United States v. Wesley Hampton Linker

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12864
Non-Argument Calendar
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D.C. Docket No. 2:11-cr-00026-LGW-JEG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WESLEY HAMPTON LINKER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(February 27, 2013)
Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Wesley Linker appeals his 65-month sentence after pleading guilty to one
count of possession of a firearm and ammunition by a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Linker raises two arguments.
First, he argues that that the district court erred in applying a four-level
enhancement, under U.S.S.G. § 2K2.1(b)(6)(B), for illegally possessing a firearm
in connection with another felony offense. He contends that the court wrongfully
applied the enhancement, arguing that the evidence was insufficient to support the
court’s finding that he possessed the firearm while committing the separate felony
offense of obstruction of a law enforcement officer with violence. Second, Linker
argues that his 65-month sentence is substantively unreasonable and that the
district court should have varied downward from the guideline range, as his
predicate crime of breaking and entering was of his parents’ unoccupied home and,
therefore, did not present a risk of violence.
I.
The record shows that, at sentencing, the government called Officer Mark
Drury of the Darien Police Department to testify regarding the events immediately
preceding Linker’s arrest. Officer Drury testified that on May 3, 2011, he stopped
Linker for speeding on Interstate 95, and that his police car had a forward-mounted
video camera that recorded the stop. Officer Drury, narrating the video, testified
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that he patted down Linker to make sure that he was not carrying any weapons and
then obtained consent from Linker to search the vehicle. Drury then directed him
to remove two dogs that were in the car and became suspicious as Linker took a
long time to corral the dogs and was “fiddling around” with the front of his
waistband. Drury then testified that, after Linker removed the dogs, he was still
holding his waistband and then a gun, which Linker had held, dropped to the
ground. When Linker reached down to pick up the gun, and Linker fought with
Officer Luis Perez who was attempting to restrain him from behind, Drury tased
Linker, and Perez tackled him to the ground.
Linker testified that the firearm belonged to his girlfriend, Chelsea Smith,
who had been riding in the passenger seat and had not told him about the gun until
after they had been stopped. He claimed to have panicked and decided to hide the
gun in his pants. After the gun fell from his waistband, he saw Officer Perez step
on the gun, and then claims he reached down and pulled the magazine out of the
gun “to try to diffuse the situation.” He further testified that he did not pick up the
gun, and that the gun never actually left the ground. He also stated that he never
pushed Perez, and that he had no recollection of what happened immediately after
Officer Drury’s taser hit him.
After hearing all of the evidence, the district court stated that it found
Officer Drury’s testimony credible and consistent with the video. Accordingly, the
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court applied the four-level § 2K2.1(b)(6)(B) enhancement. The video, in relevant
part, shows Officers Drury and Perez questioning Linker while all three men are
standing in front of Drury’s patrol car. At one point, Linker, under direction from
Perez, stands up, turns around, and places his hands on the hood of the car. Perez
then motions towards Linker and begins to lift up the back of his shirt, as if he is
going to pat down Linker. Linker, who was already looking down at the hood of
the patrol car, suddenly looks to the ground, takes his hands off the car, and tries to
retrieve something from the ground. The ground is out of view from the camera.
As Linker is reaching towards the ground, Perez is standing behind him and
attempts to restrain him, for about three to four seconds, while Linker resists.
Perez then flings Linker backwards and tackles him to the ground. The video
shows that Officer Drury, who was out of view during the scuffle between Perez
and Linker, then shot Linker with a taser after he had been pulled back by Perez,
but before Perez had tackled Linker. At that point, the two officers forcibly
restrain Linker, who is lying on the ground and out of view of the camera.
We address each of Linker’s arguments in turn.
II.
Linker first argues that the district court erred in finding that he possessed
the firearm and that he obstructed the law enforcement officers with violence, both
necessary to support the sentencing enhancement for having “used or possessed
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any firearm or ammunition in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(6)(B).
We review a district court’s factual findings for clear error and its
application of the Sentencing Guidelines to those facts de novo. United States v.
Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir. 2006). A district court’s enhancement
of a defendant’s offense level is a finding of fact that we review for clear error.
United States v. Rendon, 354 F.3d 1320, 1331 (11th Cir. 2003). The government
bears the burden of establishing by a preponderance of the evidence any facts
necessary to support a sentence enhancement. United States v. Askew, 193 F.3d
1181, 1183 (11th Cir. 1999). As we explained in United States v. Lawrence, 47
F.3d 1559, 1566 (11th Cir. 1995), “[a]lthough not as rigorous as the reasonable
doubt or clear and convincing standards, the preponderance standard is not
toothless. It is the district court’s duty to ensure that the Government carries this
burden by presenting reliable and specific evidence.”
Section 2K2.1(b)(6)(B) of the Sentencing Guidelines states that a
defendant’s offense level is raised four levels if the defendant “used or possessed
any firearm or ammunition in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(6)(B). Under Georgia law, obstruction or hindrance of a law
enforcement officer is a felony where a defendant “offer[s] or do[es] violence to
the person of such officer.” O.C.G.A. § 16-10-24(b). We have held that the
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§ 2K2.1(b)(6)(B) enhancement is properly applied where the defendant assaulted
police officers while in possession of a firearm. United States v. Jackson, 276 F.3d
1231, 1235 (11th Cir. 2001) (applying the enhancement from the 2000 Guidelines
Manual which was previously found at § 2K2.1(b)(5)).1
First, the district court did not clearly err in finding credible Officer Drury’s
account of the events of Linker’s arrest. See United States v. Glinton, 154 F.3d
1245, 1259 (11th Cir. 1998) (explaining that we defer to the district court’s
assessment of the credibility of sentencing witnesses, and we accept the court’s
assessment unless it is clearly erroneous). Although the video of the arrest does
not conclusively show whether Linker attempted to grab, or was successful in
grabbing, the firearm, it does show that Linker, immediately after the gun fell from
his pants, reached towards the ground where the gun was located. Because of the
positioning of the camera, the gun, and to where exactly Linker was reaching, is
out of view. However, according to Drury’s testimony, Linker picked up the gun,
1
In Jackson, police officers stopped the defendant’s vehicle and advised him that there
was an outstanding warrant in his name and that he was under arrest. Id. at 1232-33. When the
officers attempted to handcuff the defendant, he resisted, and a struggle ensued. Id. at 1233.
