United States v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40923 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH JOHNSON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:99-CR-130-ALL -------------------- May 17, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Kenneth Johnson appeals the 180-month sentence imposed by the

district court after he pleaded guilty to carjacking in violation

of 18 U.S.C. § 2119. Johnson argues that the district court erred

by (1) increasing his offense level because the victim suffered

serious bodily injury; (2) increasing his offense level for

obstruction of justice based on his escape from the back of the

police car; (3) increasing his offense level for use of a dangerous

weapon -- the car; and (4) denying him a reduction in offense level

for acceptance of responsibility.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-40923 -2-

We review the district court’s application of the Sentencing

Guidelines de novo. United States v. Price, 149 F.3d 352, 353 (5th

Cir. 1998). The court’s findings of fact are reviewed for clear

error. Id.

Section 2B1.3(b)(3), U.S.S.G., provides that with respect to

the offense of robbery, a defendant’s offense level is increased by

four levels if the victim sustained serious bodily injury.

“Serious bodily injury” means injury (1) involving extreme physical

pain or the protracted impairment of a bodily member, organ, or

mental faculty; or (2) requiring medical intervention such as

surgery, hospitalization, or physical rehabilitation. § 1B1.1,

comment (n.1(j)). As noted by the district court, the victim wore

a prosthesis for at least several months after the incident, and

she went back to the hospital two days after the incident to get

more pain medication. The district court did not clearly err in

determining that the victim suffered serious bodily injury under

the guidelines.

The obstruction-of-justice adjustment applies to defendants

whose conduct includes the “escaping or attempting to escape from

custody before trial or sentencing.” § 3C1.1(n.4(e)). However,

conduct involving “avoiding or fleeing from arrest” does not

ordinarily warrant the adjustment. § 3C1.1(n.5(d)). “Flight

alone” may constitute obstruction of justice under § 3C1.1, “even

if such flight closely follows the defendant’s arrest.” See United

States v. Huerta, 182 F.3d 361, 365 (5th Cir. 1999), cert. denied,

528 U.S. 1191 (2000). No. 00-40923 -3-

After being arrested, handcuffed, and placed in the rear seat

of the police car, Johnson freed himself from the handcuffs, kicked

out the window of the police car, and escaped. Thus, even assuming

that this court would consider whether a defendant’s acts were

“spontaneous and instinctive” rather than “calculated” in making an

obstruction determination, Johnson would not benefit from such

consideration. Cf United States v. Draves, 103 F.3d 1328, 1336-37

(7th Cir. 1997)(defendant was left unattended in the back of a

patrol car fled); United States v. Garcia, 909 F.2d 389, 390-91

(9th Cir. 1990)(defendant “bolted” into a nearby field after a

traffic stop). The district court did not err by assessing the

obstruction-of-justice enhancement.

With regard to Johnson’s contention that the Government failed

to prove that he used the vehicle as a weapon, or that he intended

to cause injury, § 2B3.1(b)(2)(D) provides that if a dangerous

weapon is “otherwise used” during the commission of a robbery, the

defendant’s offense level is increased by four levels. A

“dangerous weapon” means “an instrument capable of inflicting death

or serious bodily injury.” § 1B1.1, comment (n.1(d)). “Otherwise

used” means conduct “more than brandishing, displaying, or

possessing[.]” § 1B1.1, comment (n.1(g)).

Factual findings made in a presentence report are presumed

reliable absent rebuttal evidence demonstrating their

unreliability. United States v. Franklin, 148 F.3d 451, 460 (5th

Cir. 1998). Other than his self-serving assertions otherwise,

Johnson presented no evidence to rebut the presentence report’s

account of how the victim’s foot was run over. Based on such No. 00-40923 -4-

account, the district court did not err by enhancing Johnson’s

sentence under § 2B3.1(b)(2)(D). Cf. United States v. Morris, 131

F.3d 1136, 1139 (5th Cir. 1997).

Johnson also has not shown that the district court clearly

erred by denying him a decrease in offense level based on

acceptance of responsibility. Conduct resulting in an obstruction-

of-justice enhancement ordinarily indicates that the defendant has

not accepted responsibility for his criminal conduct. § 3E1.1,

comment(n.4). Moreover, it is appropriate to consider whether a

defendant has voluntarily withdrawn from criminal conduct in

determining whether he qualifies for the acceptance-of-

responsibility adjustment. § 3E1.1, comment(n.1(b)); see United

States v. Rickett, 89 F.3d 224, 227 (5th Cir. 1996)(pretrial drug

use). The judgment of the district court is AFFIRMED.

AFFIRMED.