UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4299
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RASHAWN LAMAR OWENS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (7:08-cr-00095-BO-1)
Submitted: December 11, 2009 Decided: January 4, 2010
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rashawn Lamar Owens pled guilty to unlawful possession
of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006),
and was sentenced to a term of 110 months imprisonment. Owens
appeals his sentence, contending that the district court erred
in giving a four-level increase for use of a firearm in
connection with another felony, U.S. Sentencing Guidelines
Manual § 2K2.1(b)(6) (2008), and plainly erred in adopting the
enhanced base offense level of 24 under USSG § 2K2.1(a)(2),
based in part on Owens’ prior North Carolina conviction for
speeding to elude arrest. We affirm.
Owens was arrested after narcotics officers executed a
search warrant at a hotel room in Jacksonville, North Carolina.
Owens was not a suspect in the drug investigation, but when the
officers entered the hotel room, Owens was seated in a chair
with a 9mm pistol pointed at the officers. In the presentence
report, the probation officer recommended a four-level increase
for use of a firearm in connection with another felony, i.e.,
assault on the law enforcement officers by pointing the gun at
them. At sentencing, Owens insisted that he did not commit an
assault because he did not realize the officers were law
enforcement officers and thought he was being robbed. One of
the arresting officers testified at sentencing that they
announced their presence and identity loudly and knocked before
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opening the door, that they were wearing clothing that clearly
identified them as law enforcement officers, and that Owens
dropped the gun only after he was ordered to do so three times.
The district court summarily overruled Owens’ objection and
applied the enhancement.
Whether a defendant has actually possessed a firearm
in connection with another felony offense is a factual question.
United States v. Garnett, 243 F.3d 824, 829 (4th Cir. 2001).
Accordingly, the district court’s decision to enhance Owens’
offense level pursuant to § 2K2.1(b)(6) is reviewed for clear
error. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.),
cert. denied, 128 S. Ct. 2525 (2008). Owens suggests that the
district court wrongly assumed that pointing a firearm at a law
enforcement officer is a felony under North Carolina law
regardless of whether the defendant knew the law enforcement
officer was in fact a law enforcement officer. 1 See State v.
Avery, 337 S.E.2d 786, 803 (N.C. 1985) (holding that “knowledge
is an essential element of the crime of assault with a firearm
upon a law enforcement officer”). Owens bases his argument
1
Under N.C. Gen. Stat. § 14-34.2 (LexisNexis 2007), an
assault with a firearm on a law enforcement officer in the
performance of his duties is a Class F felony. An assault by
pointing a gun “at any person,” is a Class A1 misdemeanor under
N.C. Gen. Stat. § 14-34, and a simple assault is a Class 2
misdemeanor. N.C. Gen. Stat. § 14-33 (LexisNexis 2007).
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primarily on the brevity of the district court’s ruling,
contending that the district court did not find that he
knowingly pointed a gun at the officers. He also argues that
the officer’s testimony was insufficient to support the enhanced
base offense level because it did not establish how long it took
him to recognize that he was confronting law enforcement
officers. However, we agree with the government’s position that
the only question before the district court at sentencing was
whether Owens knew that he was pointing his gun at law
enforcement officers. Therefore, the district court’s denial of
Owens’ objection constituted a ruling that he pointed the gun
with knowledge that the persons entering the hotel room were law
enforcement officers.
Owens contends that we are precluded from reaching
this conclusion, relying on United States v. Carter, 564 F.3d
325, 329 (4th Cir. 2009), in which we noted that “the Supreme
Court’s recent sentencing jurisprudence plainly precludes any
presumption that, when imposing a sentence, the district court
has silently adopted arguments presented by a party.” However,
in Carter, the issue was the district court’s failure to provide
a specific explanation for a below-guideline sentence. We held
that the sentence was procedurally unreasonable because the
record did not reveal the sentencing court’s reasons for
choosing the sentence it imposed. Id. at 330. By contrast, a
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narrow issue was before the district court and the court’s
ruling was clearly a rejection of Owens’ claim that he did not
know he was pointing a gun at police. Although a more complete
explanation would have been preferable, the court’s ruling was
adequate under the circumstances.
