United States v. Maxon , 250 F. App'x 129 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0715n.06
Filed: October 3, 2007
No. 06-6183
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
ELRICO MAXON, WESTERN DISTRICT OF TENNESSEE
Defendant-Appellant.
/
BEFORE: MARTIN, GUY and CLAY, Circuit Judges.
CLAY, Circuit Judge. Defendant, Elrico Maxon, appeals from the judgment entered by the
district court sentencing him to 48 months imprisonment to be followed by 3 years of supervised
release for his conviction on one count of being a felon in possession of a firearm. Specifically,
Defendant challenges the district court’s application of a four-level enhancement pursuant to §
2K2.1(b)(5) of the United States Sentencing Guidelines. For the reasons that follow, we AFFIRM
the judgment of the district court.
BACKGROUND
No. 06-6183
On November 22, 2005, a federal grand jury indicted Defendant on one count of being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The conduct underlying the
indictment occurred on March 6, 2005. Defendant had recently acquired a new rifle and apparently
decided to test fire the weapon from the patio of his apartment. Officers on foot patrol in the
apartment complex heard the gunfire and observed muzzle flashes,1 responded to the point of origin,
and found Defendant there. Defendant admitted ownership of the weapon and confessed that he had
fired it. Defendant had a previous felony conviction and, accordingly, the officers arrested him for
possession of a firearm. Defendant pled guilty on June 9, 2006.
In anticipation of sentencing, the U.S. Probation Officer compiled a Pre-Sentence
Investigation Report (hereinafter “PSR”). Defendant’s PSR provided for a base offense level of 20
under the United States Sentencing Guidelines (hereinafter “the Guidelines”). The PSR applied a
four-level enhancement under § 2K2.1(b)(5) of the Guidelines for use of a firearm in connection with
another felony offense, thus yielding a total offense level of 24. An additional two-level
enhancement for obstruction of justice pursuant to § 3C1.1 increased Defendant’s offense level to
26. Defendant fell into Criminal History Category III and, accordingly, the PSR set forth an advisory
Guidelines range of 78 to 97 months.
On September 7, 2006, the district court conducted Defendant’s sentencing hearing and heard
testimony from government witnesses. The district judge rejected the two-level enhancement for
obstruction of justice under § 3C1.1, finding it unwarranted in this case. Additionally, he credited
1
A “muzzle flash” is a “flash of light caused by the reaction between oxygen and the burning
gases which escape form the barrel of a gun behind the bullet upon firing.” Oxford English
Dictionary (2003).
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No. 06-6183
Defendant with a three-level reduction for acceptance of responsibility. However, over Defendant’s
objections, the district judge did apply the four-level enhancement under § 2K2.1(b)(5). Thus, the
district judge calculated a total offense level of 21 which, when taken with a Criminal History
Category III, yielded an advisory Guidelines range of 46 to 57 months.
The district court expressly acknowledged the advisory nature of the Guidelines and,
subsequently, invited counsel to discuss the relevant § 3553(a) factors. The government stressed the
seriousness of Defendant’s conduct and his criminal history, which included convictions for
attempted second degree murder and aggravated assault. The government further argued that the
need to deter similar conduct and to protect the community rendered a sentence within the
Guidelines range appropriate. Defendant sought a downward departure on the basis of the “unusual”
circumstances supporting the § 2K2.1(b)(5) enhancement – specifically, that Defendant did not fire
the gun with bad intent but merely did “a real stupid thing.” (J.A. at 44-45.) Ultimately, the district
court sentenced Defendant to 48 months imprisonment and three years of supervised release.
Defendant timely appealed.
DISCUSSION
A. Standard of Review
Whether the district court properly concluded that Defendant used or possessed a firearm in
connection with another felony offense under § 2K2.1(b)(5) of the Guidelines constitutes a mixed
question of law and fact that this Court reviews de novo. United States v. Layne, 324 F.3d 464, 468
(6th Cir. 2003). This Court reviews the district court’s underlying factual findings for clear error.
Id.
