed above related to
the sufficiency of the officer’s testimony regarding abduction, the
district court did not err in imposing the enhancement.
Finally, Gladden argues that, because the facts
underlying the applicable sentencing enhancements were marginal and
based only upon the testimony of Corporal Costanzo, his sentence is
unreasonable. This court will affirm a sentence if it “is within
the statutorily prescribed range and is reasonable.” United
States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006). A sentence that falls within the properly
calculated advisory guidelines range is entitled to a presumption
of reasonableness. United States v. Johnson, 445 F.3d 339, 341
(4th Cir. 2006); see Rita v. United States, 127 S. Ct. 2456,
2462-69 (2007) (upholding application of presumption of
reasonableness to within-guidelines sentence). Because Gladden was
sentenced within the properly calculated guidelines range, his
sentence is presumptively reasonable. This court reviews his
sentence under a deferential abuse of discretion standard. See
Gall v. United States, 128 S. Ct. 586, 597 (2007). After reviewing
the record, we conclude the district court did not abuse its
discretion.
We therefore affirm Gladden’s sentence. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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