US v. Clifton Johnson, No. 11-4386 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4386 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CLIFTON EARL JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:10-cr-00234-D-1) Submitted: November 30, 2011 Decided: December 14, 2011 Before WILKINSON, KEENAN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, John H. Bennett, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Clifton Earl Johnson appeals his 108-month following his guilty plea to armed bank robbery. sentence He contends that the district court erred by enhancing his sentence by six offense levels for creating a substantial risk of bodily harm to a law enforcement officer, United States Sentencing Commission Guidelines Manual § 3A2.1 (2010), and by also imposing a twolevel enhancement for reckless endangerment during flight. We affirm. Johnson first asserts that the district court erred by applying the six-level enforcement officer. enhancement for assault on a law Johnson does not contest that he assaulted a person by pointing his firearm at him during his flight from the bank, but he challenges the enhancement on the ground that there was no evidence that he knew or had reason to believe that the person at whom he pointed his gun was a police officer. The six-level enhancement is applied if, in a manner creating a substantial risk of serious bodily injury, the defendant . . . knowingly or having reasonable cause to believe that a person was a law enforcement officer, assaulted such Johnson also pled guilty to using or carrying a firearm during and in relation to a crime of violence, and was sentenced to a consecutive sentence of 84 months. He does not challenge this sentence on appeal. 2 officer during the course of the offense or immediate flight therefrom. USSG § 3A1.2(c)(1). The district court reviewed a statement Johnson made upon his arrest, in which Johnson stated that, after he exited the bank, he saw an unmarked police car coming towards [him]. The officer jumped out of the car and fired two shots at [him]. [his] side. [He] had the gun in [his] hand at [He] asked him why he was shooting at [him]. officer told [him] to get down. [He] told [the officer] that [he] had a bad knee and could not. shots. The The officer fired three more [He] brought the gun up. The court made the factual determination that, based on this believe statement, that the Johnson person enforcement officer. knew who was or in had reasonable the vehicle cause was a to law The court found that the enhancement was appropriately applied. We find no clear error in the district court s factual finding that Johnson, at the time of the conduct, knew or had reason to believe that the person at whom he pointed his weapon United States v. Hampton, 628 was a law enforcement officer. F.3d 654, 659 (4th Cir. 2010); see United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). imposition of § 3A1.2(c)(1). the six-level sentence We therefore uphold the enhancement See Hampton, 628 F.3d at 659. 3 under USSG Johnson next contends that the district court erred by applying during the two-level flight, in enhancement addition to for six the reckless levels assault on the law enforcement officer. endangerment added for the Because Johnson did not raise this issue in the district court, we review the claim for plain error. F.3d 572, Fed. R. Crim. P. 52(b); United States v. Lynn, 592 580 (4th Cir. 2010). To establish plain error, Johnson must show that error occurred, the error was plain, and the error affected his substantial rights. United States v. Moussaoui, 591 F.3d 263, 295 (4th Cir. 2010). Even if Johnson establishes court will [it] seriously correct that the affect[s] there was forfeited the plain error fairness, judicial proceedings. . error, . . integrity the unless or public reputation not of Id. (quoting United States v. Olano, 507 U.S. 725, 731-32 (1993)). Section 3C1.2 provides for a two-level enhancement if the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. USSG § 3C1.2. Johnson contends that the application of both enhancements is contrary to the Guidelines and this court s precedent. He cites to Application Note 1 of § 3C1.2, which provides that the reckless endangerment enhancement should not apply when another adjustment in Chapter Three, results in an equivalent or greater 4 increase in conduct. offense level solely on the of the same USSG § 3C1.2, comment. (n.1); see United States v. Sloley, 19 F.3d 149, 154 (4th Cir. 1994). has basis held that both the § 3A1.2 However, this court enhancement and the § 3C1.2 enhancement may be applied if each is triggered by separate United States v. Harrison, 272 F.3d 220, 223 (4th conduct. Cir. 2001). The district court found that both enhancements were appropriate. Johnson s conduct of pointing his firearm at the police officer constituted an assault on the law enforcement officer, justifying the six-level enhancement See N.C. Gen. Stat. § 14.34 (2009). under § 3A1.2. His failure to obey the officer s repeated commands to drop his weapon resulted in the officer firing his weapon at least four times. to comply with the officer s directive, Thus, by failing Johnson committed separate conduct that created a substantial risk of death or serious bodily injury to the officer or to any other person in the area of the bank. The district court did not clearly err in determining that the conduct that amounted to an assault was separate and officer firing additional distinct his enhancement from the conduct that resulted weapon, which thereby under § 3C1.2. See in justified United States the the v. Alicea, 205 F.3d 480, 486 (1st Cir. 2000) (holding that high speed chase and shots fired at 5 pursuing officers separately endangered police and public, justifying both enhancements); United States v. Matos-Rodriguez, 188 F.3d 1300, 1312 (11th Cir. 1999). Having discovered no error, much less plain error in the district court s application of both the § 3A2.1 enhancement and the § 3C1.2 enhancement, we affirm the 108-month sentence imposed dispense on Johnson with oral for the armed argument bank because robbery the offense. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6
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