United States v. Gregory Gillespie

713 F. App'x 471
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 9, 2017
Docket16-6402
StatusUnpublished
Cited by3 cases

This text of 713 F. App'x 471 (United States v. Gregory Gillespie) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gregory Gillespie, 713 F. App'x 471 (6th Cir. 2017).

Opinions

CLAY, Circuit Judge.

Gregory Gillespie appeals the district court’s calculation of the Guidelines range under U.S.S.G. §§ 2K2.1(b)(6)(B) and 3A1.2(c)(l) and the ultimate sentence imposed after Gillespie pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). For the reasons set forth below, we REVERSE the district court’s ruling on the sentencing enhancements, VACATE Gillespie’s sentence, and REMAND for resentencing using the appropriate Guidelines range.

BACKGROUND

On June 9, 2015, Chattanooga Police Officer Gary Williams received two calls about drive-by shootings involving a white Ford Explorer. After locating the SUV, Officer Williams turned on his blue overhead lights and attempted a traffic stop, but the SUV sped away. Officer Williams pursued the SUV, which eventually came to a stop. Gillespie exited the car from the right rear passenger side with a gun in his hand. Officer Williams struck Gillespie with his patrol car because he feared for his life. The impact dislodged the gun from Gillespie’s right hand. Gillespie fled through an alley, but another officer apprehended him.

Gillespie pleaded guilty to possessing a firearm as a felon, resulting in a Sentencing Guidelines base offense level of 14. 18 U.S.C. § 922(g)(1); U.S.S.G. § 2K2.1(a)(6)(A). His Presentence Investigation Report (“PSR”) added four points for possessing the firearm in connection with another felony—Tennessee aggravated assault—and six points because a law enforcement officer was the victim of the assault. U.S.S.G. §§ 2K2.1(b)(6)(B), 3A1.2(c)(l); Tenn. Code Ann. § 39-13-102(a)(l)(A)(iii). Gillespie objected to both enhancements.

At the sentencing hearing, Officer Williams testified in support of the enhancements. He recounted Gillespie exiting the Explorer: “He turned toward ... me, he looks at me and makes eye contact with me and he brandishes the weapon at me in a drawing motion and muzzle-sweeping me and pointing the gun in my general direction.” Gillespie’s counsel cross-examined Officer Williams with the dash-cam video slowed down to one-quarter speed and still frames from the video. Officer Williams testified that Gillespie made eye contact with him at timestamp 21:52:14 in the video, although the dash cam did not capture it. On redirect examination, Officer Williams testified that the two still frames and quarter-speed video did not change his testimony—he was “certain” that Gillespie pointed the gun at him. The government contended that Officer Williams’ testimony was not inconsistent with the dash-cam video, and that both combine to produce sufficient evidence showing aggravated assault under Tennessee law. Gillespie’s counsel argued that Gillespie did not point the gun at Officer Williams and there was no aggravated assault.

The district court said it had no reason to believe Officer Williams was untruthful about what had occurred off-camera, so it denied Gillespie’s objections to the aggravated assault and official victim enhancements. After a three-point decrease for accepting responsibility, Gillespie’s total offense level was 21 and his criminal history category was IV, yielding a Guidelines imprisonment range of 57-71 months.

The district court asked the parties to address the 18 U.S.C. § 3558(a) sentencing factors, noting that it was contemplating an above-Guidelines sentence because of Gillespie’s criminal history. Gillespie’s counsel highlighted the “less than ideal circumstances” in which Gillespie grew up, plus the recent death of his grandmother (who raised him) and the birth of his twins. Gillespie also spoke, requesting leniency and stating that “[he] really do[es] want to do better.” The government asked the court, in determining the final sentence, to focus particularly on the need to (1) provide just punishment, (2) protect the public, and (3) ensure an adequate deterrent. See 18 U.S.C. § 3553(a)(2)(A)-(C).

The district court acknowledged Gillespie’s “truly tragic” upbringing, but it also recounted his “remarkable” criminal record. Balancing the two, the district court concluded that it must “impose a sentence that protects the public from further crimes” by Gillespie. The court sentenced Gillespie to 120 months imprisonment followed by three years of supervised release.

Gillespie appeals from the district court’s decision and argues that the district court improperly calculated his Guidelines range and abused its discretion by departing from the Guidelines.

ANALYSIS

I. Aggravated Assault of a Law Enforcement Officer and Sentencing Enhancements

A. Standard of Review

We review the district court’s factual findings for clear error and give “due deference” to the district court’s determination that the U.S.S.G. § 2K2.1(b)(6) enhancement applies. United States v. Taylor, 648 F.3d 417, 432 (6th Cir. 2011). A factual finding is clearly erroneous where, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that • a mistake has been committed.” United States v. Webb, 616 F.3d 605, 609 (6th Cir. 2010) (citing United States v. Perez, 871 F.2d 45, 48 (6th Cir. 1989)). “[T]o the extent that [Defendant] challenges the district court’s factual conclusions underlying the aggravated assault, the standard of review is clear error. To the extent that [Defendant] challenges the district court’s legal conclusions regarding the proper interpretation of the elements of the Tennessee assault statute, the standard of review is de novo." United States v. Woodard, 337 Fed.Appx. 534, 537 (6th Cir. 2009).

“ ‘Where there are two permissible views of the evidence,’ the district court does not clearly err in accepting one interpretation over the other.” United States v. Hinojosa, 606 F.3d 875, 882 (6th Cir. 2010) (quoting United States v. Navarro-Camocho, 186 F.3d 701, 708 (6th Cir. 1999)). “Findings of fact anchored in credibility assessments are generally- not subject to reversal upon appellate] review.” United States v. Taylor, 956 F.2d 572, 576 (6th Cir. 1992).

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713 F. App'x 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gregory-gillespie-ca6-2017.