United States v. Eric Henderson ( 2023 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4235
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC HENDERSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Kenneth D. Bell, District Judge. (3:20-cr-00288-KDB-DSC-1)
Argued: October 26, 2023 Decided: December 13, 2023
Before GREGORY and AGEE, Circuit Judges, and Robert S. BALLOU, United States
District Judge for the Western District of Virginia, sitting by designation.
Reversed by published opinion. Judge Gregory wrote the opinion, in which Judge Agee
and Judge Ballou joined.
ARGUED: Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee. ON BRIEF: William T. Stetzer, Acting United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
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GREGORY, Circuit Judge:
Eric Henderson appeals his sentence, which was imposed after he pleaded guilty to
one count of possession of a firearm by a person previously convicted of a felony, in violation
of 18 U.S.C. § 922(g)(1). He contends that the district court erred in two ways when it
calculated his sentencing guidelines range. First, it applied a four-level enhancement for
possession of a firearm in connection with another felony offense pursuant to
§ 2K2.1(b)(6)(B) of the United States Sentencing Guidelines. Second, it applied a two-level
enhancement for reckless endangerment during flight pursuant to § 3C1.2 of the Sentencing
Guidelines. For the reasons that follow, we reverse and remand for resentencing.
I.
On June 5, 2020, police officers responded to a call in Charlotte, North Carolina, after
the caller told them that Henderson was armed. J.A. 121. When officers arrived, they saw
that Henderson was armed with a rifle and observed him shove a woman to the ground and
point the firearm directly at her. Id. When law enforcement confronted Henderson, he fled.
Id. Henderson was subsequently located hiding behind a shed a short distance away. Id.
Officers later located a rifle hidden under a vehicle parked on the roadway. Id. At the time,
Henderson was subject to an active Domestic Violence Protection Order (“DVPO”). Id.
On August 18, 2020, Henderson was charged in the United States District Court for the
Western District of North Carolina with one count of being a felon in possession of a firearm.
J.A. 24–36. He pleaded guilty to the charge without a written plea agreement. Id. During his
guilty plea hearing, Henderson acknowledged that he had read and agreed with a factual basis
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document filed by the government. The document outlined how Henderson’s conduct satisfied
the elements of § 922(g)(1), establishing the basis for his guilty plea. J.A. 32.
In preparation for Henderson’s sentencing, a probation officer prepared a draft
Presentence Investigation Report (“PSR”). J.A. 85. The draft PSR calculated Henderson’s
total offense level to be seventeen, based on the following factors: (1) a base level of
fourteen; (2) a Specific Offense Characteristics adjustment for possession of a firearm in
connection with another felony offense, which increased his offense level by four points;
(3) an adjustment for reckless endangerment during flight, which increased his offense
level by two points; and (4) adjustments for acceptance of responsibility, which collectively
decreased his offense level by three points. J.A. 89–90. The draft PSR also assigned
Henderson a criminal history category of IV. J.A. 101.
The PSR’s Special Offense Characteristics adjustment was based on Henderson
“us[ing] or possess[ing] any firearm or ammunition in connection with another felony
offense.” J.A. 90. The other felony cited in connection with this adjustment was
possession of a firearm by a person who is subject to a Domestic Violence Protective Order
(“DVPO”), in violation of § 922(g)(8). Id. (citing U.S.S.G. § 2K2.1(b)(6)(B)). The
second adjustment, reckless endangerment during flight, was based on “[t]he defendant
recklessly creat[ing] a substantial risk of death or serious bodily injury to another person
in the course of fleeing from a law enforcement officer.” Id. (quoting U.S.S.G. § 3C1.2).
Henderson objected to the Special Offense Characteristics enhancement and the
reckless-endangerment enhancement. Id. In response to Henderson’s objections, the
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probation officer filed an addendum to the final PSR, but the addendum did not make any
changes to the sentencing guideline calculations. J.A. 149–50.
At sentencing, both parties stipulated that there was a basis for Henderson’s guilty
plea and that the court could refer to the “Offense Conduct” outlined in the PSR to establish
the basis for his guilty plea. J.A. 43. Henderson again raised objections to each of the
sentencing enhancements included in the PSR. J.A. 44.
The court overruled Henderson’s objections. J.A. 50. In imposing the sentence, the
district court varied upward and sentenced Henderson to a term of sixty months. Id.
II.
