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United States v. Johnson ( 2001 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40923
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH JOHNSON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:99-CR-130-ALL
--------------------
May 17, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Kenneth Johnson appeals the 180-month sentence imposed by the
district court after he pleaded guilty to carjacking in violation
of
    18 U.S.C. § 2119
    .    Johnson argues that the district court erred
by (1) increasing his offense level because the victim suffered
serious   bodily   injury;   (2)   increasing    his   offense   level   for
obstruction of justice based on his escape from the back of the
police car; (3) increasing his offense level for use of a dangerous
weapon -- the car; and (4) denying him a reduction in offense level
for acceptance of responsibility.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-40923
-2-
We review the district court’s application of the Sentencing
Guidelines de novo.    United States v. Price,
    149 F.3d 352
    , 353 (5th
Cir. 1998).     The court’s findings of fact are reviewed for clear
error.
    Id.
    Section 2B1.3(b)(3), U.S.S.G., provides that with respect to
the offense of robbery, a defendant’s offense level is increased by
four   levels   if   the   victim   sustained   serious   bodily    injury.
“Serious bodily injury” means injury (1) involving extreme physical
pain or the protracted impairment of a bodily member, organ, or
mental faculty; or (2) requiring medical intervention such as
surgery, hospitalization, or physical rehabilitation.              § 1B1.1,
comment (n.1(j)).     As noted by the district court, the victim wore
a prosthesis for at least several months after the incident, and
she went back to the hospital two days after the incident to get
more pain medication.      The district court did not clearly err in
determining that the victim suffered serious bodily injury under
the guidelines.
The obstruction-of-justice adjustment applies to defendants
whose conduct includes the “escaping or attempting to escape from
custody before trial or sentencing.”          § 3C1.1(n.4(e)).     However,
conduct involving “avoiding or fleeing from arrest” does not
ordinarily warrant the adjustment.            § 3C1.1(n.5(d)).      “Flight
alone” may constitute obstruction of justice under § 3C1.1, “even
if such flight closely follows the defendant’s arrest.” See United
States v. Huerta,
    182 F.3d 361
    , 365 (5th Cir. 1999), cert. denied,
    528 U.S. 1191
     (2000).
No. 00-40923
-3-
After being arrested, handcuffed, and placed in the rear seat
of the police car, Johnson freed himself from the handcuffs, kicked
out the window of the police car, and escaped.             Thus, even assuming
that this court would consider whether a defendant’s acts were
“spontaneous and instinctive” rather than “calculated” in making an
obstruction determination, Johnson would not benefit from such
consideration.     Cf United States v. Draves,
    103 F.3d 1328
    , 1336-37
(7th Cir. 1997)(defendant was left unattended in the back of a
patrol car fled); United States v. Garcia,
    909 F.2d 389
    , 390-91
(9th Cir. 1990)(defendant “bolted” into a nearby field after a
traffic stop).      The district court did not err by assessing the
obstruction-of-justice enhancement.
With regard to Johnson’s contention that the Government failed
to prove that he used the vehicle as a weapon, or that he intended
to cause injury, § 2B3.1(b)(2)(D) provides that if a dangerous
weapon is “otherwise used” during the commission of a robbery, the
defendant’s      offense    level    is   increased   by    four   levels.     A
“dangerous weapon” means “an instrument capable of inflicting death
or serious bodily injury.”          § 1B1.1, comment (n.1(d)). “Otherwise
used”    means    conduct    “more    than   brandishing,     displaying,    or
possessing[.]”      § 1B1.1, comment (n.1(g)).
Factual findings made in a presentence report are presumed
reliable      absent       rebuttal       evidence    demonstrating      their
unreliability.      United States v. Franklin,
    148 F.3d 451
    , 460 (5th
Cir. 1998).       Other than his self-serving assertions otherwise,
Johnson presented no evidence to rebut the presentence report’s
account of how the victim’s foot was run over.                 Based on such
No. 00-40923
-4-
account, the district court did not err by enhancing Johnson’s
sentence under § 2B3.1(b)(2)(D).          Cf. United States v. Morris,
    131 F.3d 1136
    , 1139 (5th Cir. 1997).
Johnson also has not shown that the district court clearly
erred    by   denying   him   a    decrease   in    offense     level   based   on
acceptance of responsibility. Conduct resulting in an obstruction-
of-justice enhancement ordinarily indicates that the defendant has
not accepted responsibility for his criminal conduct.                   § 3E1.1,
comment(n.4).       Moreover, it is appropriate to consider whether a
defendant     has   voluntarily     withdrawn      from   criminal   conduct    in
determining      whether      he    qualifies      for    the    acceptance-of-
responsibility adjustment.          § 3E1.1, comment(n.1(b)); see United
States v. Rickett,
    89 F.3d 224
    , 227 (5th Cir. 1996)(pretrial drug
use).    The judgment of the district court is AFFIRMED.
AFFIRMED.