USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 1 of 29
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-4284
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PATRICK VAUGHN MITCHELL,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, District Judge. (4:21-cr-00046-BO-1)
Argued: May 5, 2023 Decided: August 17, 2023
Before RUSHING and BENJAMIN, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed in part, vacated, and remanded with instructions by published opinion. Judge Benjamin wrote the opinion, in which Judge Rushing joined as to Part II.A. and Senior Judge Keenan joined as to Part II.B. Judge Rushing wrote an opinion concurring in part and dissenting in part. Senior Judge Keenan wrote an opinion concurring in part and dissenting in part.
ARGUED: Andrew DeSimone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Katherine Simpson Englander, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 2 of 29
Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
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DEANDREA GIST BENJAMIN, Circuit Judge:
Patrick Mitchell pled guilty without a plea agreement to possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2). At issue in this
appeal is the district court’s application of two enhancements to Mitchell’s Sentencing
Guidelines offense level. First, the court applied a four-level enhancement for possession
of a firearm in connection with another felony offense, specifically felony possession of
drugs, under U.S.S.G. § 2K2.1(b)(6)(B). Second, the court applied a six-level
enhancement for the knowing creation of a substantial risk of serious bodily injury to a law
enforcement officer under U.S.S.G. § 3A1.2(c)(1). For the reasons set forth below, we
affirm the application of the six-level enhancement. As to the four-level enhancement,
because the court made no findings connecting Mitchell’s possession of a firearm to his
felony drug possession, we vacate Mitchell’s sentence and remand for resentencing.
I.
A.
On March 29, 2021, the Kinston Police Department received a report about an
unresponsive man in a car in Kinston, North Carolina with a handgun in his lap. Officers
arrived at the car after 11:00 p.m. and found it located on a rural road in a secluded area.
The car was stopped at a stop sign with the engine running and brake lights on. Officers
discovered Mitchell in the car, non-responsive and slumped over in the driver seat with a
gun in his right hand. Police cars with activated flashing blue lights were stationed in front
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of Mitchell’s car. “[A] half dozen” police officers dressed in uniform were positioned
around the car. (J.A. 023)
An officer unlocked the passenger side door and removed the gun from Mitchell’s
hand. Mitchell remained unconscious. Officer McKinley Jones testified that an officer
shook Mitchell from the passenger side. Mitchell began to awaken. Jones opened the
driver side door and announced police presence. He tried to unbuckle Mitchell’s seatbelt
and to remove Mitchell from the car, startling Mitchell. Police officers announced their
presence and instructed Mitchell to get out of the car, but Mitchell stared at them. Jones
attempted to forcibly remove Mitchell from the car at which point Mitchell twice punched
him in the face with a fist. Once hit, Jones fell and hit his face. Jones threw his “arm up
to block any more strikes. [Mitchell] then struck [his] arm multiple times.” (J.A. 038).
Meanwhile, officers loudly announced police presence, but cautioned, “keep in mind he’s
incoherent.” Officers verbally commanded Mitchell to exit the car, or else they would tase
him. Moments later, officers tased Mitchell and dragged him out of the car.
Officer Trevor Normile testified that Mitchell appeared to be intoxicated and
smelled like alcohol. He searched Mitchell and retrieved a small plastic baggie from
Mitchell’s pants pocket that contained a white substance. Normile “associated [the
substance] immediately with crack cocaine” or something similar. (J.A. 045). He could
not recall if the drugs were in rock or powder form, or whether they had been field tested.
Later that night, Mitchell admitted possession of the drugs and the firearm—“I’ll take the
gun and the cocaine but not the DWI.” (J.A. 049–50). The gun was reported stolen out of
North Carolina.
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B.
Mitchell was indicted on one count of possession of a firearm by a felon in violation
of 18 U.S.C. § § 922(g)(1) and 924(a)(2). He pled guilty to the charge in the indictment.
The presentence report (PSR) calculated Mitchell’s base offense level as 14 because
Mitchell was a felon when he committed the offense. It applied a two-level enhancement
for the stolen firearm under U.S.S.G. § 2K2.1(b)(4)(A). In addition, it applied a four-level
enhancement for possession of a firearm in connection with another felony offense, felony
possession of cocaine, under U.S.S.G. § 2K2.1(b)(6)(B). Last, it applied a six-level
enhancement for assault of a law enforcement officer that created a substantial risk of
serious bodily injury under U.S.S.G. § 3A1.2(c)(1). Application of the enhancements
increased Mitchell’s base level offense to 26. The total offense level was ultimately
reduced to 23 because Mitchell accepted responsibility and pled guilty. The report
calculated Mitchell’s criminal history category as IV with an advisory Guidelines range of
70 to 87 months of imprisonment.