In addition, the officer’s testimony was sufficient to
establish by a preponderance of the evidence that Owens had time
to recognize the men entering the room as police. See United
States v. Jeffers, 570 F.3d 557, 570 (4th Cir. 2009) (stating
standard of review). Here, the information before the district
court was sufficient to support its finding by a preponderance
of the evidence.
Owens did not challenge his base offense level of 24
in the district court and thus his challenge to it is reviewed
for plain error. United States v. Hughes, 401 F.3d 540, 547
(4th Cir. 2005). Under the plain error test, United States v.
Olano, 507 U.S. 725, 732-37 (1993), a defendant must show that
(1) error occurred; (2) the error was plain; and (3) the error
affected his substantial rights. Id. at 732. Even when these
conditions are satisfied, this court may exercise its discretion
to notice the error only if the error “seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted).
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A base offense level of 24 is applied under
§ 2K2.1(a)(2) if the defendant committed the instant offense
after being convicted of two felony offenses that are either a
crime of violence or a controlled substance offense. A “crime
of violence,” as used here, see § 2K2.1 cmt. n.1, is defined in
USSG § 4B1.2(a) as –
[A]ny offense under federal or state law, punishable
by imprisonment for a term exceeding one year, that –
(1) has as an element the use attempted use, or
threatened use of physical force against the person of
another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.
Owens claims that the district court erred in
accepting the probation officer’s calculation of the base
offense level at 24, based in part on his prior North Carolina
felony conviction for eluding arrest with a motor vehicle with
three aggravating factors, in light of Begay v. United States,
128 S. Ct. 1581, 1585 (2008) (holding that a crime of violence
under the “otherwise” clause in 18 U.S.C. § 924(e) (2006), which
mirrors the language in § 4B1.2(a)(2), must be “roughly similar,
in kind as well as in degree of risk posed,” to the enumerated
crimes), and United States v. Roseboro, 551 F.3d 226 (4th Cir.
2009) (holding that test applied in United States v. James, 337
F.3d 387, 390-91 (4th Cir. 2003), is no longer good law;
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applying Begay). He also relies on Chambers v. United States,
129 S. Ct. 687 (2009) (holding that the crime of failing to
report for confinement is not a “violent felony” under the Armed
Career Criminal Act, 18 U.S.C. § 924(e)).
In Roseboro, we held that “the proper inquiry focuses
on the similarity between the prior crime and the enumerated
crimes in § 924(e)(2)(B)(ii), asking whether the prior crime
involved purposeful, violent, and aggressive conduct, which
would demonstrate a likelihood that the defendant would use a
firearm during the commission of a crime.” Roseboro, 551 F.3d
at 234. We further held that “[t]he intentional act of
disobeying a law enforcement officer by refusing to stop for his
blue light signal, without justification, is inherently an
aggressive and violent act.” Id. at 240. Roseboro decided that
a South Carolina conviction for failure to stop for a blue light
was not categorically a “violent felony” under § 924(e) or a
crime of violence under the guidelines because it did not
require the government to prove that the defendant’s failure to
stop was intentional. Id. at 240-41. However, we noted in
Roseboro that the North Carolina speeding to elude statute at
issue in this case, N.C. Gen. Stat. § 20-141.5, is one that does
“require that the failure to stop for a blue light be
purposeful.” Roseboro, 551 F.3d at 236, 239 & n.5. Thus, under
Roseboro, the district court did not err, or plainly err, in
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accepting the probation officer’s recommendation to treat Owens’
prior felony speeding to elude conviction as a crime of violence
and applying the enhanced base offense level in § 2K2.1(a)(2). 2
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 argument would not aid the
decisional process.
AFFIRMED
2
Owens maintains that Chambers v. United States, 129 S. Ct.
687 (2009), prohibits a sentencing court from assuming that a
prior offense involves conduct that presents serious potential
risk to others, given that the Supreme Court in Chambers relied
on statistical analysis rather than “assumptions about inherent
risks” to reach its decision. We are not persuaded that
Chambers requires a reexamination of this aspect of Roseboro.
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