In reviewing whether a sentencing court properly applied the Guidelines, this Court
“reviews the court’s factual findings for clear error and its legal conclusions de novo.” United
States v. Allen, 446 F.3d 552, 527 (4th Cir. 2006). We therefore review the applicability of
the two sentencing enhancements to which Henderson objected de novo.1 The government
bears the burden of establishing the applicability of a sentencing enhancement by the
preponderance of the evidence. United States v. Garnett, 243 F.3d. 824, 828 (4th Cir. 2001).
1
On appeal, Henderson’s arguments against the two sentencing enhancements are
different from the arguments he made below, but his objections to the enhancements during
the sentencing were sufficient to preserve his challenge. See United States v. Robinson,
744 F.3d 293, 300 n.6 (4th Cir. 2014) (noting that even though a defendant did not make
the same “precise argument before the district court, [the defendant] did challenge his
criminal history score, and thus preserved his claim”).
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III.
A.
The district court applied a four-level enhancement pursuant to Sentencing Guideline
§ 2K2.1(b)(6)(B) because, according to the PSR, Henderson possessed the firearm “in
connection with” another felony: possessing a firearm while under a domestic violence
protective order. J.A. 123. In other words, the court added a four-level enhancement because
Henderson fell into an additional class of prohibited persons under § 922(g), and therefore
possessed a firearm “in connection with another felony offense.” Id.
This Court has previously rejected the notion that a person can be punished more
severely for simultaneously violating multiple provisions of § 922(g) with the same act of
possession. In United States v. Dunford, we held that “a person who is a member of more
than one disqualifying class only violates § 922(g) once for each act of ‘possession.’” 148
F.3d 385, 389 (4th Cir. 1998). In Dunford, the defendant was indicted on fourteen counts
of firearms offenses: seven for violation of 18 U.S.C. § 922(g)(1), and seven for violation
of 18 U.S.C. § 922(g)(3). Id. at 387. All of the counts were based on a single act of
possession of six firearms and ammunition. Id. We explained, “while a person must be a
member of at least one of the nine classes prohibited from possessing guns under § 922(g),
a person who is disqualified because of membership in multiple classes does not thereby
commit separate and multiple offenses.” Id. at 389. 2
2
We also held that the defendant’s possession of the six firearms and ammunition,
all of which were seized at the same time from his house, supported only one conviction
under § 922(g). Dunford, 148 F.3d. at 389 (citing United States v. Mullins, 698 F.2d 686(Continued)
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Although Dunford only explicitly addressed double counting in the context of a
multiple-count indictment, its principles also apply to a sentencing enhancement for
“prohibited persons” under § 922(g). We held in United States v. Blount that the purpose of a
§ 2K2.1 enhancement is to ensure that the severity of a defendant’s punishment increases if,
“in addition to committing a firearms offense within the scope of § 2K2.1, he commits a
separate felony offense that is rendered more dangerous by the presence of a firearm.” 337
F.3d 404, 406 (4th Cir. 2003). In addition, Application Note 14(A) of the Sentencing
guidelines defines “another felony offense” as an offense “other than the explosive or firearms
possession or trafficking offense.” U.S.S.G. § 2K2.1 cmt. N.14(C) (emphasis added).
Under Dunford, a person who is both a felon and subject to a domestic violence
protection order, like Henderson, does not violate the statute more than once or commit
separate offenses for a single instance of possession. Dunford, 148 F.3d at 389. Dunford,
combined with Blount’s holding about the purpose of § 2K2.1, means that if there is no
separate felony offense, the enhancement is not appropriate. Blount, 337 F.3d at 406. To
allow the government to increase the severity of a defendant’s punishment for violation of
another subsection of § 922(g) for a single act of possession through a sentencing
enhancement would be nothing more than a convenient method to sidestep Dunford. 3
(4th Cir.1983)). We therefore affirmed only one of the defendant’s § 922(g) convictions
and remanded for resentencing. Id. at 389.
3
The government cites United States v. Shorter for the proposition that two
convictions for violations of separate sections of 18 U.S.C. § 922(g) based on one act of
possession would be permissible, so long as a defendant did not receive concurrent or
consecutive sentences for those two convictions. 328 F.3d 167 (4th Cir. 2003). However,
(Continued)
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Henderson was not charged with a violation of 18 U.S.C. § 922(g)(8). Under this
Court’s precedent, he could not be convicted and sentenced for violations of both 18 U.S.C.
