United States v. Clifton Johnson , 457 F. App'x 330 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4386
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLIFTON EARL JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:10-cr-00234-D-1)
Submitted: November 30, 2011 Decided: December 14, 2011
Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, John H. Bennett, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clifton Earl Johnson appeals his 108-month sentence
following his guilty plea to armed bank robbery. ∗ He contends
that the district court erred by enhancing his sentence by six
offense levels for creating a substantial risk of bodily harm to
a law enforcement officer, United States Sentencing Commission
Guidelines Manual § 3A2.1 (2010), and by also imposing a two-
level enhancement for reckless endangerment during flight. We
affirm.
Johnson first asserts that the district court erred by
applying the six-level enhancement for assault on a law
enforcement officer. Johnson does not contest that he assaulted
a person by pointing his firearm at him during his flight from
the bank, but he challenges the enhancement on the ground that
there was no evidence that he knew or had reason to believe that
the person at whom he pointed his gun was a police officer.
The six-level enhancement is applied if, “in a manner
creating a substantial risk of serious bodily injury, the
defendant . . . knowingly or having reasonable cause to believe
that a person was a law enforcement officer, assaulted such
∗
Johnson also pled guilty to using or carrying a firearm
during and in relation to a crime of violence, and was sentenced
to a consecutive sentence of 84 months. He does not challenge
this sentence on appeal.
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officer during the course of the offense or immediate flight
therefrom.” USSG § 3A1.2(c)(1). The district court reviewed a
statement Johnson made upon his arrest, in which Johnson stated
that, after he exited the bank, he “saw an unmarked police car
coming towards [him]. The officer jumped out of the car and
fired two shots at [him]. [He] had the gun in [his] hand at
[his] side. [He] asked him why he was shooting at [him]. The
officer told [him] to get down. [He] told [the officer] that
[he] had a bad knee and could not. The officer fired three more
shots. [He] brought the gun up.”
The court made the factual determination that, based
on this statement, Johnson “knew or had reasonable cause to
believe that the person who was in the vehicle was a law
enforcement officer.” The court found that the enhancement was
appropriately applied.
We find no clear error in the district court’s factual
finding that Johnson, at the time of the conduct, knew or had
reason to believe that the person at whom he pointed his weapon
was a law enforcement officer. United States v. Hampton, 628
F.3d 654, 659 (4th Cir. 2010); see United States v. McAllister,
272 F.3d 228, 234 (4th Cir. 2001). We therefore uphold the
imposition of the six-level sentence enhancement under USSG
§ 3A1.2(c)(1). See Hampton, 628 F.3d at 659.
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Johnson next contends that the district court erred by
applying the two-level enhancement for reckless endangerment
during flight, in addition to the six levels added for the
assault on the law enforcement officer. Because Johnson did not
raise this issue in the district court, we review the claim for
plain error. Fed. R. Crim. P. 52(b); United States v. Lynn, 592
F.3d 572, 580 (4th Cir. 2010). To establish plain error,
Johnson must show that error occurred, the error was plain, and
the error affected his substantial rights. United States v.
Moussaoui, 591 F.3d 263, 295 (4th Cir. 2010). Even if Johnson
establishes that there was plain error, “the court will not
‘correct the forfeited error . . . unless [it] seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” Id. (quoting United States v. Olano,
507 U.S. 725, 731-32 (1993)).
Section 3C1.2 provides for a two-level enhancement “if
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.” USSG § 3C1.2. Johnson
contends that the application of both enhancements is contrary
to the Guidelines and this court’s precedent. He cites to
Application Note 1 of § 3C1.2, which provides that the reckless
endangerment enhancement should not apply when “another
adjustment in Chapter Three, results in an equivalent or greater
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increase in offense level solely on the basis of the same
conduct.” USSG § 3C1.2, comment. (n.1); see United States v.
Sloley, 19 F.3d 149, 154 (4th Cir. 1994). However, this court
has held that both the § 3A1.2 enhancement and the § 3C1.2
enhancement may be applied if “each is triggered by separate
conduct.” United States v. Harrison, 272 F.3d 220, 223 (4th
Cir. 2001).
The district court found that both enhancements were
appropriate. Johnson’s conduct of pointing his firearm at the
police officer constituted an assault on the law enforcement
officer, justifying the six-level enhancement under § 3A1.2.
See N.C. Gen. Stat. § 14.34 (2009). His failure to obey the
officer’s repeated commands to drop his weapon resulted in the
officer firing his weapon at least four times. Thus, by failing
to comply with the officer’s directive, Johnson committed
separate conduct that created a “substantial risk of death or
serious bodily injury” to the officer or to any other person in
the area of the bank. The district court did not clearly err in
determining that the conduct that amounted to an assault was
separate and distinct from the conduct that resulted in the
officer firing his weapon, which thereby justified the
additional enhancement under § 3C1.2. See United States v.
Alicea, 205 F.3d 480, 486 (1st Cir. 2000) (holding that high
speed chase and shots fired at pursuing officers separately
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endangered police and public, justifying both enhancements);
United States v. Matos-Rodriguez, 188 F.3d 1300, 1312 (11th Cir.
1999).
Having discovered no error, much less plain error in
the district court’s application of both the § 3A2.1 enhancement
and the § 3C1.2 enhancement, we affirm the 108-month sentence
imposed on Johnson for the armed bank robbery offense. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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