United States v. Henderson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4236
ERIC C. HENDERSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-01-34-MU)
Submitted: September 25, 2002
Decided: October 9, 2002
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Scott Gsell, LAW OFFICE OF SCOTT GSELL, Charlotte, North
Carolina, for Appellant. Robert J. Conrad, Jr., United States Attorney,
Robert J. Gleason, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HENDERSON
OPINION
PER CURIAM:
Eric C. Henderson pled guilty to being a felon in possession of a
firearm, 18 U.S.C. § 922(g)(1) (2000), and was sentenced to 100
months imprisonment. He contends on appeal that the district court
erred in giving him a seven-level enhancement under U.S. Sentencing
Guidelines Manual § 2B3.1(b)(2)(A) (2001) for discharge of a
weapon. We affirm.
Henderson and two friends attempted an invasion of a home occu-
pied by a woman and her boyfriend. Henderson was carrying a shot-
gun. When the woman answered the door, Henderson pushed her
aside and entered. She slammed the door before the others could enter
and her boyfriend confronted Henderson and took the shotgun away
from him. During the struggle, the shotgun discharged and Henderson
was wounded in the arm and leg. Although it was not clear who
caused the discharge of the gun, the district court determined that a
plain reading of the guideline required the enhancement.
We review de novo the sentencing court’s interpretation of a guide-
line. United States v. Nale, 101 F.3d 1000, 1003 (4th Cir. 1996). Hen-
derson relies on United States v. Gordon, 64 F.3d 281, 284 (7th Cir.
1995) (holding that enhancement under § 2B3.1(b)(2)(A) does not
apply when non-participant in offense discharges firearm because
defendant cannot be said to have induced or willfully caused the dis-
charge and that "reasonable foreseeability" applies only to conduct of
co-conspirators, not to other persons).
However, other circuits have not followed Gordon without qualifi-
cation. See United States v. Wright, 215 F.3d 1020, 1030 (9th Cir.),
cert. denied, 531 U.S. 969 (2000) (enhancement affirmed where rob-
ber accidentally shot himself in the leg because § 1B1.3 makes defen-
dant responsible for all his own actions); United States v. Mitchell,
146 F.3d 1338, 1345-46 (11th Cir. 1998) (enhancement affirmed
where co-defendant fired gun during robbery); United States v. Tri-
plett, 104 F.3d 1074, 1083 (8th Cir. 1997) (same). Mitchell held that
the mere act of planning a robbery to be carried out with guns "made
UNITED STATES v. HENDERSON 3
the likelihood of a gun discharging objectively reasonably foresee-
able." 146 F.3d at 1346.
Moreover, in United States v. Williams, 51 F.3d 1004, 1011 (11th
Cir. 1995), the Eleventh Circuit held that the defendant, by attempting
an armed carjacking, induced the intended victim to fire his gun in
self defense and that the victim’s action was thus attributable to the
defendant under § 1B1.3(a)(1)(A), which provides that relevant con-
duct includes "all acts . . . committed . . . induced, procured, or will-
fully caused by the defendant." Similarly, in United States v. Roberts,
203 F.3d 867 (5th Cir. 2000), the Fifth Circuit noted the divergence
between Gordon and Williams, then held that the plain language of
§ 1B1.3 permitted the enhancement where the defendant violently
resisted arrest and thus "unquestionably induced and willfully caused
[the deputy] to fire his handgun." 203 F.3d at 870.
The weight of these authorities indicates that, even if the firearm
in this case was not discharged by Henderson, the district court did
not err in finding that the enhancement for discharge of a firearm
applies because Henderson induced the struggle during which the
shotgun was discharged, or at the very least, could reasonably foresee
that the gun might be discharged during the home invasion.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED