UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-30331
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANDRE GILLYARD,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
August 9, 2001
Before EMILIO M. GARZA, PARKER, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
On May 18, 1999, a highway patrolman with the Texas Department
of Safety, Bruce Dalme, stopped two vehicles traveling eastbound on
Interstate 20 between Dallas/Fort Worth, Texas, and Shreveport,
Louisiana, for following too closely behind an 18-wheeler. A red
Chrysler Concorde, driven by Andre Gillyard’s girlfriend Natasha
Lawrence and in which Appellant Andre Gillyard was a passenger,
followed the 18-wheeler two car lengths behind. Gillyard’s
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friends, Helen Guy, Tiffany Guy, and Princeston Parks, traveled one
car length behind the Concorde in a Pontiac Grand Am. When Officer
Dalme pulled behind the cars, the drivers decreased speed,
increased intervals, and eventually stopped.
When the driver from the lead car exited the Concorde and
approached the trooper, Gillyard slid into the driver’s seat and
sped off. Trooper Dalme pursued Gillyard for 32 miles and at
speeds exceeding 120 miles per hour. According to the Pre-
Sentencing Report, Gillyard “traveled through a one lane
construction zone to move around other vehicles, struck another
vehicle, drove onto the median causing construction workers to jump
out of the way for their safety and continued driving erratically
across the Louisiana state line.” While two 18-wheelers were
occupying both lanes, Gillyard passed them on the right shoulder
and, in doing so, almost struck a Caddo Parish Sheriff’s Office
patrol car. Gillyard avoided the patrol car but caromed off a
concrete piling instead. Gillyard exited the interstate in
Shreveport, Louisiana, sped past a stopped school bus, ran stop
signs in a residential neighborhood, and jumped from the car while
it was in motion. Trooper Dalme finally apprehended Gillyard
several blocks away and subsequently found approximately six bricks
of powder cocaine in the trunk of his car.
Gillyard and Lawrence were charged in a two-count superseding
indictment with conspiracy to possess cocaine hydrochloride with
intent to distribute and possession of cocaine hydrochloride with
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intent to distribute. Gillyard moved to suppress the cocaine and
argued that the officer lacked probable cause to stop the car
initially. The magistrate judge recommended that his motion be
denied. Over Gillyard’s objection, the district court adopted the
magistrate judge’s recommendation.
Gillyard conditionally pleaded guilty to both counts of the
indictment but reserved his right to appeal the denial of his
motion to suppress. The district court assessed a three-level
enhancement under U.S.S.G. § 3A1.2(b) for assaulting a law
enforcement officer and a two-level enhancement under § 3C1.2 for
reckless endangerment of others during flight. Gillyard was
sentenced to 240 months’ imprisonment, five years’ supervised
release, and a $200 special assessment. Gillyard appealed. On
appeal, Gillyard challenges the district court’s denial of his
motion to suppress and the district court’s enhancement under the
sentencing guidelines.
I. Motion to Suppress
Gillyard argues that the district court erred in not
suppressing the cocaine found in the car because Trooper Dalme
lacked probable cause to arrest him. Gillyard contends that the
stop was a pretext to search for narcotics and suggests that
Trooper Dalme’s actions were motivated by racial animus or
profiling; Gillyard states that Trooper Dalme was looking into cars
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and that the “last vehicle stopped by Trooper Dalme four minutes
earlier was also operated by a black person.” Gillyard argues that
Trooper Dalme’s statement that the car was following too closely is
contradicted by the affidavits and testimony of his three friends
who witnessed the stop, Helen Guy, Tiffany Guy, and Princeston
Parks. In addition, Gillyard contends that the video camera inside
Trooper Dalme’s car shows no evidence that the cars were following
too closely. Gillyard entreats that the cocaine should be
suppressed as fruit of an unlawful stop.
The district court, in denying the motion to suppress,
explicitly credited Trooper Dalme’s testimony over that of
Gillyard’s witnesses. In response to Gillyard’s contention that
the videotape showed a reasonable distance between the cars, the
court concluded “[the video recorder] was clearly turned on after
the Trooper had pulled into position behind the red Concorde” and
accepted Trooper Dalme’s explanation that the cars had dropped back
as he approached.
“In reviewing a district court’s ruling on a motion to
suppress, we review questions of law de novo, and accept the trial
court’s factual findings unless they are clearly erroneous.”
United States v. Castro, 166 F.3d 728, 731 (5th Cir. 1999) (en banc)
(citing United States v. Carrillo-Morales, 27 F.3d 1054, 1060-61
(5th Cir. 1994)). “We also view the relevant evidence in a light
most favorable to the party that prevailed; in this case, the
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government.” Id. (citing United States v. Nichols, 142 F.3d 857,
866 (5th Cir. 1998)). “[W]hen a trial judge’s finding is based on
his decision to credit the testimony of one of two or more
witnesses, each of whom has told a coherent and facially plausible
story that is not contradicted by extrinsic evidence, that finding,
if not internally inconsistent, can virtually never be clear
error.” Anderson v. City of Bessemer City, 470 U.S. 564, 575
(1985).
As both parties presented coherent and facially plausible
stories, and as the district court’s factual determination was
based on its credibility assessment, to meet the clear error
standard Gillyard must demonstrate that Dalme’s statements were
either internally inconsistent or contradicted by extrinsic
evidence. Gillyard has not argued that Dalme’s version of the
events is internally inconsistent. He contends only that the video
recording showing the cars to be a greater distance apart is
extrinsic evidence that contradicts Dalme’s story.
The district court explicitly found that the video camera was
not turned on until after Dalme approached the cars and the cars
fell back from the 18-wheeler. Gillyard does not challenge the
district court’s findings regarding when the video camera was
turned on, and Gillyard’s contention that turning on a video camera
“is not an effort which requires a great passage of time” (implying
that the camera should have been activated earlier) does not
“clearly demonstrate that those findings were in fact wrong.”
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Castro, 166 F.3d at 733. The testimony of Gillyard’s witnesses
also does not demonstrate that the district court clearly erred in
accepting Trooper Dalme’s version of the events. When “there are
two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” Anderson, 470 U.S. at
574.
Finally, Gillyard’s argument that the stop was motivated by
racial animus and was a pretext to search for narcotics is
unavailing, as the subjective motivations of police are deemed
irrelevant as long as their conduct does not exceed what they are
objectively authorized to do. Whren v. United States, 517 U.S.
806, 814 (1996). Gillyard does not argue that following too
closely is not a traffic violation under Texas law. Tex. Transp.
Code § 545.062(a) (Vernon 1999) (“An operator shall, if following
another vehicle, maintain an assured clear distance between the two
vehicles so that, considering the speed of the vehicles, traffic,
and the conditions of the highway, the operator can safely stop
without colliding with the preceding vehicle or veering into
another vehicle, object, or person on or near the highway.”). And,
he has presented no reasonable basis to challenge the district
court’s finding that a traffic violation was, in fact, committed by
the driver of the Concorde. Thus, he has not shown that the stop
of the Concorde violated the Fourth Amendment. Whren, 517 U.S. at
810 (“As a general matter, the decision to stop an automobile is
reasonable where the police have probable cause to believe that a
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traffic violation has occurred.”).
II. Gillyard’s Sentencing Enhancement
Gillyard also argues that the district court erred in
assessing a three-level enhancement under U.S.S.G. § 3A1.2(b) for
assault on a law enforcement officer and a two-level enhancement
under § 3C1.2 for reckless endangerment during flight for the same
high-speed car chase. The PSR recommended a three-level
enhancement under § 3A1.2 because Gillyard’s threatening conduct
toward the officers was tantamount to aggravated assault against a
law enforcement officer and a two-level enhancement under § 3C1.2
for recklessly endangering others (i.e., construction workers,
school children, and other motorists) during the high-speed chase.
Although the district court was initially “inclined to not do
both,” it later applied both enhancements. Gillyard argues that
this assessment constitutes impermissible “double counting” that is
explicitly prohibited by the Application Notes to § 3C1.2. See
United States v. Morris, 131 F.3d 1136, 1140 (5th Cir. 1997)
(“[D]ouble counting is prohibited only if the particular guidelines
at issue forbid it.”).
“This court reviews the sentencing court’s application of the
U.S.S.G. de novo, while reviewing the sentencing court’s factual
findings for clear error.” United States v. Fitch, 137 F.3d 277,
281 (5th Cir. 1998) (citing United States v. Edwards, 65 F.3d 430,
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432 (5th Cir. 1995)). Section 3A1.2(b) provides for a three-level
increase if “during the course of the offense or immediate flight
therefrom, the defendant . . . assaulted [an] officer in a manner
creating a substantial risk of serious bodily injury.” Section
3C1.2 requires a two-level increase “[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.” Application note 1 to section 3C1.2 instructs that this
enhancement 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.” § 3C1.2, Application Note 1.
Gillyard contends that his conduct did not rise to the level
of assault against officers. Gillyard argues that the police were
not endangered by his erratic driving and that he did not
intentionally threaten them, but took evasive action to avoid
striking the police car. Moreover, Gillyard argues that his
conduct did not create a “substantial” risk of death or serious
bodily injury to others because he did not fire shots and because
he stayed in the eastbound lane of the Interstate. Gillyard also
contends that applying both enhancements from § 3A1.2 and § 3C1.2
constitutes impermissible double counting.
The PSR and the evidence are sufficient to support as not
clearly erroneous the district court’s evident factual findings
that the high-speed chase endangered both police officers and
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others. As the government contends, Gillyard “travelled through a
one lane construction zone to move around other vehicles, struck
another vehicle, drove onto the median causing construction workers
to jump out of the way for their safety and continued driving
erratically across the Louisiana state line.” In addition,
Gillyard’s reckless driving in residential neighborhoods and
disregard of stop signs and traffic lights endangered others. The
PSR revealed that the defendant made threatening moves with his car
towards the police vehicles and almost struck a Caddo Parish
Sheriff’s car. During the Sentencing Hearing, the district judge,
after considering the statements in the PSR and viewing the
videotape of the car chase, concluded that Gillyard placed numerous
people in serious jeopardy and committed aggravated assault against
law enforcement officers, and applied both enhancements. Because
Gillyard has not shown that the district court’s factual findings
on these issues were clearly wrong, we will not disturb the court’s
judgment on these issues.
With respect to whether the two sentencing enhancements
assessed by the district court under sections 3A1.2 and 3C1.2
constituted impermissible double counting, we have found no Fifth
Circuit case squarely on point on both facts and law. The
government cites other circuits’ decisions discussing the
application of sections 3A1.2(b) and 3C1.2 in which the defendant
alleged double counting. Although most of the cases are
distinguishable as they involve a combination of different kinds of
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actions (i.e., firing a gun and leading police on a car chase),1
other cases bear on our analysis by analogy.
The courts that have addressed the issue of double
enhancements for different aspects of a criminal transaction have
focused on the temporal and spatial distinctiveness or separateness
of the acts in determining whether the defendant’s conduct involves
more than one culpable act. United States v. Matos-Rodriguez, 188
F.3d 1300, 1312 (11th Cir. 1999).2 Threats to police and to
bystanders that occur at different times and in different places
have been viewed as two separate acts worthy of two separate
enhancements under the guidelines. Matos-Rodriguez, 188 F.3d at
1312 (11th Cir. 1999). In Matos-Rodriguez, the court applied both
1
See, e.g., United States v. Alicea, 205 F.3d 480, 486 (1st Cir.
2000) (concluding that a double enhancement under § 3A1.2(b) and §
3C1.2 for firing shots in an open plaza and firing a pistol at
police pursuing the defendant while fleeing the scene was not
impermissible double counting); United States v. White, 222 F.3d
363, 376 (7th Cir. 2000) (upholding the district court’s enhancement
of the defendant’s sentence under both § 3A1.2(b) and § 3C1.2 for
assaulting an officer with a gun before endangering others in a
flight from a bank); United States v. Swoape, 31 F.3d 482, 483 (7th
Cir. 1994)(applying both the enhancements in § 3A1.2(b) and § 3C1.2
because the defendant led the police on a chase endangering others
before shooting at and hitting a police officer); United States v.
Alexander, 48 F.3d 1477, 1492 (9th Cir. 1995) (applying both § 3C1.2
and § 3A1.2(b) because “the reckless endangerment provision applied
not only because shots were fired during the attempted getaway, but
also because of the risk of injury to civilians caused by the high-
speed chase and by the defendants’ serious violations of other
traffic laws”).
2
But see United States v. Sloley, 19 F.3d 149, 154 (4th Cir.
1994) (stating, in dicta, that “[i]f both § 3A1.2(b) and § 3C1.2
apply to a defendant, the court must apply only the former and
increase the offense level by three levels”) (citing U.S.S.G. §
3C1.2, comment 1).