Mitchell objected to the PSR’s application of the six-level enhancement under
§ 3A1.2(c)(1) for the knowing assault of a law enforcement officer on the ground he was
incoherent at the time and did not intend to assault an officer. The PSR applied the
enhancement because Mitchell punched an officer “twice in the face” after police
announced their presence. (J.A. 094). Mitchell also objected to the PSR’s application of
the four-level enhancement under § 2K2.1(b)(6)(B) on the ground he did not possess a
firearm in connection with another felony offense. The PSR applied this enhancement
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because officers removed a gun from Mitchell’s hand and recovered three grams of cocaine
from his pants pocket.
At sentencing, Mitchell renewed his objections to the PSR’s application of the six-
level enhancement under § 3A1.2(c)(1) and the four-level enhancement under
§ 2K2.1(b)(6)(B). The district court reviewed body camera footage, heard testimony from
officers Jones and Normile, and questioned the officers about the underlying assaultive
conduct. The parties agreed the “other felony offense” for purposes of the
§ 2K2.1(b)(6)(B) four-level enhancement was drug possession. (J.A. 027). Mitchell’s
counsel acknowledged Mitchell had drugs and alcohol in his system and that he possessed
a firearm because “unfortunately, he drives a truck at night in Kinston . . . .” (J.A. 022).
After the court reviewed the evidence and heard testimony, it overruled Mitchell’s
objections, and applied the six-level enhancement under § 3A1.2(c)(1) and the four-level
enhancement under § 2K2.1(b)(6)(B). The court concluded Mitchell possessed the firearm
in furtherance of another felony offense, and determined the firearm enhancement was
adequately supported by the evidence and testimony. (J.A. 053). It concluded Mitchell’s
“behavior and conduct created a substantial risk of serious bodily injury to the law
enforcement officers at the scene.” (Id.). The court adopted the findings of the PSR and
found the PSR adequately supported the advisory Guidelines range of 70 to 87 months of
imprisonment. The court sentenced Mitchell to 84 months of imprisonment.
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II.
On appeal, Mitchell argues the district court erred when it applied a six-level
enhancement under § 3A1.2(c)(1) and a four-level enhancement under § 2K2.1(b)(6)(B) to
his Guidelines range. He contends the evidence does not support application of either
enhancement, and that the court failed to state factual findings to support application of the
enhancements.
We review criminal sentences for abuse of discretion to determine whether they are
reasonable. Gall v. United States, 552 U.S. 38, 46 (2007). We must first “ensure that the
district court committed no significant procedural error.” Id. at 51. If the district court
commits a “significant procedural error” in sentencing, we must vacate and remand for
resentencing. United States v. Carter, 564 F.3d 325, 328–30 (4th Cir. 2009) (internal
citations omitted).
Procedural errors include “failing to calculate (or improperly calculating) the
Guidelines range . . . selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence . . . .” Id. When rendering a sentence, the district
court must place on the record an “ ‘individualized assessment’ ” based on the particular
facts of the case before it.” Id. Such a making of the record is critical, because “[i]n
reviewing this assessment, an appellate court may not guess at the district court’s rationale,
searching the record for statements by the Government or defense counsel or for any other
clues that might explain a sentence.” Carter, 564 F.3d at 329–30.
In assessing whether the district court properly calculated the Guidelines range, we
review the court’s factual findings for clear error and its legal conclusions de novo. United
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States v. Hampton, 628 F.3d 654, 659 (4th Cir. 2010). We will not disturb the district
court’s findings unless we are “left with the definite and firm conviction that a mistake has
been committed.” United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007) (internal
citations omitted). However, if the district court fails to explain its rationale, then the
clearly erroneous standard does not guide our review on appeal. United States v. Wilkinson,
590 F.3d 259, 269–70 (4th Cir. 2010) (concluding that the district court’s failure to explain
its reasoning made the court’s finding “incapable of meaningful appellate review”).
Rather, when the district court commits such procedural error, we may confidently assume
the district court’s fact-finding role only if it is “so obvious” from the record that the
enhancement should be applied. United States v. Bolden, 964 F.3d 283, 288 (4th Cir.
2020).
We first consider whether the district court erred when it applied a six-level
enhancement under U.S.S.G. § 3A1.2(c)(1) for the knowing assault of a law enforcement
officer that created a substantial risk of serious bodily injury. The Guidelines allow for a
six-level enhancement to a defendant’s offense level if the defendant “in a manner creating
a substantial risk of serious bodily injury,” and “knowing or having reasonable cause to
believe that a person was a law enforcement officer, assaulted such officer during the
course of the offense or immediate flight therefrom.” U.S.S.G. § 3A1.2(c)(1). The
Government must prove the applicability of a sentencing enhancement by a preponderance
of the evidence. United States v. Adepoju, 756 F.3d 250, 257 (4th Cir. 2014).
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The Guidelines instruct, in Application note 4(A) that the provision applies in
circumstances “tantamount to aggravated assault.” U.S.S.G. § 3A1.2 cmt. n. 4(A). Under
Application note 4(B), “ ‘[s]ubstantial risk of serious bodily injury’ includes any more
serious injury that was risked, as well as actual serious bodily injury . . . .” U.S.S.G.
§ 3A1.2 cmt. n. 4(B). The Guidelines define “serious bodily injury” as “injury involving
extreme physical pain or the protracted impairment of a function of a bodily member,
organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization,
or physical rehabilitation.” U.S.S.G. § 1B1.1 cmt. n. 1(M).
1.
Mitchell contends the district court erred when it applied § 3A1.2(c)(1) because it
failed to state findings sufficient to support application of the enhancement. We must
ensure the district court did not commit “significant procedural error” in sentencing
Mitchell. Carter, 564 F.3d at 328 (internal citations omitted). In rendering a sentence, the
district court must place on the record an “ ‘individualized assessment’ based on the
particular facts of the case before it.” Id. at 330. Such a making of the record is critical,
because “[i]n reviewing this assessment, an appellate court may not guess at the district
court’s rationale, searching the record for statements by the Government or defense counsel
or for any other clues that might explain a sentence.” Id. at 329–30.
In the present case, at sentencing, the district court reviewed evidence related to the
application of § 3A1.2(c)(1). The court reviewed body camera footage and noted it showed
there were “a half dozen” police officers present. (J.A. 023). The court heard witness
testimony from responding officers related to Mitchell’s conduct during the incident and
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actively questioned each witness about the facts underlying application of § 3A1.2(c)(1).
It clarified that officers were dressed in uniform and Jones announced police presence
before he entered the car. It ascertained that Jones was positioned with his upper body in
the car when Mitchell struck. In addition, the court clarified the nature of Mitchell’s strikes
as a fist punch to the face that caused Jones to fall, hit his face, and throw his arms up to
block Mitchell’s additional strikes.
After the court reviewed the evidence and heard testimony, it applied § 3A1.2(c)(1).
It concluded Mitchell’s “behavior and conduct created a substantial risk of serious bodily
injury to law enforcement officers.” (J.A. 053). It adopted the findings of the PSR, which
applied § 3A1.2(c)(1) based on Mitchell’s resistance to officers and that he punched an
officer twice in the face after police announced their presence.
We determine the district court did not procedurally err for failing to make adequate
factual findings underlying application of the § 3A1.2(c)(1). First, the court developed a
factual record underlying the necessary elements of § 3A1.2(c)(1) through its active
questioning of Jones and Normile. Second, the court adopted the findings of the PSR that
applied the enhancement based on Mitchell’s resistance to officers and his two punches to
an officer’s face after police identified themselves. Third, the court concluded Mitchell’s
“behavior and conduct did create a substantial risk of serious bodily injury to law
enforcement officers.” (J.A. 053).
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2.
We next address Mitchell’s argument the district court erred when it applied
§ 3A1.2(c)(1) to his Guidelines range because the evidence is insufficient to support
application of the enhancement. He first contends there is insufficient evidence to show
he consciously assaulted a law enforcement officer because he reflexively struck Jones
while incoherent and did not intend to strike anyone. In assessing whether the district court
properly calculated the Guidelines range, we review the court’s factual findings for clear
error and its legal conclusions de novo. United States v. Hampton, 628 F.3d 654, 659 (4th
Cir. 2010).
While the Guidelines do not define the word “assault,” this Court analyzed the
common meaning and common law definition of the word for purposes of § 3A1.2(c)(1).
Hampton, 628 F.3d at 660–61. Common law assault consisted of either attempted battery
or the “deliberate infliction upon another of a reasonable fear of physical injury.” Id. at
660 (citing United States v. Delis, 558 F.3d 177, 180–81 (2d Cir. 2009) (internal citations
omitted)). Common law battery consisted of “the unlawful application of force to the
person of another and required no specific intent to commit the act.” Id. This Court
observed that over the years, a battery has generally been considered as a completed assault,
and thus an assault is necessarily included in every battery. Id. Ultimately, this Court held
battery of a law enforcement officer satisfies the assault requirement under § 3A1.2(c)(1).
Hampton, 628 F.3d at 661.
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In the present case, the evidence in the record is inconsistent with Mitchell’s
contention that his actions were just a reflex. Officers woke Mitchell from
unconsciousness at which point he twice punched Jones in the face. Jones used his arm to
block Mitchell’s additional strikes to his arms. Mitchell’s conduct does not consist of one
reflexive swing of a fist, but to the contrary consists of multiple strikes after he was
awakened by law enforcement.
The Seventh Circuit inferred the requisite intent to cause harm for purposes of an
assault under § 3A1.2(c)(1) where the defendant threw two punches aimed at a police
officer’s head where the defendant failed to cease after the first punch. United States v.
Alexander, 712 F.3d 977, 979 (7th Cir. 2013). In addition, the Second Circuit noted that
punching an officer constitutes a battery. Delis, 558 F.3d at 180 (defining battery as “the
unlawful beating of another” and noting that “[t]he least touching of another’s person
willfully, or in anger, is a battery”) (internal citations omitted)). Battery is a general intent
crime that requires only the intentional performance of the unlawful act. Id. at 180. In
United States v. Hampton, this Court established that battery of a law enforcement officer
satisfies the assault requirement under § 3A1.2(c)(1). 628 F.3d at 661.
With these principles in mind, we conclude the evidence on this record establishes
that Mitchell’s conduct encompassed the requisite intent to satisfy § 3A1.2(c)(1)’s assault
requirement where Mitchell did not simply throw one reflexive punch at Jones but threw
repeated punches to his head and arms.
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Next, Mitchell contends there is no evidence to support a finding that he knowingly
struck a law enforcement official pursuant to § 3A1.2(c)(1). In an unpublished decision,
this Court held that flashing blue lights on a police cruiser constituted sufficient evidence
to identify the car as an official vehicle to support the § 3A1.2(c)(1) enhancement. United
States v. Cyrus, 238 F. App’x 929, 931 (4th Cir. 2007) (No. 06-4380) (upholding
§ 3A1.2(c)(1) where defendant drove into police cars with flashing blue lights while
attempting to evade arrest). In addition, the Seventh Circuit held that a defendant becomes
aware he is dealing with police officers for purposes of § 3A1.2(c)(1) when officers are
dressed in uniform and identify themselves by shouting “police.” United States v.
Robinson, 537 F.3d 798, 802 (7th Cir. 2008).
In the case before us, after Mitchell was awake, police officers and police cars
identified the presence of law enforcement, which establishes Mitchell had reasonable
cause to know officials were present for purposes of § 3A1.2(c)(1). The district court noted
“a half dozen” police officers dressed in uniform were present. (J.A. 023). Police cars
with activated flashing blue lights were positioned in front of Mitchell’s car, and Normile
testified they were positioned in Mitchell’s field of view. Jones unbuckled Mitchell’s
seatbelt and announced police presence. Mitchell stared at them. Jones tried to forcibly
remove Mitchell from the car which “startled” him, and he began to punch Jones. (J.A.
027, 038). During the assault, police announced themselves loudly and repeatedly. On
this record, we conclude that after Mitchell was awakened from unconsciousness, he had
reasonable cause to know he assaulted a police officer for purposes of § 3A1.2(c)(1)
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through the presence of police cars with flashing blue lights, multiple officers dressed in
uniform, and officers announcing their presence immediately before and during the assault.
c.
Last, Mitchell contends he did not create a substantial risk of serious bodily injury
to law enforcement under § 3A1.2(c)(1) because he only committed an unarmed simple
battery that did not result in actual injury. In an unpublished decision, this Court noted that
simple assault on a law enforcement officer during flight is insufficient to warrant
application of the § 3A1.2(c)(1) enhancement. See United States v. Cooper, 185 F. App’x.
286, 288 (4th Cir. 2006) (No. 04-4377) (upholding § 3A1.2 where defendant possessed a
firearm immediately prior to encounter with police officer, struck officer in the face, and
firearm later discharged). But a defendant may still create a substantial risk of serious
bodily injury to law enforcement for purposes of § 3A1.2(c)(1) when the defendant assaults
an officer while unarmed. The Seventh Circuit in United States v. Alexander, upheld
application of § 3A1.2(c)(1) where the defendant did not possess a firearm or struggle for
a firearm, but instead threw two punches aimed at a police officer’s head. 712 F.3d at 978–
79. In addition, the Sixth Circuit declined to limit application of § 3A1.2(c)(1) solely to
scenarios where the victim is physically injured. It held that bodily injury is not a
prerequisite for the enhancement under § 3A1.2(c)(1) to apply. See United States v. Pruitt,
999 F. 3d 1017, 1022 (6th Cir. 2021).
In the case before us, the PSR applied § 3A1.2(c)(1) based on the fact Mitchell
resisted officers and punched Jones twice in the face after police announced their presence.
Jones testified that during the assault he fell and hit his face and used his arm to shield
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himself from Mitchell’s additional strikes. As little as one punch to the head by an unarmed
person may cause a substantial risk of serious bodily injury within the meaning of the
Guidelines. Alexander, 712 F.3d at 978–79. Although Jones did not testify to actual injury,
actual injury is not a requirement for § 3A1.2(c)(1) to apply. See, e.g., Pruitt, 999 F. 3d at
1022; U.S.S.G. § 3A1.2 cmt. n. 4(B) (stating that “ ‘[s]ubstantial risk of serious bodily
injury’ includes any more serious injury that was risked, as well as actual serious bodily
injury . . . .”). We are convinced on this record that Mitchell’s conduct created a substantial
risk of serious bodily injury to law enforcement that satisfies § 3A1.2(c)(1).
In sum, we affirm application of the six-level enhancement under U.S.S.G.
§ 3A1.2(c)(1) because the district court’s factual findings are not clearly erroneous and
support application of the enhancement.
We next consider whether the district court erred when it applied a four-level
enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for use of a firearm in connection with
another felony offense. Mitchell argues the court procedurally erred when it applied the
§ 2K2.1(b)(6)(B) enhancement because it failed to find that the firearm facilitated his
possession of cocaine. He also asserts there is insufficient evidence to prove application
of the enhancement. We agree with Mitchell’s contention that the district court
procedurally erred when it failed to find the firearm facilitated or had the potential of
facilitating his possession of cocaine. The evidence in the record does not clearly support
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application of the enhancement, and therefore, we must vacate and remand for
resentencing. 1
The Guidelines provide for a four-level enhancement for possession of a firearm “in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B).
Section 2K2.1(b)(6)(B) applies when (1) the defendant committed another felony offense
and (2) the defendant used or possessed a firearm in connection with that offense. United
States v. Blount, 337 F.3d 404, 411 (4th Cir. 2003). The commentary to the Guidelines
provides that a defendant possesses a firearm “in connection with” another felony offense
if the firearm “facilitated, or had the potential of facilitating, another felony offense.”
U.S.S.G. § 2K2.1 cmt. n. 14(A).
In this Circuit, satisfying the “in connection with” requirement under
§ 2K2.1(b)(6)(B) “is not especially burdensome.” Bolden, 964 F.3d at 287. This Court
has found it satisfied when a firearm had “ ‘some purpose or effect’ with respect to the
other offense,” such as where the firearm was “ ‘present for protection or to embolden the
actor.’ ” United States v. Jenkins, 566 F.3d 160, 163 (4th Cir. 2009) (internal citations and
quotations omitted). But the Government cannot meet this burden “if the firearm was
present due to mere ‘accident or coincidence.’ ” Id. at 163.
1 In light of our conclusion the district court procedurally erred when it failed to make a facilitation finding under § 2K2.1(b)(6)(B), we need not reach the merits of Mitchell’s other argument that there is insufficient evidence he used the firearm in connection with another felony offense.
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When the other felony offense is a drug trafficking crime, a presumption in favor of
facilitation applies when the firearm and the drugs are found in close proximity to one
another; however, the presumption is lost when the other felony offense is simple drug
possession. Bolden, 964 F.3d at 287 (citing U.S.S.G. § 2K2.1 cmt. n.14(B)); see also
Jenkins, 566 F.3d at 163. When the other felony offense is simple drug possession, the
district court must find that the firearm facilitated or had the potential to facilitate the
defendant’s possession of illicit drugs under § 2K2.1(b)(6)(B). Id. Absent an express
finding of facilitation from the district court, we may affirm the enhancement only if it is
“so obvious” from the record that “we may [confidently] assume the district court’s fact-
finding role.” Bolden, 964 F.3d at 288.
In United States v. Jenkins, this Court affirmed the application of § 2K2.1(b)(6)(B)’s
four-level enhancement. 566 F.3d at 161, 164. The district court expressly found that “on
the facts [of that] case, . . . the gun [had] the potential of facilitating the possession of crack
cocaine.” Id. While the defendant possessed both the gun and the cocaine on his person
at the same time, the environment suggested a “heightened need for protection,” where the
defendant took a loaded gun and drugs onto a public city street around midnight. Id. Based
on the facts of the case, it was reasonable to infer the firearm “was present for protection
or to embolden.” Id. at 164 (internal citation omitted).
In contrast to Jenkins, in the present case, the district court overruled Mitchell’s
objection and applied the four-level enhancement under § 2K2.1(b)(6)(B) without making
a facilitation finding. It concluded the enhancement was “adequately supported by the
testimony and the evidence.” (J.A. 053). It adopted the findings of the PSR, which did not
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include a facilitation finding, and applied the enhancement because the gun was recovered
from Mitchell’s person in proximity to three grams of cocaine seized from his pants pocket.
Because the other felony offense in this case is a drug possession crime, and the district
court did not expressly find that the firearm facilitated, or had the potential to facilitate the
felonious possession of cocaine, our review under the clearly erroneous standard is
precluded. C.f. United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). We may
only affirm application of the enhancement if the potential for facilitation is “so obvious”
from the record such that we may assume the district court’s fact-finding role. Bolden, 964
F.3d at 288.
The facts of this case show officers retrieved a loaded gun from Mitchell’s hand
while he was slumped over and unconscious in his car on a rural road at night. Later that
night, officers recovered three grams of cocaine from his pants pocket. While Mitchell
carried the loaded gun and the drugs on his person contemporaneously, proximity alone
fails to establish that Mitchell’s possession of the gun was connected to his possession of
cocaine. See Jenkins, 566 F.3d at 163 (noting the different standards for drug trafficking
and drug possession crimes under the Guidelines). Unlike Jenkins, where the court
expressly found the gun had the potential to facilitate the defendant’s possession of cocaine
to embolden or protect, 556 F. 3d at 164, the district court in this case failed to make a
facilitation finding. 2 Absent such a finding, whether Mitchell’s possession of the gun
2 The first dissent cites Jenkins, 566 F.3d at 162 and United States v. Woods, 594 F. App’x 802, 804–805 (4th Cir. 2014) (No. 13-4945) for the proposition that the facilitation requirement is satisfied when a firearm is “present for protection or to embolden the actor” (Continued) 18 USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 19 of 29
facilitated, or had the potential to facilitate his possession of drugs to embolden or protect
is open to more than one interpretation.
For instance, the Government suggests the loaded gun had the potential to
embolden and protect Mitchell’s possession of cocaine because he carried both outside his
home while situated on a country road at night. But the record does not establish Mitchell
carried the loaded gun and the cocaine onto a public city street like the defendant in Jenkins,
566 F.3d at 164, such that we may plainly infer the gun emboldened or protected the illicit
possession of drugs. Instead, Mitchell possessed the loaded gun and the drugs while in his
car on a secluded and rural road. Also, Mitchell’s counsel suggested he carried the gun for
an alternate reason—because he drives a truck in Kinston, North Carolina. An appellate
court is prohibited from presuming the sentencing court has “silently adopted arguments
presented by a party.” Carter, 564 F.3d at 329.
Because the district court made no express finding of facilitation, and the gun’s
potential to facilitate the possession of cocaine is not “so obvious” from the record, we are
constrained to conclude that we are unable to review application of § 2K2.1(b)(6)(B).
and this Court has “consistently affirmed application of the Section 2K2.1(b)(6)(B) enhancement to defendants who carried both a firearm and cocaine near or on their person in public.” First Dissent Op., at 22. But the district court in those cases, unlike here, made an express facilitation finding and this Court applied the clear error standard of review. See Jenkins, 566 F.3d at 163; Woods, 594 Fed. App’x at 803–804. Clear error affords greater deference to the district court’s factual findings than the standard of review applicable here, where the district court failed to state factual findings to support application of the enhancement. In this instance, we may only affirm the district court’s fact-finding role if it is “so obvious” from the record that the enhancement should be applied. Bolden, 964 F.3d at 288.
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Bolden, 964 F.3d at 288. Without deciding whether the application of § 2K2.1(b)(6)(B) is
supported under the facts of the present case, we restate that the district court must first
evaluate whether evidence exists to support a finding that Mitchell’s possession of the gun
facilitated or had the potential to facilitate his possession of drugs. Bolden, 964 F.3d at
287; Jenkins, 566 F.3d at 164–65. It must place on the record an “ ‘individualized
assessment’ based on the particular facts of the case before it” because an appellate court
may not guess at the district court’s rationale in search of clues that may otherwise explain
a sentence. Wilkinson, 590 F.3d at 271 (internal citations omitted). Accordingly, we vacate
Mitchell’s sentence and remand for resentencing.
III.
For the reasons stated, we affirm in part, vacate Mitchell’s sentence, and remand for
resentencing consistent with this opinion.
AFFIRMED IN PART, VACATED, AND REMANDED WITH INSTRUCTIONS
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RUSHING, Circuit Judge, concurring in part and dissenting in part:
Around 11:30 p.m. on a Sunday night, Mitchell was intoxicated and passed out
behind the wheel of his car at a stop sign on a public street in the Kinston city limits. A
passerby noticed he was slumped over with a gun in his hand at the intersection and alerted
a nearby police officer in his cruiser. Testimony at Mitchell’s sentencing hearing revealed
that Mitchell was sitting in his car with a loaded gun in his right hand, resting on his lap.
Below the firearm, in his right pants pocket, Mitchell concealed a plastic baggie containing
3 grams of cocaine. The only explanation offered for the weapon at the hearing was that
Mitchell “drives a truck at night in Kinston” for work, implying that the streets of Kinston
are dangerous after dark. J.A. 22.
After hearing the evidence and actively questioning witnesses, the district court
found the enhancement for possessing a firearm in connection with another felony offense
“adequately supported by the testimony and the evidence.” J.A. 53; see U.S.S.G.
§ 2K2.1(b)(6)(B). The other felony offense, the parties agreed, was possession of cocaine,
so the enhancement could apply only if the firearm “facilitated, or had the potential of
facilitating,” that possession. U.S.S.G. § 2K2.1 cmt. n.14(A). Because the potential for
facilitation on these facts is “so obvious” under our precedent, I would affirm. United
States v. Bolden, 964 F.3d 283, 288 (4th Cir. 2020).
“We have repeatedly held, as have our sister circuits, that possessing a firearm may
give a sense of security that emboldens a person to venture from his or her home with
valued drugs that another person might want to steal.” United States v. Woods, 594 Fed.
App. 802, 804–805 (4th Cir. 2014) (per curiam). Because the facilitation requirement is
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satisfied when a firearm is “present for protection or to embolden the actor,” we have
consistently affirmed application of the Section 2K2.1(b)(6)(B) enhancement to defendants
who carried both a firearm and cocaine near or on their person in public. United States v.
Jenkins, 566 F.3d 160, 162 (4th Cir. 2009) (internal quotation marks omitted). For
example, in Jenkins, we found the enhancement supported where the defendant possessed
a loaded revolver and 0.29 grams of cocaine on a public street close to midnight. Id. at
161, 164. In Woods, we found the enhancement supported where the defendant went to a
bar with a loaded handgun in his waistband and 3.75 grams of cocaine in the cuff of his
pants leg. 594 Fed. App. at 803, 805. And in United States v. Maddox, we found the
enhancement supported when cocaine was located on the driver’s side floorboard of the
vehicle the defendant had been driving, “in close proximity to” the defendant’s firearm.
