United States v. Tabari A. Spann ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4398
TABARI A. SPANN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-99-6)
Submitted: September 30, 1999
Decided: October 20, 1999
Before NIEMEYER and LUTTIG, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
W. James Hoffmeyer, NETTLES, MCBRIDE & HOFFMEYER,
P.A., Florence, South Carolina, for Appellant. J. Rene Josey, United
States Attorney, Alfred W. Bethea, Jr., Assistant United States Attor-
ney, Florence, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Tabari Spann pled guilty to armed bank robbery, see 18 U.S.C.A.
§ 2113(a) (West Supp. 1999), and to using and carrying a firearm dur-
ing and in relation to a crime of violence. See 18 U.S.C.A. § 924(c)
(West Supp. 1999). He was sentenced to a term of fifty-seven months
imprisonment for the robbery and a consecutive ten-year sentence
under § 924(c)(1)(B)(i). Spann claims on appeal that the district court
erred when it added two offense levels pursuant to U.S. Sentencing
Guidelines Manual § 3C1.2 (1998) (Reckless Endangerment During
Flight), after making a three-level adjustment under§ 3A1.2(b) (Offi-
cial Victim), because both were based on the same conduct. We
affirm.
Spann and two friends robbed a bank in Marion, South Carolina,
at gunpoint while Spann's pregnant girlfriend, two other women, and
four small children waited in two getaway cars. Police arrived
quickly. As the robbers drove away, Spann fired the semi-automatic
pistol he was carrying at the officers. A high-speed chase followed for
at least ten or twelve miles. Eventually, both getaway cars crashed,
and Spann and the others were arrested. No injuries resulted. In sen-
tencing Spann, the district court added three offense levels under
USSG § 3A1.2(b), finding that Spann had assaulted the police officers
in a manner creating a substantial risk of serious bodily injury by fir-
ing a gun at them, and another two levels under USSG§ 3C1.2, find-
ing that the chase created a danger of serious bodily injury to the
children in the getaway cars and to the public.
The commentary to § 3C1.2 directs that the enhancement should
not be applied "where the offense guideline in Chapter Two or
another adjustment in Chapter Three, results in an equivalent or
greater increase in offense level solely on the basis of the same con-
duct." USSG § 3C1.2, comment. (n.1). However, circuits which have
2
addressed the issue raised here have uniformly held that both adjust-
ments may be applied where each is triggered by separate conduct.
See, e.g., United States v. Rodriguez-Matos , ___ F.3d ___, 1999 WL
727038, at *11 (11th Cir. Sept. 17, 1999); (assault on officer with
vehicle followed by high speed chase); United States v. Miner, 108
F.3d 967, 970 (8th Cir. 1997) (same); United States v. Alexander, 48
F.3d 1477, 1493 (9th Cir. 1995) (high-speed chase during which shots
fired at pursuing officers resulting in danger to police and public);
United States v. Swoape, 31 F.3d 482, 483 (7th Cir. 1994) (high-speed
chase in which three officers shot and public endangered). Cf. United
States v. Hayes, 135 F.3d 435, 438 (6th Cir. 1998) (one incident justi-
fying only one adjustment where defendant rammed several police
cars with his vehicle, injuring a police officer and endangering a child
in his own vehicle).
The Fourth Circuit precedents on which Spann relies are not con-
trolling. Neither United States v. Sloley, 19 F.3d 149 (4th Cir. 1994),
nor United States v. John, 935 F.2d 644, 646 (4th Cir. 1991),
addressed the precise issue raised here. Moreover, we find no error in
the district court's determination that Spann's assault with a semi-
automatic weapon on the police officers near the bank was a separate
occurrence from the flight at high speed, and that the latter created a
separate risk of death or serious injury to both the children and the
public, and warranted an adjustment under § 3C1.2.
We therefore affirm the 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
3