United States v. Jason Hemphill

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 1, 2023
• Docket: 22-4109
• Status: Unpublished

Opinion

USCA4 Appeal: 22-4109 Doc: 24 Filed: 02/01/2023 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4109

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JASON DEMARCUS HEMPHILL,

Defendant - Appellant.

Appeal from the United States District Court for the Western District North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:20-cr-00332-RJC-DSC-1)

Submitted: January 4, 2023 Decided: February 1, 2023

Before NIEMEYER and HARRIS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Mekka Jeffers-Nelson, LAW OFFICE OF MEKKA JEFFERS-NELSON, Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, Anthony J. Enright, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4109 Doc: 24 Filed: 02/01/2023 Pg: 2 of 5

PER CURIAM:

Jason Demarcus Hemphill pled guilty, without the benefit of a plea agreement, to

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2). The district court sentenced Hemphill to 104 months’ imprisonment. On

appeal, Hemphill contends that the district court improperly delayed the sentencing hearing

for 30 minutes and clearly erred in applying a two-level enhancement under U.S.

Sentencing Guidelines Manual § 3C1.2 (2018) for reckless endangerment during flight.

We affirm.

Hemphill’s sentencing hearing was scheduled for February 1, 2022, at 2:00 p.m. In

his appellate brief, Hemphill states that, at the time the hearing was supposed to commence,

the Government informed the court that its witness, Charlotte-Mecklenburg Police

Department Officer Christopher Todd Martin, had not arrived. According to Hemphill,

despite the Government stating that the sentencing hearing could proceed without Martin,

the court improperly delayed the hearing until Martin’s arrival at 2:30 p.m. Hemphill

argues that the district court abused its discretion by improperly delaying the hearing for a

witness the Government informed the court it did not need.

Because Hemphill did not preserve the issue for appeal by raising in the district

court his challenge to the delay, our review is for plain error. United States v. Aplicano-

Oyuela, 792 F.3d 416, 422 (4th Cir. 2015). “Establishing plain error requires a defendant

to demonstrate (1) an error was made; (2) the error is plain; (3) the error affects substantial

rights; and (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Gillespie, 27 F.4th 934, 940 (4th Cir.) (internal

2 USCA4 Appeal: 22-4109 Doc: 24 Filed: 02/01/2023 Pg: 3 of 5

quotation marks omitted), cert. denied, 143 S. Ct. 164 (2022). We conclude that Hemphill

fails to meet this standard.

First, Hemphill’s claims are unsubstantiated as he fails to cite to anything in the

record on appeal supporting his contentions that there was a 30-minute delay or the reason

for the delay. Second, assuming arguendo that the district court sua sponte delayed the

hearing for 30 minutes to allow for a witness’ arrival, this brief delay was well within the

district court’s discretion. See United States v. Janati, 374 F.3d 263, 273 (4th Cir. 2004)

(stating that “district courts have wide-ranging control over management of their dockets”

and that “[t]he scope of the district court’s discretion . . . is and must be particularly broad”).

We discern no error, plain or otherwise, in any such delay.

Turning to Hemphill’s challenge to the two-level enhancement under USSG

§ 3C1.2, we “review all sentences . . . under a deferential abuse-of-discretion standard.”

Gall v. United States, 552 U.S. 38, 41 (2007). “A sentence based on an improperly

calculated [Sentencing] Guidelines range is procedurally unreasonable.” United States v.

Shephard, 892 F.3d 666, 670 (4th Cir. 2018). “In assessing whether a district court

properly calculated the Guidelines range, including its application of any sentencing

enhancements, this Court reviews the district court’s legal conclusions de novo and its

factual findings for clear error.” United States v. Pena, 952 F.3d 503, 512 (4th Cir. 2020)

(internal quotation marks omitted). “[C]lear error exists only when the reviewing court on

the entire evidence is left with the definite and firm conviction that a mistake has been

committed.” United States v. Slager, 912 F.3d 224, 233 (4th Cir. 2019) (internal quotation

marks omitted).

3 USCA4 Appeal: 22-4109 Doc: 24 Filed: 02/01/2023 Pg: 4 of 5

Section 3C1.2 prescribes a two-level enhancement “[i]f the defendant recklessly

created a substantial risk of death or serious injury to another person in the course of fleeing

from a law enforcement officer.” USSG § 3C1.2. Conduct is “reckless” when the

defendant “was aware of the risk created by his conduct and the risk was of such a nature

and degree that to disregard that risk constituted a gross deviation from the standard of care

that a reasonable person would exercise in such a situation.” USSG §§ 2A1.4 cmt. n.1,

3C1.2 cmt. n.2. “At sentencing, the Government had to show by a preponderance of the

evidence that the [§ 3C1.2] enhancement applied.” United States v. Arbaugh, 951 F.3d

167, 173 (4th Cir. 2020).

We conclude that the district court did not clearly err in finding that the Government

met its burden of establishing by a preponderance of the evidence that Hemphill shifted his

vehicle into gear and stepped on the gas pedal in the course of fleeing from law enforcement

during a traffic stop and, in so doing, created a substantial risk of death or serious injury to

others. In reaching this decision, the district court relied on the video footage of the

incident from another officer’s body camera and credited Officer Martin’s testimony. The

court acknowledged Hemphill’s expressed reluctance to comply with the officers’ repeated

requests to exit his vehicle due to fear because it was nighttime and he was a black male

surrounded by police officers. However, the court also found that Hemphill had motive to

flee because he was a convicted felon with a gun in his car and he was prohibited from

possessing a firearm; additionally, the court reasonably inferred that Hemphill knew there

was an ongoing investigation into recent shootings into occupied buildings “and that he did

not like the direction the police investigation was going in.” Hemphill’s arguments that

4 USCA4 Appeal: 22-4109 Doc: 24 Filed: 02/01/2023 Pg: 5 of 5

the court’s factual findings are not consistent with the evidence presented at the sentencing

hearing are without merit.

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