Two of the arresting officers later testified that, during the struggle, the defendant repeatedly
attempted to reach into his left pant-pocket. Id. The defendant was eventually subdued and
handcuffed, and a subsequent search of his pocket revealed a firearm. Id. We affirmed the
district court’s application of the § 2K2.1(b)(6)(B) enhancement, holding the defendant’s
“attempted use [of the firearm] was sufficient to convert his possession of the firearm into
possession of the firearm ‘in connection with’ that crime [of assault of a police officer].” Id. at
1235. We stated that, “[h]ad [the defendant] successfully pulled the pistol from his pocket, there
is no doubt that the enhancement would apply.” Id. Accordingly, we held that the defendant’s
attempt to retrieve the firearm during his felonious assault of the officers was sufficient for the
enhancement to apply. Id.
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and the district court found Drury’s testimony credible while finding Linker’s
contrary account not credible. The video, inconclusive in itself, permits either
account: the government’s contention that Drury grabbed the gun, and Linker’s
contention that he attempted to eject the magazine from the gun to diffuse the
situation. Therefore, as two permissible views of the evidence existed, the court’s
determination that Drury’s account was credible was not clearly erroneous. See
United States v. Rodriguez De Varon, 175 F.3d 930, 945 (11th Cir. 1999) (en banc)
(explaining that under clear error review, when two permissible views of the
evidence exist, the factfinder’s choice between them will not be clearly erroneous).
Next, the district court did not err in applying the four-level enhancement
under U.S.S.G. § 2K2.1(b)(6)(B). Given the contents of Officer Drury’s testimony
and the video evidence, the court did not err in finding that Linker possessed the
firearm “in connection with” another felony offense. In Jackson, we held that the
§ 2K2.1(b)(6)(B) enhancement applied where the defendant, while resisting arrest,
attempted to retrieve a firearm from his pocket even though he never actually
retrieved it. See Jackson, 276 F.3d at 1235. Here, similarly, Linker concealed the
gun on his person during his encounter with the officers, and he attempted to reach
towards the gun when it fell from his pants. Linker’s firearm offense therefore was
“in connection with” another felony offense, as his possession of the firearm “had
the potential of facilitating” obstruction of an officer with violence. See § 2K2.1,
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comment. n. 14(A). The court therefore did not err in finding that the firearm
offense was in connection with another felony, as an offer of violence in resistance
of a law enforcement officer constitutes a felony offense under Georgia law. See
O.C.G.A. § 16-10-24(b).
Moreover, even if we were to assume, arguendo, that the district court did
err in applying the § 2K2.1(b)(6)(B) enhancement, such error was harmless. A
Sentencing Guidelines miscalculation is harmless if the district court would have
imposed the same sentence without the error. United States v. Barner, 572 F.3d
1239, 1247-48 (11th Cir. 2009). The court stated at sentencing that, “[r]egardless
of how the guidelines had come out, I think sixty-five months is the right sentence
based on the § 3553(a) factors.” The court cited Linker’s offense conduct and his
prior criminal history as support of its decision to impose the 65-month sentence.
III.
Linker also argues that his 65-month sentence is substantively unreasonable
and that the district court should have given him a downward variance, although he
acknowledges that the district court properly calculated the Guidelines. 2 Linker’s
argument for a downward variance relies on his claim that the burglary of his
parents’ home, which provided the predicate felony for determining his base
offense level, had no propensity for violence because it was unoccupied at the
2
We review the reasonableness of a sentence under a deferential abuse of discretion
standard of review. Gall v. United States, 552 U.S. 38, 41 (2007).
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time. However, the Supreme Court has rejected the contention that robberies of
unoccupied dwellings do not constitute crimes of violence. See James v. United
States, 550 U.S. 192, 203 (2007) (“The main risk of burglary arises not from the
simple physical act of wrongfully entering onto another’s property, but rather from
the possibility of a face-to-face confrontation between the burglar and a third
party—whether an occupant, a police officer, or a bystander—who comes to
investigate.”). We, too, have held that a burglary of a dwelling is a crime of
violence for purposes of the Sentencing Guidelines. United States v. Davis, 881
F.2d 973, 976 (11th Cir. 1989).
The sentencing factors set forth in 18 U.S.C. § 3553(a) also supported a
within-Guidelines sentence. The record shows that Linker possessed a firearm as a
convicted felon, attempted to hide it from the police, and tried to retrieve it once it
fell to the ground. The presentence investigation report also indicated that Linker
had numerous previous convictions for larceny, burglary, and breaking and
entering. The court, therefore, properly considered both the nature and
circumstances of the offense and Linker’s personal history and characteristics
under § 3553(a) when it imposed the within-Guidelines sentence.
AFFIRMED.
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