UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4020
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL VERNELL WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:05-cr-00198-1)
Submitted: May 7, 2008 Decided: May 19, 2008
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
W. Michael Frazier, FRAZIER & OXLEY, L.C., Huntington, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, J. Christopher Krivonyak, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Vernell Williams pled guilty to possession of
five grams or more of cocaine base (crack) with intent to
distribute, 21 U.S.C. § 841(a)(1) (2000) (Count One), and carrying
a firearm during and in relation to a drug trafficking crime, 18
U.S.C.A. § 924(c) (West 1999 & Supp. 2007) (Count Two). He
received a sentence of eighty-four months imprisonment. Williams
appeals his sentence,* arguing that the district court clearly
erred in giving him an adjustment for reckless endangerment during
flight, U.S. Sentencing Guidelines Manual (USSG) § 3C1.2 (2006).
He also contends that the adjustment resulted in impermissble
double counting because it was imposed in conjunction with his
sentence for the § 924(c) offense. We agree that § 3C1.2 applied
and affirm the sentence.
On November 4, 2003, two police officers in Huntington,
West Virginia, stopped the vehicle Williams was driving because it
matched the description of a vehicle they were looking for in
connection with a murder. Williams got out of the car as
requested, but when the officers attempted to pat him down for
weapons, he resisted. A struggle followed, during which the
officers found a pistol in Williams’ waistband. Williams was
*
In his plea agreement, Williams waived his right to appeal
the reasonableness of his sentence as long as it was within the
guideline range established at sentencing, but reserved the right
to appeal the calculation of the guideline range.
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subdued and placed on the ground. He was carrying 11.01 grams of
crack and $1003 in cash.
In calculating Williams’ offense level for the drug
count, the probation officer did not include a two-level
enhancement for possession of a weapon during the drug offense
because of Williams’ § 924(c) conviction. See USSG § 2K2.4,
comment. (n.4). However, the probation officer recommended a two-
level adjustment under USSG § 3C1.2 for recklessly creating a
substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.
This enhancement was based on Williams’ brief struggle with the
officers while he was armed with the pistol. Williams contested
the § 3C1.2 adjustment, arguing that he had simply failed to be
cooperative. He also argued that, because he had been convicted of
possession of a gun during a drug trafficking crime, the § 3C1.2
adjustment amounted to double counting. At the sentencing hearing
in November 2007, the district court overruled Williams’ objection
to the § 3C1.2 adjustment. Williams did not raise the double
counting claim he had set out in his written objections, and the
district court did not address it.
On appeal, Williams first argues that the § 3C1.2
adjustment was not warranted by the facts. The district court’s
determination of the facts is reviewed for clear error; its
decision that an adjustment applies is reviewed de novo. United
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States v. Quinn, 359 F.3d 666, 679 (4th Cir. 2004). Guideline
section 3C1.2 provides: “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,
increase by 2 levels.” The term “during flight” encompasses
“preparation for flight” and includes conduct that “occurs in the
course of resisting arrest.” USSG § 3C1.2, comment. (n.3).
Williams contends that the district court applied the
adjustment merely because he was carrying a firearm. Although
Williams was not technically resisting arrest when he struggled
with the officers, he was anticipating the arrest that he knew
would occur if he were found to be carrying a gun together with
eleven grams of crack and $1003 in cash.
Both the plain language of the guideline and case law
mandate application of the adjustment when the defendant is
resisting arrest and his conduct creates a substantial risk of
serious bodily injury, even though no injury results. See, e.g.,
United States v. Jimenez, 323 F.3d 320, 323-24 (5th Cir. 2003);
United States v. Thomas, 294 F.3d 899, 906-07 (7th Cir. 2002);
United States v. Williams, 254 F.3d 44, 47-48 (2d Cir. 2001). A
struggle in which all the parties are armed carries an obvious risk
that the struggle might escalate to the point that a firearm is
used, or discharges accidentally. We conclude that the district
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court did not clearly err in finding that Williams’ conduct created
such a risk.
Next, Williams contends that, because the § 3C1.2
adjustment was imposed with his sentence for the § 924(c) offense,
it constituted impermissible double counting. Because Williams
failed to raise the issue at the sentencing hearing, the plain
error standard of review applies. United States v. Olano, 507 U.S.
725, 732-37 (1993).
Double-counting is permitted under the guidelines
“[u]nless a guideline provision expressly prohibits consideration
of a factor previously used in applying another guideline section.”
United States v. Blake, 81 F.3d 498, 505 (4th Cir. 1996).
Application Note 1 to § 3C1.2 states that the adjustment should not
be applied “where the offense guideline in Chapter Two, or another
adjustment in Chapter Three, results in an equivalent or greater
increase in offense level solely on the basis of the same conduct.”
This commentary does not preclude application of the adjustment
Williams received, which was based on conduct separate from
Williams’ possession of the gun--his resistance and struggle with
the armed policemen while armed himself. We are satisfied that no
error occurred
Accordingly, we affirm the sentence imposed by the
district court. We dispense with oral argument because the facts
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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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