United States v. Jefferson , 58 F. App'x 8 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4396
JOSEPH EDWARD JEFFERSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-01-933-2)
Submitted: December 23, 2002
Decided: January 15, 2003
Before WILKINS, LUTTIG, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Strom Thurmond, Jr., United States Attorney, Sean
Kittrell, Assistant United States Attorney, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. JEFFERSON
OPINION
PER CURIAM:
Joseph Edward Jefferson pled guilty to possession of a firearm dur-
ing a drug trafficking crime, 18 U.S.C. § 924(c) (2000) (Count Two),
possession of 5-50 grams of crack cocaine with intent to distribute,
21 U.S.C. § 841(a), (b)(1)(B) (2000) (Count Three), and possession
of a firearm by a convicted felon, 18 U.S.C. 922(g)(1) (2000) (Count
Four). He received a sentence of 135 months on Count Three, a con-
current sentence of 120 months (the statutory maximum) on Count
Four, and a 60-month consecutive sentence on Count Two. Jefferson
appeals his sentence, contesting the district court’s calculation of the
offense level for Count Four on two grounds. Because he did not raise
either of these issues in the district court, our review is for plain error.
United States v. Olano, 507 U.S. 725, 73237 (1993) (unpreserved
error may be corrected only if error occurred, that was plain, and that
affects substantial rights, and failure to correct error would seriously
affect the fairness, integrity, or public reputation of judicial proceed-
ings); United States v. McAllister, 272 F.3d 228, 230 (4th Cir. 2001).
On May 15, 2001, Jefferson drove away from a traffic stop and was
pursued by the police officer. Jefferson stopped his vehicle and ran
behind a residence. As the officer followed him through the back
yard, Jefferson paused at the fence and pointed a gun at him. At the
officer’s order, Jefferson dropped his gun, but again fled and escaped.
The gun proved to be a Bersa .380 caliber pistol, loaded and with a
round chambered. In a search of Jefferson’s vehicle, police officers
found twenty-six grams of crack. This conduct was the basis for
Counts Two and Three.
On July 11, 2001, after receiving a tip that Jefferson was on the
porch of a certain house, the police approached. Jefferson ran into the
back yard, where he was confronted by more police officers. He then
ran to the fence on the side of the yard, pulling an object from under
his shirt and dropping it as he ran. Jefferson went over the fence into
the next yard, but was quickly captured. In the spot where Jefferson
had dropped the object, the officers found a 9 mm semiautomatic pis-
tol with a round chambered and an ammunition clip nearby. This con-
duct was the basis for Count Four.
UNITED STATES v. JEFFERSON 3
In the presentence report, the recommended base offense level for
Count Four was 26, which applies when the offense involves "a fire-
arm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30)," and
the defendant has two prior felony convictions for either a crime of
violence or a drug offense. USSG § 2K2.1(a)(1). The probation offi-
cer also recommended another two-level adjustment for reckless
endangerment during flight, § 3C1.2, which yielded an offense level
of 28. Without objection from Jefferson, the district court adopted
these recommendations.
On appeal, Jefferson first contends that the district court plainly
erred in applying the enhanced base offense level in § 2K2.1(a)(1)
because the firearm he possessed on July 11 is not one of those speci-
fied in the guideline. The government concedes that the 9 mm Taurus
semiautomatic pistol that Jefferson possessed on July 11, 2001, is not
described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30) and that
the district court should have applied base offense level 24 under
§ 2K2.1(a)(2). The parties agree that the error, while plain, should not
require resentencing unless we also conclude that the reckless endan-
germent adjustment on Count Four was plain error. This is so
because, if the correct offense level for Count Four is 26, it is still
within four levels of the offense level for Count Three. Therefore, two
units would still be added under § 3D1.4 and the combined adjusted
offense level for both counts would remain at 32.
We cannot conclude that the adjustment for reckless endangerment
on Count Four was plain error. A two-level adjustment is provided
under USSG § 3C1.2 for conduct that "recklessly created a substantial
risk of death or serious bodily injury to another person" while fleeing
from a law enforcement officer. Application Note 2 adopts the defini-
tion of "reckless" 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 consti-
tuted a gross deviation from the standard of care that a reasonable per-
son would exercise in such a situation."
Jefferson argues that his conduct on July 11 constituted mere flight
and did not create a threat to any person because he did not display
or point the gun at anyone; he posits that merely carrying a gun does
not constitute reckless endangerment. He is correct to that extent.
4 UNITED STATES v. JEFFERSON
However, Jefferson did more than carry a firearm on July 11. While
he was fleeing from the officers, he threw down his gun, which was
loaded, had a round chambered, and was ready to fire. There was a
risk that the pistol would discharge accidentally when dropped which
created a substantial risk of injury to the pursuing officers. In addi-
tion, had the officers not found the gun, it would have constituted a
substantial risk of injury to the community. Consequently, we con-
clude that the district court did not plainly err in accepting the proba-
tion officer’s recommendation that the adjustment applied on Count
Four.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED