UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4364
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL EARL JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:14-cr-00044-FL-1)
Submitted: March 17, 2016 Decided: April 14, 2016
Before KING, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Phillip A. Rubin, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Earl Johnson appeals the district court’s judgment
after pleading guilty to being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1),
924 (2012). The district court sentenced Johnson at the bottom
of his Guidelines range to 110 months in prison. On appeal, he
contends the district court erred in calculating his Guidelines
range by applying an official victim enhancement and denying him
a reduction for acceptance of responsibility. We affirm.
We review the reasonableness of a sentence for abuse of
discretion. United States v. Lymas, 781 F.3d 106, 111 (4th Cir.
2015) (citing Gall v. United States, 552 U.S. 38, 41 (2007)).
In determining whether the advisory Guidelines range was
properly calculated, we review the district court’s factual
findings for clear error and its legal conclusions de novo.
United States v. Dodd, 770 F.3d 306, 309 (4th Cir. 2014), cert.
denied, 135 S. Ct. 1514 (2015).
Johnson first contends the district court erred by applying
an official victim enhancement under U.S. Sentencing Guidelines
Manual § 3A1.2(c)(1) (2014). “Section 3A1.2(c)(1) provides for
a six-level enhancement where a defendant ‘in a manner creating
a substantial risk of serious bodily injury,’ and ‘knowing or
having reasonable cause to believe that a person was a law
enforcement officer, assaulted such officer during the course of
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the offense or immediate flight therefrom.’” United States v.
Hampton, 628 F.3d 654, 659 (4th Cir. 2010) (quoting USSG
§ 3A1.2(c)(1)). “As the Sentencing Guidelines do not provide a
definition of ‘assault,’ we turn to the common meaning of the
word for guidance.” Id. at 660 (citation omitted).
In this case, there was evidence that Johnson pointed a
loaded firearm at a police officer while fleeing from police.
On appeal, Johnson argues that he did not assault the officer
because the officer did not see the gun “until after the gun was
said to have been pointed in his direction.” However, the
officer was chasing Johnson as a suspect leaving a scene where
gun shots had been fired, and the officer testified that Johnson
turned back towards the officer while running and extended his
arm straight out and pointed it at the officer, making eye
contact and seeming to adjust his arm to track the officer's
movement. This lead the officer to believe that Johnson was
pointing a gun at him and prompted the officer to raise his own
weapon. The belief was confirmed moments later when the officer
saw the gun in Johnson’s hand, causing the officer to slow down
because he was scared that Johnson was going to shoot him. We
conclude the evidence was sufficient to support the enhancement.
Johnson also contends the district court erred by denying
him a reduction for acceptance of responsibility under USSG
§ 3E1.1 based on his new criminal conduct committed in jail
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while he was awaiting sentencing in this case. Specifically, he
was charged with felony assault with physical injury on a
detention employee. On appeal, he argues that his “difficulties
at the jail had nothing to do with his violation of
§ 922(g)(1),” and he should have received the reduction.
“The decision to grant an acceptance-of-responsibility
reduction often depends on the actions of the defendant
following his or her arrest or plea.” United States v. Dugger,
485 F.3d 236, 240 (4th Cir. 2007). District courts consider
several factors when evaluating whether a defendant has clearly
demonstrated acceptance of responsibility, including “truthfully
admitting the conduct comprising the offense(s) of conviction,”
“voluntary termination or withdrawal from criminal conduct,”
“voluntary surrender to authorities promptly after the
commission of the offense,” “post-offense rehabilitative
efforts,” and “timeliness of the defendant’s conduct in
manifesting the acceptance of responsibility.” Id. at 239
(citation and internal quotation marks omitted). “A guilty plea
may be evidence of acceptance, but it does not, standing alone,
entitle a defendant to a reduction as a matter of right.” Id.
(citation and internal quotation marks omitted).
We will uphold a district court’s decision under § 3E1.1
unless there is evidence compelling us to conclude that the
court committed clear error. Id. We “must give great deference
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to the district court’s decision because the sentencing judge is
in the best position to evaluate the defendant’s acts and
statements to determine whether the defendant has accepted
responsibility for his or her criminal conduct.” Id. Based on
our review of the record, we conclude that the district court
did not clearly err in denying Johnson the § 3E1.1 reduction.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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