United States v. Tate , 15 F. App'x 91 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4484
ADRIAN LAMONT TATE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-98-310-HNM)
Submitted: June 26, 2001
Decided: July 27, 2001
Before NIEMEYER and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Timothy S. Mitchell, Greenbelt, Maryland, for Appellant. Stephen M.
Schenning, United States Attorney, Hollis Raphael Weisman, Assis-
tant United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. TATE
OPINION
PER CURIAM:
Adrian Lamont Tate was convicted by a jury of assaulting a federal
officer, in violation of 18 U.S.C.A. § 111(b) (West 2000). He was
sentenced to a term of ninety-six months imprisonment and appeals
his conviction and sentence. Tate filed an untimely appeal, but he was
permitted to proceed with his appeal after the district court made a
finding of excusable neglect. United States v. Tate, No. 98-0310 (D.
Md. Oct. 17, 2000). Tate contends that the district court erred in
admitting a tape recording of the communications between police
officers pursuing his automobile and the police dispatcher during a
twenty-two mile chase on the Baltimore Washington Parkway. He
also contends that the court erred in various respects when imposing
sentence. We affirm.
Tate was apprehended after the aforementioned chase on May 20,
1998. Tate attracted an officer’s attention because he did not have a
front license plate and the rear plate was an expired temporary plate
for another vehicle. He did not comply when the officer attempted to
effect a traffic stop, but instead increased his speed. The pursuing
officer radioed the dispatcher to report on the situation and the chase
was joined by four other officers. The conversation between the offi-
cers involved in the chase and the dispatcher was recorded. During
the course of the chase, the officers, in marked police vehicles with
emergency lights and sirens engaged, attempted to create a box
around Tate’s automobile to bring it to a halt. Tate thwarted this
maneuver three times by steering his car toward the vehicle of Officer
David Tolson, forcing Tolson’s patrol car off the road each time. Tate
was only apprehended after a crash disabled Tate’s car.
At trial, three officers involved in the chase testified to the facts of
the case and described the three occasions when Tate forced Officer
Tolson off the road. The Government also played a tape recording of
the communications between the officers involved in the chase and
their dispatcher. The court admitted the tape after three officers testi-
fied they could identify their voices and the voices of fellow officers
on the tape. The court also noted that the tape was not the result of
UNITED STATES v. TATE 3
a police investigation, but was a contemporaneous recording of the
events as they unfolded.
The standard of review for the admission of a tape recording is
abuse of discretion. See United States v. Capers, 61 F.3d 1100, 1106
(4th Cir. 1995). This Court will not find error "unless the foundation
for admission is clearly insufficient to insure the accuracy of the
recording". Id. (citing United States v. Clark, 986 F.2d 65, 69 (4th
Cir. 1993)). "The proponent of an audio recording must show that the
recording was sufficiently authentic to be admitted into evidence."
United States v. Wilson, 115 F.3d 1185 (4th Cir. 1997).
We find that testimony by three officers that the tape contained
their voices and that it accurately reflected the incident was sufficient
to establish the authenticity of the tape. We further find that the tape
was admissible under the hearsay exception for excited utterances or
present sense impressions. See United States v. Jackson, 124 F.3d
607, 617 (4th Cir. 1997). Accordingly, we affirm the district court’s
evidentiary ruling, and its judgment of conviction.
Tate also raises several challenges to his sentence. We initially find
that, contrary to Tate’s contention, the district court’s denial of a two-
level adjustment for acceptance of responsibility was not error. Tate
denied using the car as a deadly weapon, absconded from pretrial
supervision and failed to appear for his scheduled trial, all of which
was inconsistent with acceptance of responsibility.
We further find that the district court, in light of Tate’s conviction
under 18 U.S.C. § 111(b), properly used U.S.S.G. § 2A2.2 to establish
the base offense level. See U.S.S.G. App. A. Because U.S.S.G.
§ 2A2.2 is appropriate for any aggravated assault, the increase in the
offense level to account for Tate’s use of the car as a dangerous
weapon and Tate’s assault on an official victim was proper and did
not, as Tate contends, constitute impermissible double counting.
United States v. Williams, 954 F.2d 204, 205-08 (4th Cir. 1992);
United States v. Kleinebreil, 966 F.2d 945, 955 (5th Cir. 1992).
Tate’s final argument relates to the use of his juvenile criminal his-
tory to determine his criminal history points. Tate contends that he
never was found "involved" in the juvenile offenses for which he was
4 UNITED STATES v. TATE
awarded criminal history points, but this assertion is belied by the
record, which reflects he was found involved on four occasions, three
of which occurred within five years of the commencement of the
present offense. U.S.S.G. § 4A1.4, comment. (n.7). Tate’s total of six
points based on his juvenile history results from three separate
courses of criminal conduct, all of which were punished by confine-
ment for nearly four years at three separate institutions. We find that
the three offenses, although punished concurrently, were separate and
not part of a single scheme or plan and therefore the district court did
not err in awarding two points for each conviction. See United States
v. Breckenridge, 93 F.3d 132, 137 (4th Cir. 1996).
Tate’s conviction and sentence are accordingly affirmed. We deny
the Government’s motion to dismiss as untimely as moot in light of
the district court’s finding of excusable neglect. 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