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enhancements because the defendant not only gunned the engine of
his car, causing the police officer in front of the vehicle to push
off in self-defense, but also sped away running stop signs and
driving the wrong way on the street. Id. The court concluded that
“Matos’ conduct did not occur in a small area of only ‘two or three
car lengths,’ or in a brief expanse of time. Rather, Matos’
assault of [the police] was separated temporally and spatially from
his subsequent, reckless conduct in leading police officers on a
high-speed chase. The court concluded that this was not a single,
uninterrupted event and that enhancements were not levied ‘solely
on the basis of the same conduct.’” Id. ; see also United States
v. Lowhorn, No. 99-6641, 2001 WL 303359, at *3 (6th Cir. Mar. 20,
2001) (unpublished)(holding that two adjustments for the
defendant’s conduct during a single car chase of accelerating
toward a police road block and ignoring stop signs and traffic
signals were permissible because they were “applied to address
separate and distinct instances of harm caused by factually
distinct actions by the defendant”); United States v. Kadunc, Nos.
99-3908 & 99-3909, 2001 WL 224002, at *5 (6th Cir. Feb. 27, 2001)
(unpublished) (holding that enhancements under § 3A1.2(b) and §
3C1.2 are permissible as “the reckless endangerment of an
unidentified motorist at the red light is separate and distinct
[both temporally and geographically] from the vehicular assault on
the FBI agent”); United States v. Miner, 108 F.3d 967, 970 (8th Cir.
1997) (holding that “the district court properly increased Miner’s
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offense level for assaulting a police officer when he rammed his
car into a police roadblock, and for his chase-related conduct that
created a risk of serious injury to other drivers and
pedestrians”); United States v. Hernandez-Sandoval, 211 F.3d 1115,
1118 (9th Cir. 2000) (allowing a double enhancement under § 3A1.2(b)
and § 3C1.1 and holding that the defendant’s conduct of speeding
through streets and ramming police cars “were . . . not only on
independent actions but [perpetrated] on distinct victims”).
On the other hand, threats to police and bystanders that
happened in the same or nearby place and at the same time are
viewed as one act deserving of only one enhancement. United States
v. Hayes, 135 F.3d 435, 437 (6th Cir. 1998). In Hayes, 135 F.3d at
437, the Sixth Circuit concluded that punching a car’s accelerator
which resulted in injury to a law enforcement officer and
endangerment of a child riding in the car was a “single,
uninterrupted act.” “To suggest that the conduct that caused the
assault of [the officer] was different from that which placed the
young child in danger would be ‘an artificial and unrealistic
division of a single uninterrupted course of conduct into separate
events.’” Id. (quoting United States v. Beckner, 983 F.2d 1380,
1384 (6th Cir. 1983)); cf. United States v. Cabral-Castillo, 35 F.3d
182 (5th Cir. 1994) (disallowing a double enhancement under § 3C1.2
and § 2D1.1(b)(1) for reckless endangerment during flight and use
of a deadly weapon (i.e., his car) when the defendant drove his car
at a high speed toward a border patrol agent).
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As in Matos-Rodriguez, Gillyard’s acts of assault against a
policeman and reckless endangerment of others were temporally and
geographically separate. Although both occurred during the same
car chase, both occurred at different times and in different
places. Although the car chase jeopardized all in the vicinity,
Gillyard’s threats of force upon police occurred on the interstate
and after his endangerment of the construction workers on the
median. Similarly, the police endangerment occurred before
Gillyard’s violations of reckless driving, speeding, disobeying
stop signs and signals, and illegally passing a school bus in a
different vicinity. Gillyard’s conduct is pertinently
distinguishable from that in Hayes and in Cabral-Castillo. The
threat in Hayes, although involving two victims, clearly involved
one temporally and spatially unified action; the conduct in Cabral-
Castillo involved only one threat to one victim. Because we find
that Gillyard’s conduct involved two temporally and geographically
separate acts aimed at different victims, two enhancements were
appropriate and not prohibited by comment 1 to § 3C1.2.
III. Conclusion
For the foregoing reasons, the district court’s denial of
Gillyard’s motion to suppress, its application of the sentencing
guidelines, and the defendant’s sentence are AFFIRMED.
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