§ 922(g)(1) and 18 U.S.C. § 922(g)(8) that stem from a single instance of possession. Dunford,
148 F.3d at 389. He therefore cannot be subject to a sentencing enhancement based solely on
the fact that he falls into more than one class of prohibited persons under 18 U.S.C. § 922(g).
B.
The district court also applied a two-level enhancement, pursuant to Sentencing
Guideline § 3C1.2 for reckless endangerment during flight because, according to the PSR,
Henderson “recklessly created a substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.” J.A. 123. The district
court said that “running away from law enforcement with a loaded rife is reckless in and
Shorter affirms our holding in Dunford, finding that a defendant who was charged with
violations of § 922(g)(1) and § 922(g)(3) for the same act of possession only committed one
offense. Id. at 173. In Shorter, the two § 922(g) counts were merged for sentencing
purposes, and we held that the defendant stood “convicted of only one 18 U.S.C.A. § 922(g)
offense.” Id. In other words, the sentence imposed in Shorter was permissible under
Dunford because it amounted to only one punishment for one act of possession. Not so in
the case of Henderson, who received a greater punishment on account of being a prohibited
person under two subsections of § 922(g), despite there being only one act of possession.
The government also argues that under Witte v. United States, enhancing a sentence
for one offense based on another offense does not violate double jeopardy principles. 515
U.S. 389 (1995). It is true that the Supreme Court held in Witte that the Sentencing
Guidelines do not violate the Double Jeopardy Clause by permitting a more serious
sentence for a particular offense if that offense was “accompanied by or preceded by
additional criminal activity.” Id. at 403–404. However, here, there is no additional
criminal conduct upon which to base the enhancement, because there is no “separate felony
offense” upon which to base the enhancement. Dunford, 148 F.3d at 389.
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of itself,” and that it disagreed with Henderson’s argument that hiding a gun was safer than
running with it. J.A. 50.
Henderson argues that his conduct does not meet the definition of recklessness. He
cites United States v. Shivers for the proposition that flight with a loaded firearm, without
more, is not sufficient to warrant application of the two-level enhancement. See United
States v. Shivers, 56 F.4th 320, 326 (4th Cir. 2022). We agree. The district court erred in
concluding that Henderson “recklessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a law enforcement officer.” J.A. 123.
In Shivers, decided after Henderson was sentenced, we stated that “we have never
held in a published opinion that armed flight alone is enough to justify the application of
the § 3C1.2 enhancement.” 56 F.4th at 326. Rather, to find that application of § 3C1.2 is
warranted, we require “flight-plus-something more.” United States v. Dennings, 922 F.3d
232, 237 (4th Cir. 2019).
Several of our cases demonstrate what that “something more” is. For example, engaging
in a struggle with police officers is sufficient. See United States v. Williams, 278 F. App’x 279,
280 (4th Cir. 2008). Repeatedly attempting to remove an item from a pocket during armed
flight or apprehension is, too. See United States v. Washington, 80 F. App’x 850, 850–51 (4th
Cir. 2003). And so is running through a crowded parking lot and discarding a firearm in a
heavily trafficked area. United States v. Grate, 81 F. App’x 451, 453 (4th Cir. 2003).
Here, however, we do not have sufficient facts to warrant the application of § 3C1.2.
At his plea hearing and at sentencing, Henderson stipulated only to the factual accuracy of
two documents: the factual basis document filed by the government, which describes the
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offense only in terms of the elements of 18 U.S.C. § 922(g)(1), and the offense conduct
portion of the PSR, which includes that same limited description. J.A. 32, 43.
The government presented no evidence that could demonstrate that Henderson acted
recklessly or that he created a substantial risk of death or serious bodily injury. Not only
is there no evidence as to who apprehended Henderson, but there is no evidence
demonstrating how the firearm got to the vehicle, the conditions surrounding that
discovery, or distances between the area of the offense, the shed, and the vehicle.
On these limited facts, there is no evidence to suggest, as the government argues,
that Henderson’s flight created a risk of accidental discharge of the weapon or a risk to the
community had the firearm not been found. All we can reasonably conclude is that
Henderson fled, and, at some point, someone found both Henderson and the firearm. This
is an insufficient basis on which to apply the § 3C1.2 enhancement.
IV.
The district court erred in applying a four-level sentencing enhancement pursuant
to § 2K2.1(b)(6)(B) and a two-level reckless endangerment enhancement pursuant to
§ 3C1.2. We therefore reverse and remand for resentencing consistent with this opinion.
REVERSED AND REMANDED
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