UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4317
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD N. HAYNES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-03-286)
Submitted: July 27, 2005 Decided: October 11, 2005
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Frances H. Pratt, Research and
Writing Attorney, Richmond, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Michael J. Elston, Assistant
United States Attorney, Matthew C. Ackley, Special Assistant United
States Attorney, Robert M. Worster, III, Third-Year Law Student,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Donald N. Haynes pled guilty to possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was
sentenced to a term of eighty-four months imprisonment. Haynes
appeals his sentence. Relying on Blakely v. Washington, 542 U.S.
296 (2004), and its progeny, he contends that the district court
erred in applying an adjustment for reckless endangerment pursuant
to U.S. Sentencing Guidelines Manual § 3C1.2 (2003), and in
adopting the calculation of his base offense level and criminal
history recommended in the presentence report. Haynes also
maintains that the court’s application of the reckless endangerment
adjustment was clearly erroneous. Finally, Haynes asserts that the
court erred in concluding that it lacked authority to depart
downward under USSG § 5K2.13, p.s. (Diminished Capacity). For the
reasons explained below, we affirm the sentence.
On July 7, 2003, police in Richmond, Virginia, responded
to a report of gunshots being fired. Haynes was found just inside
the front door of his house with a gun in one hand and a bottle of
wine in the other hand. While officers evacuated Haynes’ wife and
mother-in-law from the house, Haynes refused to give up the gun,
pointing it repeatedly at the officers and stating, “You will have
to take me because I’m not going back.” Haynes retreated upstairs,
where there was a small child. After a stand-off lasting thirty to
forty-five minutes, Haynes’ mother persuaded him to surrender.
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Haynes had prior convictions for assault, unlawful wounding, and
possession of crack cocaine with intent to distribute, and a
history of mental illness. He had run out of his prescribed
medication some time before and had not been able to obtain a new
supply.
Without a written plea agreement, Haynes pled guilty to
possession of a firearm by a convicted felon. The probation
officer recommended a base offense level of 24 under USSG
§ 2K2.1(a)(2), which applies when the defendant has two or more
prior convictions for either a crime of violence or a drug offense,
and added a two-level adjustment for reckless endangerment during
flight or preparation for flight under USSG § 3C1.2 because Haynes
had pointed his gun at the arresting officers and had endangered a
small child. Haynes was in criminal history category V. His
guideline range was 84-105 months.
At the sentencing hearing, the district court heard
testimony from Haynes’ family, one of the arresting officers, and
a psychiatrist who had evaluated Haynes at his attorney’s request.
The court determined that the adjustment for reckless endangerment
applied and declined to depart downward based on diminished
capacity because the offense involved violence or a serious threat
of violence. The court imposed the minimum guideline sentence of
eighty-four months imprisonment.
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Reckless Endangerment, USSG § 3C1.2
Haynes asserts that the adjustment for reckless
endangerment was incorrectly applied because he did not act
willfully. The district court’s legal interpretation of an
applicable guideline term is reviewed de novo, while its factual
findings are reviewed for clear error. United States v. Quinn, 359
F.3d 666, 679 (4th Cir. 2004). Guideline section 3C1.2 provides
that, “[i]f 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, increase by 2 levels.” The
term “reckless” is defined as conduct “in which the defendant was
aware of the risk created by his conduct and the risk was of such
a nature and degree that to disregard that risk constituted a gross
deviation from the standard of care that a reasonable person would
exercise in such a situation.” USSG §§ C1.2, comment. (n.2),
2A1.4, comment. (n.1). “During flight” includes conduct that occurs
“in the course of resisting arrest.” USSG § 3C1.2, comment. (n.3);
see United States v. Campbell, 42 F.3d 1199, 1205-06 (9th Cir.
1994) (reckless endangerment occurred in twelve-hour standoff
during which defendant said he would not be taken and threatened to
kill anyone who tried to arrest him). Here, the standoff lasted
thirty to forty-five minutes. There was no evidence that Haynes’
condition prevented him from appreciating the danger to others his
conduct presented, and he had ample opportunity to surrender the
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gun. The district court found that Haynes’ conduct was “active and
willful as evidenced by [his] statement that he wasn’t going back
[to jail].” We conclude that the district court did not clearly
err in finding that Haynes acted willfully and that the court
correctly applied the adjustment.
Booker1 Claims
Because Haynes did not raise these issues in the district
court, our review is for plain error. United States v. Harp, 406
F.3d 242, 247 (4th Cir. 2005). To establish plain error, Haynes
must show that an error occurred, that the error was plain, and
that the error affected his substantial rights. United States v.
Olano, 507 U.S. 725, 732 (1993); United States v. Hughes, 401 F.3d
540, 547-48 (4th Cir. 2005). If a defendant establishes these
requirements, the court’s “discretion is appropriately exercised
only when failure to do so would result in a miscarriage of
justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 555 (internal
quotation marks and citation omitted). To establish that a Sixth
Amendment error occurred in his sentencing, Haynes must show that
the district court imposed a sentence that exceeded the maximum
allowed based only on the facts he admitted. Booker, 125 S. Ct. at
1
United States v. Booker, 125 S. Ct. 738 (2005).
