United States v. Bellamy , 55 F. App'x 654 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4737
LEON BELLAMY,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-02-39, CR-02-40, CR-02-41, CR-02-42, CR-02-44, CR-02-45)
Submitted: January 28, 2003
Decided: February 6, 2003
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Harry L.
Hobgood, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.
2 UNITED STATES v. BELLAMY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Leon Bellamy pled guilty to six separate indictments charging six
bank robberies, 18 U.S.C. § 2113(a) (2000), and received a sentence
of ninety months imprisonment. He appeals his sentence, arguing that
the district court clearly erred in making a two-level adjustment for
reckless endangerment during flight. U.S. Sentencing Guidelines
Manual § 3C1.2 (2001). We affirm.
Bellamy robbed a number of banks in Greensboro, North Carolina.
He was pursued by the police after the last robbery and was appre-
hended when they rammed his car. Based on information from the
government, the probation officer recommended an adjustment for
reckless endangerment to which Bellamy objected. Bellamy asserted
in an affidavit that he had not traveled at 70 mph or exceeded the
speed of the other vehicles on the highway during the chase and that
he had attempted to pull off on the shoulder as soon as the police acti-
vated their blue lights, but that before he could stop the police decided
to ram his car. At the sentencing hearing, Bellamy did not testify.
Consequently, the district court did not consider his affidavit in deter-
mining the facts.
After hearing testimony from a police officer who had been
involved in Bellamy’s pursuit and arrest, the district court found that
the facts were not seriously in dispute, and determined that Bellamy
had created a substantial risk of death or serious bodily injury to
another during the portion of chase that took place on Lee Street, a
residential area, but not during the chase on Route 29, where drivers
commonly exceed the speed limit. The court estimated that Bellamy
drove at 60 to 70 miles per hour on Lee Street for about three-quarters
of a mile without giving any indication that he intended to slow or
stop, and that this conduct in a residential area created a substantial
risk to others even in the absence of evidence that there was a close
call with a pedestrian or another car.
UNITED STATES v. BELLAMY 3
The district court’s determination of the facts is reviewed for clear
error; its decision that the adjustment applied based on those facts is
reviewed de novo. United States v. Chong, 285 F.3d 343, 345 (4th
Cir. 2002). Bellamy argues that the district court clearly erred in mak-
ing the adjustment because the officer’s report of the incident did not
mention that the chase was dangerous. He further argues that it defies
logic that eight police cars would continue the chase if Bellamy was
driving recklessly or would stop his car by striking it if so doing
would endanger either persons or vehicles. However, when ques-
tioned about his report, the officer testified that he only addressed
matters pertaining to the criminal investigation of the bank robbery,
not "traffic matters." We conclude that the district court did not
clearly err in accepting the officer’s account of the incident in deter-
mining the facts.
Application Note 2 to § 3C1.2 adopts the definition of "reckless"
provided in Application Note 1 to USSG § 2A1.4, that is, that the
defendant "was aware of the risk created by his conduct and the risk
was of such a nature and degree that to disregard that risk constituted
a gross deviation from the standard of care that a reasonable person
would exercise in such a situation." We conclude that Bellamy could
not fail to recognize that a high-speed chase through a residential area
creates a substantial risk to vehicles and pedestrians in the area.
Because Bellamy persisted in his attempt to elude police in this man-
ner, the district court did not err in making the adjustment.
We therefore affirm the sentence imposed by the district court. We
deny Bellamy’s motion for new counsel. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED