United States v. Montez Gaddy ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4551
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MONTEZ GADDY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:13-cr-00325-RJC-DCK-1)
Submitted: May 31, 2016 Decided: July 13, 2016
Before AGEE, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE, Cary,
North Carolina, for Appellant. Jill Westmoreland Rose, United
States Attorney, Anthony J. Enright, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In an effort to elude police during a traffic stop, Montez
Gaddy, who was driving a Mustang, struck a stationary vehicle
with Deputy United States Marshal Joe Graham inside. A high
speed car chase ensued and Gaddy was ultimately apprehended.
Following a trial, a jury found Gaddy guilty of assaulting,
resisting, opposing, impeding, intimidating, and interfering
with a Deputy United States Marshal in the performance of his
official duties, using a dangerous weapon, to wit: a vehicle, in
violation of 18 U.S.C. § 111(a)(1), (b) (2012). The district
court sentenced him to 120 months’ imprisonment. Gaddy
appealed.
On appeal, Gaddy argues that the district court erroneously
calculated his Guidelines range. We review any criminal
sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” for reasonableness, “under a
deferential abuse-of-discretion standard.” United States v.
King, 673 F.3d 274, 283 (4th Cir. 2012); see Gall v. United
States, 552 U.S. 38, 41, 51 (2007).
Gaddy first argues that the district court erred in
assigning him a base offense level under U.S. Sentencing
Guidelines Manual § 2A2.2 (2014), governing “Aggravated
Assault,” rather than assigning him a base offense level under
USSG § 2A2.4, governing “Obstructing or Impeding Officers.”
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The statutory index to the Guidelines lists both the aggravated
assault Guideline and obstruction Guideline as potentially
applicable to 18 U.S.C. § 111 violations. See USSG App. A
(statutory index). In turn, the obstruction Guideline contains
a cross-reference to the aggravated assault Guideline if the
defendant’s conduct in obstructing the officer constituted an
aggravated assault. USSG § 2A2.4(c)(1).
Aggravated assault is defined as “a felonious assault that
involved (A) a dangerous weapon with intent to cause bodily
injury (i.e., not merely to frighten) with that weapon; (B)
serious bodily injury; (C) strangling, suffocating, or
attempting to strangle or suffocate; or (D) an intent to commit
another felony.” * USSG § 2A2.2 cmt. n.1. Thus, § 2A2.2 applies
to defendants who commit a felonious assault involving any one
of the four enumerated scenarios. See United States v. Rue, 988
F.2d 94, 96 (10th Cir. 1993) (holding that “[t]he plain language
of this definition of [aggravated assault] requires § 2A2.2 be
applied if any of the . . . described situations exists”).
Here, the district court found that the felonious assault
involved a dangerous weapon with intent to cause bodily injury.
* A dangerous weapon “includes any instrument that is not
ordinarily used as a weapon (e.g., a car, a chair, or an ice
pick) if such an instrument is involved in the offense with the
intent to commit bodily injury.” USSG § 2A2.2 cmt. n.1; see
USSG § 1B1.1 cmt. n.1(A), (D).
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“Sentencing judges may find facts relevant to determining a
Guidelines range by a preponderance of the evidence,” United
States v. Cox, 744 F.3d 305, 308 (4th Cir. 2014) (internal
quotation marks omitted), that is, the court must find these
facts “more likely than not” to be true, see United States v.
Kiulin, 360 F.3d 456, 461 (4th Cir. 2004). The jury found that
Gaddy used a dangerous weapon — a vehicle — to commit the
offense, and Gaddy concedes that the Mustang could be considered
a dangerous weapon. However, he takes issue with the district
court’s finding that he had intent to cause bodily injury to
Agent Graham.
At trial, Graham and other officers testified that Gaddy
struck Graham’s vehicle with the Mustang and that Gaddy’s
actions were deliberate. Despite Gaddy’s claim that he was
merely attempting to flee the scene, we conclude that the
district court could reasonably infer from Gaddy’s actions that
he intended to cause bodily injury to Agent Graham with the
Mustang. See, e.g., United States v. Valdez-Torres, 108 F.3d
385, 388 (D.C. Cir. 1997); United States v. Garcia, 34 F.3d 6,
10-11 (1st Cir. 1994).
