UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4525
WILLIAM T. ANDERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-99-1105)
Submitted: March 30, 2001
Decided: May 2, 2001
Before LUTTIG, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Robert J. Tinsley, Sr., Greenwood, South Carolina, for Appellant. J.
Rene Josey, United States Attorney, Isaac Johnson, Jr., Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. ANDERSON
OPINION
PER CURIAM:
William T. Anderson pled guilty to possessing a firearm after he
was convicted of a felony, in violation of 18 U.S.C.A. § 922(g)(1)
(West 2000). He appeals the seventy-month sentence imposed by the
district court, arguing that the court erred in finding that he used the
gun in connection with another felony offense, U.S. Sentencing
Guidelines Manual § 2K2.1(b)(5) (1998), and by assigning him one
criminal history point for each of two prior domestic violence sen-
tences rather than excluding them under USSG § 4A1.2(c)(1). We
affirm.
On July 5, 1999, Anderson became involved in an altercation with
Greg Vaughn outside the mobile home where Anderson lived. At
some point, Vaughn was armed with a claw hammer.1 Anderson went
inside his trailer, retrieved a revolver, and came outside with it.
Anderson was charged in state court with pointing and presenting a
firearm in violation of S.C. Code Ann. § 16-23-410 (Law. Co-op.
Supp. 2000). Anderson subsequently pled guilty to the federal fire-
arms offense.
During his interview with the probation officer, Anderson admitted
pointing the gun at Vaughn, and the probation officer recommended
a four-level enhancement under USSG § 2K2.1(b)(5) on the ground
that Anderson had used or possessed the gun in connection with
another felony, i.e., pointing and presenting a firearm. During sen-
tencing, Anderson would only admit to presenting the gun. His attor-
ney argued that Anderson had acted in self-defense, but based on
Anderson’s admission that he presented the firearm, the district court
overruled his objection to the enhancement.
Before an enhancement under § 2K2.1(b)(5) is applied, the govern-
ment must prove by a preponderance of the evidence facts that estab-
lish that the defendant used a firearm and that such use was in
connection with another felony offense. The district court’s findings
1
A witness reported that Anderson was the first to arm himself—with
a knife. Anderson denied this.
UNITED STATES v. ANDERSON 3
of fact are reviewed for clear error. United States v. Garnett, ___ F.3d
___, 2001 WL 246058, at *2 (4th Cir. Mar. 13, 2001); see also United
States v. Nale, 101 F.3d 1000, 1004 & n.3 (4th Cir. 1996). Anderson
argues on appeal that he acted in self-defense. However, at sentencing
Anderson did not present any evidence in support of his claim that he
acted in self-defense. A defendant who contests information in the
presentence report has an affirmative duty to show that the informa-
tion is inaccurate or unreliable. United States v. Terry, 916 F.2d 157,
162 (4th Cir. 1990). Anderson did not meet this burden. In fact, his
attorney conceded that, had he gone to trial on the state charges, he
probably would have been convicted because, after he retreated from
Vaughn into his trailer, he emerged again and presented the firearm.
Therefore, the district court did not clearly err in finding that Ander-
son had used the gun in connection with the felony offense of point-
ing and presenting a firearm.
Anderson also argues that no separate felony occurred because the
state charges were dismissed. Application Note 7 to § 2K2.1 provides
that a felony offense, "as used in subsection (b)(5), means any offense
(federal, state, or local) punishable by imprisonment for a term
exceeding one year, whether or not a criminal charge was brought, or
conviction obtained." The offense of pointing or presenting a firearm
is a felony punishable by five years imprisonment. S.C. Code Ann.
§ 16-23-410. Thus, the district court correctly found that dismissal of
the state charge was not relevant to the determination of Anderson’s
sentence.
Anderson argues that the fines imposed on him for his prior domes-
tic violence convictions should not have been counted in his criminal
history because domestic violence is not similar to the instant offense.
However, § 4A1.2(c) provides that misdemeanor and petty offenses
are counted, except for certain offenses listed in subsection (1) and
offenses similar to them. Domestic violence is not listed as an exclud-
able offense, and the district court found that it was not similar to the
listed offenses, which are all non-violent or can be committed in a
manner which does not involve harm to another person.2 These
2
The listed excludable offenses are: careless or reckless driving; con-
tempt of court; disorderly conduct or disturbing the peace; driving with-
4 UNITED STATES v. ANDERSON
offenses are only counted if: (1) the sentence was a term of probation
of at least one year or a term of imprisonment of at least thirty days,
or (2) the prior offense was similar to the instant offense. Because
criminal domestic violence is not a listed excludable offense and is
not similar to the listed offenses in that it is a violent offense, we find
that the district court did not err in finding that Anderson’s fines for
his prior domestic violence convictions were not excludable under
§ 4A1.2(c)(1).
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
out a license or with a revoked or suspended license; false information
to a police officer; fish and game violations; gambling; hindering or fail-
ure to obey a police officer; insufficient funds check; leaving the scene
of an accident; local ordinance violations (excluding local ordinance vio-
lations that are also criminal offenses under state law); non-support;
prostitution; resisting arrest; and trespassing. USSG § 4A1.2(c)(1).