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756 (“Any fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt”);
United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).
A. Reckless Endangerment
Haynes did not admit certain facts on which the
adjustment was based. The indictment charged only that Haynes
unlawfully possessed a firearm after previously being convicted of
a felony. At the guilty plea hearing, Haynes did not admit that he
pointed the gun at the officers or that he recklessly endangered
others. Without the adjustment, and assuming a base offense level
of 24, Haynes’ offense level would have been 24 before the
reduction for acceptance of responsibility. See United States v.
Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005) (holding that, to
determine whether sentence exceeded maximum permitted by facts
defendant admitted, appellate court should look to guideline range
based on admitted facts before any reduction for acceptance of
responsibility). Because Haynes was in criminal history V, his
guideline range would have been 92-115 months. Haynes’ eighty-
four-month sentence did not exceed the maximum sentence allowed
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based on the facts he admitted. Therefore, no Sixth Amendment
error occurred. Id.2
B. Enhanced Base Offense Level
Under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),
a sentence may be enhanced based on the fact of a prior conviction.
However, when the sentencing court looks “beyond the charging
document, the terms of a plea agreement, the plea colloquy, the
statutory definition, or any explicit finding of the trial court to
determine a fact about a prior conviction,” then the finding has
gone too far afield from the prior judicial record and falls
outside the Apprendi exception for prior convictions. United
States v. Collins, 412 F.3d 515, 521-22 (4th Cir. 2005) (citing
Shepard v. United States, 125 S. Ct. 1254, 1263 (2005)) (internal
quotation omitted). In Collins, as in Haynes’ case, the prior
convictions in question were possession of cocaine with intent to
distribute3 and unlawful wounding. As in Collins, the court did
not need to make any fact findings about these convictions to
conclude that one was a crime of violence and the other was a
2
As in Evans, 416 F.3d at 300 n.4, Haynes cannot show error
even if we calculate his guideline range with a three-level
adjustment for acceptance of responsibility. A total offense level
of 21 and a criminal history category of V yields a guideline range
of 70-87 months. His sentence was within that range.
3
In Collins, the prior offense was possession of cocaine with
intent to distribute; Haynes’ prior offense was possession of
cocaine base with intent to distribute.
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controlled substance offense. Collins, 412 F.3d at 521-22.
Therefore, the enhancement of Haynes’ base offense level under
§ 2K2.1(a)(2) is within the Apprendi exception and does not violate
the Sixth Amendment or due process.
C. Criminal History
Haynes asserts that the factual findings required to
determine whether particular convictions are countable and how many
points are assessed involve more than the mere fact of a prior
conviction and therefore are subject to the requirements of
Blakely. In effect, he argues that the prior conviction exception
laid out in Almendarez-Torres v. United States, 523 U.S. 224
(1998), and reaffirmed in Apprendi, may no longer be good law.
This argument is foreclosed by the Supreme Court’s reaffirmation of
the prior conviction exception in Booker. See Booker, 125 S. Ct.
at 756 (“Any fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by
the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt.”). The exception is still good law.
Nor does the application of the prior conviction
exception to Haynes raise any of the problems outlined in Shepard.
Because no facts related to Haynes’ prior convictions were
disputed, the district court judge’s determination of Haynes’
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criminal history did not violate the Sixth Amendment. Cf. United
States v. Washington, 404 F.3d 834, 843 (4th Cir. 2005) (finding
that district court’s reliance on disputed facts about the
defendant’s prior breaking and entering conviction to determine
that it was a crime of violence violated the defendant’s Sixth
Amendment right to trial by jury).
Authority to Depart for Diminished Capacity
Haynes contends that the district court found that he
suffered from diminished capacity, but declined to depart out of a
mistaken belief that his offense involved actual violence or a
serious threat of violence. When the defendant appeals his
sentence, the district court’s refusal to depart below the
guideline range is not reviewable unless the court’s decision
resulted from a mistaken belief that it lacked authority to depart.
United States v. Shaw, 313 F.3d 219, 222 (4th Cir. 2002). Because
Haynes argues that the district court failed to understand its
authority to depart, we review this issue de novo.
Guideline section § 5K2.13 states that a departure may
not be made under this policy statement if:
(1) the significantly reduced mental capacity was caused
by the voluntary use of drugs or other intoxicants; (2)
the facts and circumstances of the defendant’s offense
indicate a need to protect the public because the offense
involved actual violence or a serious threat of violence;
(3) the defendant’s criminal history indicates a need to
incarcerate the defendant to protect the public; or (4)
the defendant has been convicted of an offense under
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chapter 71, 109A, 110, or 117, of Title 18, United States
Code.
The district court held that Haynes’ conduct precluded a
departure because the facts and circumstances of his case involved
violence or a serious threat of violence and indicated a need to
protect the public. The court was not mistaken in deciding that,
under the circumstances, it lacked authority to depart under
§ 5K2.13.
For the reasons discussed, we 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
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