United States v. Carmichael , 267 F. App'x 290 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5264
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TREMAYNE NAVARIS CARMICHAEL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-cr-00009)
Submitted: February 14, 2008 Decided: February 29, 2008
Before MOTZ and KING, Circuit Judges, and WILKINS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tremayne Navaris Carmichael pled guilty to possession of
a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and
was sentenced to a term of seventy-two months imprisonment.
Carmichael appeals his sentence, arguing that the district court
erred in making a 6-level adjustment for assault on a law
enforcement officer in a manner that created a substantial risk of
serious bodily injury during the offense, or immediate flight
therefrom, under U.S. Sentencing Guidelines Manual § 3A1.2(c)(1)
(2005). We affirm.
Carmichael was stopped by Goldsboro, North Carolina,
Police Officer Steven Powers because Carmichael’s vehicle matched
the description of a car involved in recent drive-by shooting.
Powers called for backup after seeing what appeared to be marijuana
on Carmichael’s pants. Carmichael, who had a loaded firearm
concealed in his waistband, tried to flee through the open
passenger-side window. After a brief struggle with Powers, who
reached in through the window on the driver’s side and grabbed his
legs, Carmichael succeeded in pulling the top half of his body out
of the window. Powers testified at the sentencing hearing that, at
this point, he looked over the roof of the car and saw a gun in
Carmichael’s hand, coming toward him. Powers shot and wounded
Carmichael.
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At sentencing, the district court heard conflicting
testimony about the incident from Powers, the backup officer,
Carmichael, and two witnesses to the incident. Carmichael
testified that he did not take the gun from his waistband before he
was shot. The court found Powers’ testimony to be the most
credible. Carmichael also argued that the § 3A1.2(c)(1) adjustment
required a finding that he intended to harm the officer, but he
informed the court that he would not object to a 2-level adjustment
under USSG § 3C1.2 (Reckless Endangerment). The court applied
§ 3A1.2, finding that Carmichael caused Powers to fear that he
would be shot, thus making the implied finding that his conduct
amounted to an assault in a manner that created a substantial risk
of serious bodily injury.
We review the district court’s factual findings for clear
error and its interpretation of the guidelines de novo. United
States v. Quinn, 359 F.3d 666, 679 (4th Cir. 2004). Application
Note 4 to § 3A1.2 states that “[s]ubsection (c) applies in
circumstances tantamount to aggravated assault” against a law
enforcement officer or prison official, and that “its applicability
is limited to assaultive conduct against such official victims that
is sufficiently serious to create at least ‘a substantial risk of
serious bodily injury.’” The commentary to § 3A1.2 does not define
aggravated assault. Nor does it require a showing of intent.
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Carmichael contends that the district court should have
applied the definition of aggravated assault set out in Application
Note 1 to USSG § 2A2.2 (Aggravated Assault). However, § 2A2.2 is
not applicable to Carmichael’s offense. Definitions of widely-used
terms are set out in USSG § 1B1.1 (Application Instructions).
Application Note 2 to § 1B1.1 states that definitions of terms
contained in other guidelines “are not designed for general
applicability” and “their applicability to sections other than
those expressly referenced must be determined on a case by case
basis.”
In this case, Carmichael concedes, as he did in the
district court, that his conduct caused a substantial risk of
serious injury to Powers, but maintains that only a 2-level
adjustment under § 3C1.2 was warranted. However, both
§ 3A1.2(c)(1) and § 3C1.2 may apply, without a finding of intent,
if the defendant created a substantial risk of serious bodily
injury. The difference is that, if the defendant’s conduct caused
the risk to an official victim, such as a law enforcement officer,
the 6-level adjustment under § 3A1.2 must be applied. See United
States v. Sloley, 19 F.3d 149, 154 (4th Cir. 1994);* USSG § 3C1.2,
comment. (n.1) (§ 3C1.2 should not be applied if another Chapter
*
When Sloley was decided, the pertinent language was in
§ 3A1.2(b) and the guideline provided only a three-level
adjustment. Amendment 664, effective November 1, 2004, added
subsection (c) and increased the adjustment to six levels.
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Three adjustment results in greater increase in offense level based
on same conduct).
Carmichael attempts to distinguish Sloley, asserting that
the only issue in that case was the district court’s factual
finding that Sloley assaulted the officer. However, like
Carmichael, Sloley argued that his conduct warranted the
application of § 3C1.2 instead of § 3A1.2. We noted in Sloley
that, if both § 3A1.2(b) and § 3C1.2 apply, the sentencing court
must apply § 3A1.2, which provides a greater increase, see 19 F.3d
at 154, and for that reason, we stated that the relevant question
was whether the defendant’s conduct warranted a finding that he had
assaulted the officer in a manner creating a substantial risk of
serious bodily injury. Id. Here, as in Sloley, Carmichael’s
conduct created a substantial risk of serious bodily injury to the
officer. We find no error in the court’s application of
§ 3A1.2(c)(1).
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 argument would not aid the decisional process.
AFFIRMED
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