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No. 06-6183
B. Guidelines Enhancement Pursuant to § 2K2.1(b)(5)
Defendant challenges the district court’s application of a four-level sentencing enhancement
pursuant to § 2K2.1(b)(5) of the Guidelines. Before the district court below, Defendant filed a
position paper in response to the PSR, raising an objection to the four-level enhancement pursuant
to § 2K2.1(b)(5). Defendant admitted to discharging the weapon, but claimed that he “was careful
to aim it in the sky, not in the direction of any buildings, and certainly not in the direction of any
person.” (J.A. at 12.) Defendant further noted that the Tennessee state court charged him with
misdemeanor reckless endangerment. At Defendant’s sentencing hearing, he again objected to the
§ 2K2.1(b)(5) enhancement, asserting many of the arguments articulated in his position paper.
At the sentencing hearing, the prosecution called Officer Billy Gray, the arresting officer at
the scene. Officer Gray testified that he and two other officers were patrolling the Pepper Tree
Apartments on March 6, 2005 around 9:00 p.m. Gray recalled that, aside from the officers, others
were present outside the apartment complex that night “walking to and from.” (J.A. at 38.) While
on patrol, the officers heard several gunshots, and through the darkness outside, they observed
muzzle flashes coming from a unit approximately 30 feet away. Officer Gray indicated that they
were “all under the impression that the gun was shot in [their] direction” and that they heard the
bullets go over their heads before hitting a wall. (Id. at 31-32.) He surmised that the gun was
pointed at an angle when fired and not straight up in the air. The officers identified a bottom-floor
apartment as the origin of the shots, and they approached to investigate. Gray stated that they found
three or four men standing on the porch when they arrived and identified a .22-caliber rifle against
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No. 06-6183
the porch wall. When asked by the officers, Defendant admitted ownership of the rifle and that he
had fired it. The officers subsequently arrested Defendant for possession of the firearm.
Following Officer Gray’s testimony, the district court framed the issue as follows:
The question is, is it the type of reckless conduct that can result in injury and reckless
endangerment. Nobody is saying that defendant – and the officer is not saying that the
defendant was trying to shoot them or trying to shoot anybody. If he was trying to shoot
somebody and there had been somebody fleeing, he was in some type of confrontation, the
charge wouldn’t have been reckless endangerment.
. . . The problem is that people get hurt from this type of activity. It is extremely thoughtless.
It is dangerous just in and of itself, and that’s the problem. . . .
(J.A. at 37-39.) At the close of the hearing, just before imposing a sentence, the district judge again
referenced the enhancement:
[Defense counsel has] convinced me that there was no malintent in firing the weapon,
but he has also convinced me that it was a really bad idea, which it was, and I am
convinced that someone could have been hurt, and that is reckless endangerment.
(Id. at 47.) Thus, the court concluded that the four-level enhancement applied in Defendant’s case.
Section 2K2.1(b)(5) of the Guidelines provides for a four-level increase to a defendant’s base
offense level “[i]f the defendant used or possessed any firearm or ammunition in connection with
another felony offense.” U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2005). “Felony
offense” is defined as “any offense (federal, state, or local) punishable by imprisonment for a term
exceeding one year, whether or not a criminal charge was brought, or a conviction obtained.” Id.
cmt. n.4. Moreover, “[t]he burden is on the government to prove, by a preponderance of the
evidence, that a particular sentencing enhancement applies.” United States v. Dupree, 323 F.3d 480,
491 (6th Cir. 2003).
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No. 06-6183
In Tennessee, reckless endangerment with a deadly weapon constitutes a Class E felony
punishable for a term of imprisonment exceeding one year. TENN . CODE ANN . § 39-13-103; id. at
§ 40-35-111(b)(5). A defendant commits reckless endangerment with a deadly weapon if he
“recklessly engages in conduct that places or may place another person in imminent danger of death
or serious bodily injury.” TENN . CODE ANN . § 39-13-103. Under the Tennessee code,
“Reckless” refers to a person who acts recklessly with respect to circumstances
surrounding the conduct or the result of the conduct when the person is aware of but
consciously disregards a substantial and unjustifiable risk that the circumstances exist
or the result will occur.
Id. at § 39-11-302(c). “Imminent danger” occurs when a person is “placed in a reasonable
probability of danger as opposed to a mere possibility of danger.” State v. Payne, 7 S.W.3d 25, 28
(Tenn. 1999) (citing State v. Fox, 947 S.W.2d 865, 866 (Tenn. Ct. App. 1996)). Where the victim
is the “public at large,” as permitted under Tennessee law, the government must show that at least
one person was present within the “zone of danger.” Id. The “zone of danger” consists of “that area
in which a reasonable probability exists that the defendant’s conduct would place others in imminent
danger of death or serious bodily injury if others were present in that zone or area.” Id.
On appeal, Defendant argues that there was insufficient evidence to support a finding that
his conduct placed others in imminent danger. Defendant’s argument seems to hinge on the fact that
Defendant fired the gun into the air, not in the direction of anyone in the surrounding area. Here,
Defendant relies on State v. Baldwin, No. 01C01-9612-CR-00530, 1998 WL 426199 (Tenn. Ct. App.
July 29, 1998) (unpublished). In Baldwin, the defendant shot a bartender in a small and narrow
restaurant. Id. at *1, 4. On the theory that “the bullet could have ricocheted off one of the metal
appliances” to strike a customer seated directly behind the defendant, the trial court convicted the
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No. 06-6183
defendant of felony reckless endangerment of the customer. Id. at *4. The appeals court observed
that “discharging a weapon under circumstances ‘where a stray bullet might possibly strike another
person’ is insufficient to support a conviction for reckless endangerment.” Id. There, the conviction
was based on “mere speculation” that the customer could have been hit, and the evidence was
therefore insufficient to prove the elements beyond a reasonable doubt. Id.
In our view, Baldwin does not control the instant case. First, as this Court previously
observed in a factually similar case, “the applicable burden of proof in a criminal prosecution
(beyond a reasonable doubt) is . . . different from the standard of proof required for the application
of a sentencing enhancement under the Guidelines (preponderance of the evidence – so long as the
sentence does not exceed the statutory maximum).” United States v. Lester, No. 06-5043, 2007 WL
1804350, at *5 (6th Cir. June 25, 2007) (unpublished). Second, it is factually inapposite. The
defendant in Baldwin could only strike one person behind the bar, and endangerment of others
necessarily would require the bullet to ricochet and continue on with enough force to cause harm.
In the instant case, Defendant shot his rifle in the dark of night from his patio in a residential
apartment complex in the general direction of another part of the complex. Additionally, Officer
Gray testified that he heard bullets over his head and that besides the officers, other individuals were
present outside the complex. The instant record supports more than “mere speculation” that the
bullet could strike another person. Indeed, the officers and others were “subjected to a much greater
risk of harm than the customer in Baldwin.” Lester, 2007 WL 1804350, at *5.
Another Tennessee case, State v. Fox, 947 S.W.2d 865 (Tenn. 1996), is factually closer to
the case at bar. In Fox, the defendant fired a pistol into the air or into a tree. Id. at 865. However,
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No. 06-6183
the Tennessee appeals court found insufficient evidence to sustain his conviction for reckless
endangerment because there “was no testimony that anyone was either in the tree being fired upon
or outside the apartment building in the immediate vicinity of the [defendant].” Id. Yet, the instant
case is readily distinguishable. Again, Defendant fired the gun into the air, or on a diagonal
trajectory, in the general direction of the officers. The officers were standing outside on the patio
of another unit approximately 30 feet away, and Officer Gray heard a bullet fly over the officers’
heads. Even if Defendant fired the bullet into the air, basic principles of gravity dictate that what
comes up generally must come down. By shooting the gun into the air while others stood in the
“immediate vicinity,” Defendant placed those individuals in a “reasonable probability of danger.”
See Payne, 7 S.W.3d at 28.
In the instant case, we find that the government met its burden, and accordingly, that the
district court did not err in applying the enhancement under § 2K2.1(b)(5) of the Guidelines. The
record indicates that Defendant fired a gun into the air, or in a diagonal trajectory, in a residential
apartment complex in the dark. The record further indicates that the officers heard bullets go over
their heads before hitting a wall. Not only were the officers outside the complex, but other people
were outside as well, “walking to and from.” (J.A. at 28.) Defendant’s conduct placed the officers
and others outside “in a reasonable probability of danger” when he fired the rifle into the air in an
area where others, including the arresting officer, were present. See Payne, 7 S.W.3d at 28. As the
district judge observed, a .22-caliber bullet that strikes a person at a range of 30 feet “could do some
damage.” (J.A. at 39.) Obviously, serious bodily injury, if not death, could follow.
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No. 06-6183
Consequently, the district court did not err in applying § 2K2.1(b)(5) of the Guidelines to
enhance Defendant’s sentence by four levels.
CONCLUSION
For the reasons set forth above, this Court AFFIRMS the district court judgment.
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