United States v. Brooks , 196 F. App'x 203 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5058
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCUS DOMINIC BROOKS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. David A. Faber, Chief
District Judge. (CR-04-40)
Submitted: June 21, 2006 Decided: August 30, 2006
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Mark Sutton, SUTTON & JANELLE, P.L.L.C., Martinsburg, West
Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Marcus Dominic Brooks appeals the 262-month sentence
imposed by the district court after he pled guilty to conspiracy to
possess with intent to distribute and to distribute fifty grams or
more of crack cocaine, in violation of 21 U.S.C. § 846 (2000);
possession with intent to distribute 108 grams of crack, in
violation of 21 U.S.C. § 841(a)(1) (2000), and 18 U.S.C. § 2(2000); and possession with intent to distribute 129 grams of
cocaine, in violation of § 841(a)(1) and § 2. On appeal, Brooks
asserts that the district court erred by applying a two-level
upward adjustment under U.S. Sentencing Guidelines Manual § 3C1.2
(2004), for reckless endangerment during flight. He also asserts
that the court erred by refusing to award a downward adjustment
under USSG § 3E1.1 for acceptance of responsibility. We affirm.
In a post-Booker* sentencing, such as this, a district
court must calculate the applicable guideline range after making
the appropriate findings of fact, consider the range in conjunction
with other relevant factors under the guidelines and 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006), and impose a sentence. United
States v. Moreland, 437 F.3d 424, 432 (4th Cir.) (citing United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)), cert. denied,
126 S. Ct. 2054 (2006). The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Hughes, 401
*
United States v. Booker, 543 U.S. 220 (2005).
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F.3d at 546-47 (citations omitted). In reviewing the calculation
of the advisory sentencing guideline range, this court “review[s]
the district court’s legal conclusions de novo and its factual
findings for clear error.” United States v. Hampton, 441 F.3d 284,
287 (4th Cir. 2006).
Brooks asserts on appeal that the district court erred in
failing to apply a two-level downward adjustment for acceptance of
responsibility. We review a district court’s decision to grant or
deny an adjustment for acceptance of responsibility for clear
error. United States v. May, 359 F.3d 683, 688 (4th Cir. 2004).
Our review of the record convinces us that the district court did
not clearly err in refusing to apply an acceptance of
responsibility downward adjustment.
Brooks also challenges the district court’s application
of the upward adjustment for reckless endangerment during flight.
He contends that he did not create a substantial risk of death or
serious bodily injury because there was no high-speed pursuit,
there was only minimal property damage from his backing into an
officer’s unmarked vehicle, and no one was injured. Because Brooks
challenges the application of the reckless endangerment adjustment
to the undisputed facts of his case, our review is de novo. See
Hampton, 441 F.3d at 287; United States v. Butner, 277 F.3d 481,
487-88 (4th Cir. 2002) (reviewing de novo legal ruling based upon
undisputed facts). After thoroughly reviewing the record on
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appeal, we are convinced that the adjustment was warranted. See
United States v. Galvan, 407 F.3d 954, 957-58 (8th Cir.) (upholding
upward adjustment under § 3C1.2 where officers pursued defendant
into residential neighborhood, and defendant abruptly made U-turn
and drove his car close to officers approaching on foot), cert.
denied, 126 S. Ct. 497 (2005).
Accordingly, we affirm Brooks’ sentence. 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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