United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1222
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Christopher T. Brown, * [UNPUBLISHED]
*
Appellant. *
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Submitted: October 15, 2007
Filed: October 26, 2007
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Before BYE, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
Christopher Brown pleaded guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2) and was sentenced to ninety-seven
months of imprisonment. In calculating the advisory guideline range, the district
court1 applied both a four-level enhancement under U.S. Sentencing Guidelines
(U.S.S.G.) § 2K2.1(b)(5) (2005) after finding Brown possessed the firearm in
connection with another felony offense, and a six-level enhancement under U.S.S.G.
§ 3A1.2(c)(1) (2005) after finding Brown created a substantial risk of serious bodily
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
injury by firing his weapon at a law enforcement officer. Both enhancements were
based on the same conduct, Brown's act of firing his weapon at Officer Holsworth
while fleeing on foot.
On appeal, Brown contends the district court erred in finding he fired his
weapon at the officer, claiming the gun accidentally discharged after he tried to throw
it in a dumpster where it hit the top of the dumpster and fell to an asphalt surface.
Brown also contends the district court engaged in impermissible double-counting
when it applied both enhancements based on the single act of firing the weapon while
fleeing the officer.
Reviewing the district court's findings of fact for clear error, United States v.
Finck, 407 F.3d 908, 913 (8th Cir. 2005), we see no basis for reversal. The
government presented sufficient evidence through the testimony of Officer Holsworth
and the cross-examination of Brown's firearm expert, Richard Post, for the district
court to reject Brown's claim of accidental discharge and to find he fired the weapon
at the officer. In addition, Brown's double-counting contention is foreclosed by
United States v. Fleming, 8 F.3d 1264, 1266-67 (8th Cir. 1993) (approving the use of
enhancements under both § 2K2.1 and § 3A1.2 based upon a fleeing defendant's act
of shooting at an officer while possessing a firearm).
Accordingly, we affirm.
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