United States v. John Mudlock

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 10, 2020
• Docket: 20-4100
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4100

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN ANDREW MUDLOCK,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:19-cr-00083-WO-1)

Submitted: August 11, 2020 Decided: September 10, 2020

Before HARRIS, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert C. Trenkle, EDWARDS & TRENKLE, PLLC, Pittsboro, North Carolina, for Appellant. Matthew G.T. Martin, United States Attorney, Tanner L. Kroeger, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

John Andrew Mudlock appeals from his 48-month sentence imposed pursuant to his

guilty plea to possession of a firearm by a convicted felon. On appeal, he challenges the

district court’s enhancements for possession of the firearm in connection with another

felony offense, pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B), and

creating a substantial risk of serious bodily injury to a law enforcement officer, pursuant to

USSG § 3A1.2(c)(1). We affirm.

We review any criminal sentence, “whether inside, just outside, or significantly

outside the Guidelines range,” for reasonableness, “under a deferential abuse-of-discretion

standard.” United States v. King, 673 F.3d 274, 283 (4th Cir. 2012); see Gall v. United

States, 552 U.S. 38, 41, 51 (2007). The first step in this review requires this court to ensure

that the district court committed no “significant procedural error.” King, 673 F.3d at 283

(internal quotation marks omitted). “Significant procedural errors” include “failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552

U.S. at 51.

Generally, when reviewing a district court’s application of the Guidelines, we

review the district court’s legal conclusions de novo and its factual conclusions for clear

error. United States v. Allen, 909 F.3d 671, 677 (4th Cir. 2018), cert. denied, 139 S. Ct.

1575 (2019). A Guidelines miscalculation generally justifies resentencing under the

2 correct Guidelines range. See Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908

(2018).

Section 2K2.1(b)(6)(B) prescribes a four-level enhancement to a defendant’s

offense level when the defendant “used or possessed any firearm or ammunition in

connection with another felony offense.” USSG § 2K2.1(b)(6)(B). For purposes of USSG

§ 2K2.1(b)(6)(B), “another felony offense” is “any federal, state, or local offense, other

than the . . . firearms possession . . . offense, punishable by imprisonment for a term

exceeding one year, regardless of whether a criminal charge was brought, or a conviction

obtained.” USSG § 2K2.1 cmt. n.14(C). “The government bears the burden of proving

the facts supporting the enhancement by a preponderance of the evidence.” United

States v. Andrews, 808 F.3d 964, 968 (4th Cir. 2015). “Sentencing judges may find facts

relevant to determining a Guidelines range by a preponderance of the evidence,” United

States v. Cox, 744 F.3d 305, 308 (4th Cir. 2014) (internal quotation marks omitted), that is,

the court must find these facts “more likely than not” to be true, United States v. Kiulin,

360 F.3d 456, 461 (4th Cir. 2004).

In this case, Mudlock pointed a firearm at an on-duty law enforcement officer,

responding to a call from Mudlock’s wife that Mudlock had a firearm and was acting

strangely. Given the circumstances of this case, the district court concluded that Mudlock’s

conduct constituted a felony offense under North Carolina law. See N.C. Gen. Stat. 14-34.5

(felony assault with a firearm on law enforcement); North Carolina v. Haynesworth, 553

S.E.2d 103, 109 (N.C. App. 2001) (“[T]he elements required for conviction of the crime of

assault with a firearm on a law enforcement officer are (1) an assault; (2) with a firearm;

3 (3) on a law enforcement officer; (4) while the officer is engaged in the performance of his

or her duties.”).

However, Mudlock asserts that assault was not proven because Mudlock did not

know that the people on his property were law enforcement personnel. * Prior to the

sentencing hearing, Mudlock acknowledged to a psychiatrist who evaluated him that, on

the night in question, he may have been contemplating suicide by cop. Further, Mudlock

knew that night that his wife wanted him to get help at the hospital after they had an

argument. He was also aware that people holding flashlights were searching the yard.

Finally, Mudlock also committed an assault after one of the officers announced himself.

After Deputy Brandon Bolick informed Mudlock that he was a police officer, Mudlock did

not immediately respond by dropping the gun; instead, he stated that he would kill Bolick

if he approached. Moreover, moments later, when Mudlock leaned out from behind a shed,

after having pointed a gun directly at Bolick, he put Bolick in reasonable apprehension of

serious bodily harm.

Thus, we find that Mudlock’s possession of the firearm at issue in this case was

committed in connection with another felony offense—felonious assault of a law

enforcement officer under North Carolina law. Accordingly, the enhancement under

USSG § 2K2.1(b)(6)(B) was not error.

* Mudlock also challenges the credibility of the officer who testified at the sentencing hearing. However, our review of the transcript shows that the district court’s credibility determinations were not clearly erroneous.

4 An adjustment under USSG § 3A1.2(c)(1) applies if a defendant knowingly

assaulted a law enforcement officer, in the course of his offense or during immediate flight,

“in a manner creating a substantial risk of serious bodily injury.” Application Note 4(A)

states that “[s]ubsection (c) applies in circumstances tantamount to aggravated assault”

against a law enforcement officer or prison official, and that “its applicability is limited to

assaultive conduct against such official victims that is sufficiently serious to create at least

‘a substantial risk of serious bodily injury.’”

Mudlock asserts that the evidence at the sentencing hearing did not support the

finding that his actions created a substantial risk of injury, given that he never fired his

weapon and that he was the only one injured. However, as discussed above, Mudlock

assaulted a police officer, by pointing a firearm at him and threatening to shoot. We

conclude that the district court did not err in finding that such conduct created a substantial

risk of injury to the officer.

As such, the district court did not err in applying the challenged enhancements.

Accordingly, we affirm Mudlock’s sentence. 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