United States v. Zater ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4304
RYAN LEE ZATER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-00-626)
Submitted: November 26, 2001
Decided: December 20, 2001
Before WILKINS, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Stacey Denise Haynes, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. ZATER
OPINION
PER CURIAM:
Pursuant to a plea agreement, Ryan Lee Zater pled guilty to: (1)
conspiracy to commit armed bank robberies (18 U.S.C.A. §§ 371,
2113(a), (d) (West 1994 & Supp. 2001)), (2) using, carrying and bran-
dishing a firearm in relation to a crime of violence (18 U.S.C.A.
§ 924(c)(1)(A)(ii) (West 1994 & Supp. 2001)), and (3) brandishing
and discharging a firearm in relation to a crime of violence (18
U.S.C.A. § 924(c)(1)(A)(iii) (West 1994 & Supp. 2001)). He was sen-
tenced to a total of 444 months imprisonment and five years of super-
vised release. Zater noted a timely appeal and his counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
there are no meritorious issues for appeal. The time has passed for
Zater to file a pro se supplemental brief, and he has not done so.
We review de novo the adequacy of a guilty plea pursuant to the
standards set forth Fed. R. Crim. P. 11. United States v. Goins, 51
F.3d 400, 402 (4th Cir. 1995). We find that the district court complied
in all respects with the requirement of Fed. R. Crim. P. 11 and prop-
erly entered Zater’s guilty plea. United States v. Goins, 51 F.3d at 402(providing standard). Zater knowingly, voluntarily and intelligently
offered his plea, fully aware of all the consequences that would flow
from such an action. Godinez v. Moran, 509 U.S. 389, 400 (1993).
Zater, through counsel, also made the following three objections at
sentencing, two of which warrant attention: (1) objection to a three-
level enhancement for assault on a law enforcement official during
flight and which created a substantial risk of bodily injury, (2) objec-
tion to a two-level enhancement for obstruction of justice, and (3)
objection to the criminal history category III as applied to Count
One.* The district court properly overruled the third objection
because even at the lowest criminal history category, the statutory
maximum was below the applicable guidelines range, so the criminal
history category did not affect Zater’s sentence. The other two objec-
*As to the remaining counts, Zater was sentenced to the statutory
minimum terms of imprisonment.
UNITED STATES v. ZATER 3
tions, however, give rise to issues of double counting and deserve
some attention here.
Zater objected to the three-level enhancement he received under
USSG § 3A1.2(b) for assault on an officer during flight, and argued
that it addressed actions covered by the four-level enhancement he
had already received under USSG § 2B3.1(b)(3) for inflicting bodily
injury on a victim. In the presentence report, the probation officer rec-
ommended the § 2B3.1(b)(3) enhancement based upon the serious
injuries suffered by the two police officers who gave chase to Zater,
his brother, and Graves. However, the probation officer also used
these injuries to justify a three-level enhancement under § 3A1.2(b).
Zater argued that because both enhancements stem from the same
action, i.e., inflicting serious bodily injury upon the two police offi-
cers, the invocation of both enhancements represents double counting.
We find this argument to be without merit. "Absent an instruction
to the contrary, the adjustments from different guideline sections are
applied cumulatively (added together)." USSG § 1B1.1, comment.
(n.4). If there are no specific provisions that instruct otherwise, then
the same conduct may support enhancements from different guide-
lines where there is no provision excluding double counting. United
States v. Curtis, 934 F.2d 553, 556 (4th Cir. 1991). See also United
States v. Swoape, 31 F.3d 482 (7th Cir. 1994). Because there is no
express prohibition in the guidelines against utilizing enhancements
under both § 3A1.2(b) and § 2B3.1(b)(3), for the same conduct, the
district court did not err in applying both enhancements to Zater.
United States v. Crawford, 18 F.3d 1173, 1179-80 (4th Cir. 1994).
Zater also objected to the two-level enhancement he received under
USSG § 3C1.2 for reckless endangerment during flight, and argued
that it addressed actions covered by the three-level enhancement he
had already received under USSG § 3A1.2(b) for assault on an officer
during flight. In the presentence report, the probation officer recom-
mended the § 3C1.2 enhancement based upon Zater’s creation of a
substantial risk of death or serious bodily harm during a high speed
chase through a residential neighborhood.
Enhancements under both § 3A1.2 and § 3C1.2 require a factual
determination that each is based upon separate conduct. In similar
cases, other circuits have held that both adjustments may be applied
where each is triggered by separate conduct. United States v.
4 UNITED STATES v. ZATER
Rodriguez-Matos, 188 F.3d 1300 (11th Cir. 1999); United States v.
Miner, 108 F.3d 967, 970 (8th Cir. 1997); United States v. Alexander,
48 F.3d 1477, 1493 (9th Cir. 1995). If the defendant’s action involves
only a single type of conduct, however, this court has stated by way
of dicta, "If both § 3A1.2(b) and § 3C1.2 apply to a defendant, the
court must apply only the former and increase the offense level by
three levels." United States v. Sloley, 19 F.3d 149, 154 (4th Cir.
1994).
The district court found Zater’s conduct justifying an enhancement
under § 3A1.2 was separate and distinct from the conduct justifying
an enhancement under § 3C1.2. In support of the enhancement under
§ 3C1.2, the probation officer cited to the high-speed chase between
Zater and law enforcement officers. In support of the enhancement
under § 3A1.2, though, the probation officer cited to the assault that
ensued during that high-speed car chase. In addition, the district court
adopted the Government’s distinction between the endangerment of
officers and civilians that occurred during the chase through a resi-
dential neighborhood and the subsequent assault on officers during a
shootout. See also United States v. Alicea, 205 F.3d 480 (1st Cir.
2000) (district court properly determined that vehicle chase and ensu-
ing gunfight were two distinct sets of facts warranting enhancements
under both § 3A1.2 and § 3C1.2). Further, the court noted that the
shootout endangered bystanders. The district court provided a clear
factual determination that it considered separate and distinct conduct
for each enhancement provision. Therefore, its simultaneous applica-
tion of § 3A1.2 and § 3C1.2 was appropriate.
We therefore affirm the district court’s judgment. This court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED