United States v. Marcus Reid ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3744
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Marcus Reid, *
* [UNPUBLISHED]
Defendant - Appellant. *
___________
Submitted: April 14, 2009
Filed: April 22, 2009
___________
Before MURPHY, HANSEN, and BYE, Circuit Judges.
___________
PER CURIAM.
Marcus Reid pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g) and 924(a)(2). At sentencing, the district court
applied a four-level enhancement for using or possessing a firearm in connection with
another felony offense, U. S. Sentencing Guidelines (U.S.S.G.) § 2K2.1(b)(6), and a
two-level enhancement for recklessly creating a substantial risk of death or serious
bodily injury to another in the course of fleeing from law enforcement, U.S.S.G.
§ 3C1.2. On appeal, Reid argues application of both Guidelines provisions constitutes
impermissible double counting. We affirm.1
In the afternoon on December 12, 2007, Reid carjacked a vehicle and put a
handgun to the head of the vehicle's occupant before releasing him. Several hours
later, on the evening of the same day, police observed a vehicle driving erratically and
attempted to effect a stop. The driver, Reid, accelerated and police gave chase. In the
course of the pursuit, Reid drove the wrong way on numerous one-way streets, drove
without headlights, and drove the wrong way on a busy highway at speeds exceeding
80 miles per hour. While on the highway, Reid nearly struck police officers who were
attempting to stop the vehicle. Reid eventually stopped and was taken into custody.
A search of the vehicle uncovered a loaded .357 magnum revolver.
The presentence investigation report recommended a four-level sentencing
enhancement for possessing a firearm in connection with another felony offense,
§ 2K2.1(b)(6), and a two-level enhancement for recklessly creating a substantial risk
of death or serious bodily injury in the course of fleeing from police, § 3C1.2. The
district court adopted the recommended enhancements, concluding the four-level
enhancement was warranted because Reid held a handgun to the head of the vehicle
occupant during the carjacking. It further concluded the two-level enhancement was
warranted because, hours later during the police pursuit Reid's reckless attempts to
evade capture placed police and the public at substantial risk. On appeal, Reid argues
the application of the enhancements together constitutes impermissible double
counting.
We review the imposition of a sentence for an abuse of discretion. Gall v.
United States, 552 U.S. __, 128 S. Ct. 586, 591 (2007). In so doing, we review "both
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
-2-
the procedural soundness of the district court's decision and the substantive
reasonableness of the sentence imposed." United States v. Merrival, 521 F.3d 889,
890 (8th Cir. 2008). A district court commits procedural error by failing to calculate
or improperly calculating the Guidelines range, treating the Guidelines as mandatory,
failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence. Gall, 128
S. Ct. at 597. We review the district court's findings of fact for clear error, United
States v. Hunt, 171 F.3d 1192, 1195-96 (8th Cir. 1999), and its interpretation and
application of the Guidelines de novo, United States v. Searcy, 233 F.3d 1096, 1099
(8th Cir. 2000).
The district court did not commit procedural error by applying both
§ 2K2.1(b)(6) and § 3C1.2. "Double counting occurs when 'one part of the Guidelines
is applied to increase a defendant's punishment on account of a kind of harm that has
already been fully accounted for by application of another part of the Guidelines.'"
United States v. Pena, 339 F.3d 715, 719 (8th Cir. 2003) (quoting United States v.
Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997)) (internal quotation marks omitted).
A district court does not double count by enhancing an offense level for two or more
reasons when those reasons "address conceptually separate sentencing notions."
United States v. Phillips, 506 F.3d 685, 688 (8th Cir. 2007). The district court in this
instance applied the enhancements for two distinct sentencing notions. The first
addressed Reid's conduct in putting a handgun to the head of the vehicle's occupant
in the course of committing the carjacking. The second, based upon conduct
occurring several hours later, addressed the significant risk of harm created by Reid's
flight from police.
The judgment of the district court is affirmed.
______________________________
-3-