Gaddy also contends that the district court erred in
applying USSG § 2A2.2(a), because the issue of intent to cause
bodily injury was not submitted to the jury and proven beyond a
reasonable doubt, in contravention of Apprendi v. New Jersey,
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530 U.S. 466 (2000), and its progeny. Apprendi held “[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.”
530 U.S. at 490. The Supreme Court went a step further in
Alleyne v. United States, 133 S. Ct. 2151 (2013), declaring,
“[m]andatory minimum sentences increase the penalty for a crime.
It follows, then, that any fact that increases the mandatory
minimum is an ‘element’ that must be submitted to the jury.”
133 S. Ct. at 2155.
These decisions have no application in Gaddy’s case. The
district court’s factual finding regarding intent did not
increase Gaddy’s statutory minimum or maximum sentence, but
merely determined his Guidelines range within the prescribed
statutory range. Courts have consistently rejected claims that
facts underlying a defendant’s Guidelines range must be
submitted to a jury. See United States v. Booker, 543 U.S. 220,
233 (2005) (“[W]hen a trial judge exercises his discretion to
select a specific sentence within a defined range, the defendant
has no right to a jury determination of the facts that the judge
deems relevant.”); see also Alleyne, 133 S. Ct. at 2163 (“Our
ruling today does not mean that any fact that influences
judicial discretion must be found by a jury. We have long
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recognized that broad sentencing discretion, informed by
judicial factfinding, does not violate the Sixth Amendment.”).
Next, Gaddy argues that the district court erred in
applying a four-level enhancement pursuant to USSG
§ 2A2.2(b)(2)(B) for use of a dangerous weapon during the
offense. The same reasoning that supports application of USSG
§ 2A2.2(a) also supports application of § 2A2.2(b)(2)(B), and
the commentary specifically provides that “[i]n a case involving
a dangerous weapon with intent to cause bodily injury, the court
shall apply both the base offense level and subsection (b)(2).”
USSG § 2A2.2 cmt. n.3 (emphasis added). Furthermore, after
striking Agent Graham’s car and fleeing the scene, Gaddy led
police on a high speed car chase in heavy traffic, resulting in
at least one accident. As the Government notes, “[f]leeing from
law enforcement authorities by driving [a vehicle] recklessly
and at a high rate of speed to escape capture constitute[s]
another dangerous, life-threatening use of the vehicle — which
already had become a dangerous weapon in the course of this
criminal event . . . and this second dangerousness justifies the
enhancement for otherwise using a dangerous weapon.” United
States v. Morris, 131 F.3d 1136, 1138 (5th Cir. 1997).
Gaddy also asserts that the district court erred by
increasing his offense level under USSG § 2A2.2(b)(7). This
provision calls for a two-level increase if the defendant was
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convicted under 18 U.S.C. § 111(b). Gaddy contends that this
increase, as well as the four-level increase under USSG
§ 2A2.2(b)(2)(B), amount to double counting.
In applying the Guidelines, double counting is permitted
unless expressly prohibited. United States v. Rivera-Santana,
668 F.3d 95, 201 (4th Cir. 2012); see also USSG § 1B1.1 cmt. n.4
(“The offense level adjustments from more than one specific
offense characteristic within an offense guideline are applied
cumulatively (added together) unless the guideline specifies
that only the greater (or greatest) is to be used.”).
Section 2A2.2 does not expressly prohibit double counting. The
district court properly applied both enhancements.
Finally, Gaddy challenges the six-level enhancement under
USSG § 3A1.2(b), which applies when the victim of the offense is
a government officer or employee, the defendant was motivated by
the victim’s status as a government officer or employee in
committing the offense, and “the applicable Chapter Two
guideline is from Chapter Two, Part A (Offenses Against the
Person).” USSG § 3A1.2(b). Gaddy questions the finding that he
knew that Agent Graham was a law enforcement officer.
The evidence presented at trial showed that the emergency
lights on Agent Graham’s vehicle were activated when Gaddy drove
into it. Graham and Gaddy had eye contact before the collision.
Gaddy’s own trial testimony revealed that he was well aware that
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Graham was a law enforcement official. Claiming that it had
actually been Graham who had driven into him, Gaddy testified,
“I couldn't even believe [sic] he hit me for real because, I
mean, that’s not what the police do.” We conclude that a
preponderance of the evidence supports application of the
§ 3A1.2(b) enhancement.
Accordingly, we affirm Gaddy’s sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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