440 Fed. App. 219, 220 (4th Cir. 2011) (per curiam).
Likewise here, Mitchell’s possession of a loaded gun in his hand had the purpose or
effect of emboldening him to carry 3 grams of cocaine in his pocket on a public street late
at night. Indeed, it “strains credulity” to interpret the facts any other way. Id. This is not
a case of “proximity alone,” as the majority claims. Supra, at 18. Rather, Mitchell carried
both the loaded gun and the cocaine on his person in public at night, a context we have
repeatedly concluded supports an inference that the firearm emboldened and protected the
defendant’s drug possession. More than that, the police officers found Mitchell with the
loaded gun in his hand—it was “accessible and ready for use,” which “further suggests that
it was present for protection or to embolden” him. Jenkins, 566 F.3d at 164 (internal
quotation marks omitted). Although Mitchell’s counsel suggested he carried the gun
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because driving a truck in Kinston is dangerous, Mitchell was no longer driving his truck
when the officers found him but was in his personal vehicle. Even if the presence of a gun
secured in Mitchell’s car on his drive home from work might be merely coincidental, the
presence of that gun loaded and in his hand is not. The only things Mitchell could have
sought to protect with the gun at that point were himself and his personal property,
including the valuable cocaine in his pocket.
The majority attempts to distinguish Jenkins on the ground that Mitchell was (1) in
his car and (2) on a “secluded and rural road” instead of a “public city street.” Supra, at
19. Respectfully, these supposed differences cannot distinguish away our caselaw. See
Woods, 594 Fed. App. at 804 (rejecting “an unduly narrow reading of our decision in
Jenkins”). The defendant in Maddox was also in his car when stopped, yet we found the
enhancement appropriate even though the cocaine and gun were not on his person. See
440 Fed. App. at 220. While Kinston may not be as busy as Charleston after dark, this
intersection was within the city limits and undisputedly in a city dangerous enough that a
truck driver would carry a gun for protection. And however “secluded” the intersection
was, supra, at 19, it saw enough activity for a bystander both to spot Mitchell in his car and
to approach a nearby police officer to report the sighting. In these circumstances, the
presence of a loaded firearm in Mitchell’s right hand resting atop the 3 grams of cocaine
in his pocket was not the product of “accident or coincidence” but rather was “for
protection or to embolden” Mitchell in possessing his valuable drugs in public. Jenkins,
566 F.3d at 164 (internal quotation marks omitted).
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For these reasons, I respectfully dissent from Part II.B of the majority’s opinion.
But I agree with the majority’s decision to affirm application of the six-level enhancement
under U.S.S.G. § 3A1.2(c)(1), so I concur in Part II.A of that opinion.
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BARBARA MILANO KEENAN, Senior Circuit Judge, concurring in part and dissenting in part:
I am pleased to concur in Part II.B of the majority opinion addressing the four-level
enhancement for possessing a firearm “in connection with” another felony offense.
U.S.S.G. § 2K2.1(b)(6)(B). 1 However, I write separately with respect to Part II.A because,
in my view, the district court procedurally erred by failing to place on the record an
individualized assessment of the facts related to the six-level enhancement for knowingly
assaulting a law enforcement officer “in a manner creating a substantial risk of serious
bodily injury” (the official victim enhancement). U.S.S.G § 3A1.2(c)(1); United States v.
Wilkinson, 590 F.3d 259, 271 (4th Cir. 2010). Applying the limited scope of appellate
review permitted following such error, I would hold that it is not “so obvious” from the
record that the enhancement applies in this case. See United States v. Bolden, 964 F.3d
283, 288 (4th Cir. 2020).
In the district court, Mitchell objected to the application of the official victim
enhancement both in response to the presentence report (PSR) and at sentencing. The
district court did not engage with Mitchell’s objection, but merely concluded without
further explanation that Mitchell’s “behavior and conduct did create a substantial risk of
serious bodily injury to persons involved, the law enforcement officers.”
1 I agree with Judge Benjamin that Mitchell’s occupancy of his vehicle materially distinguishes the facts of this case from the facts in United States v. Jenkins, 566 F.3d 160 (4th Cir. 2009), in which the defendant carried a gun and cocaine in public.
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This brief conclusory statement is not an explanation. The district court’s general
reference to Mitchell’s “behavior and conduct” does not clarify why the district court
overruled Mitchell’s objection, what facts supported the conclusion that Mitchell knew that
Jones was a law enforcement officer, or what evidence showed that the assault itself created
a substantial risk of serious bodily injury. 2 As a court of review, it is not our function to
“guess at the district court’s rationale, searching the record for . . . any other clues that
might explain” the court’s sentencing decision. See United States v. Burnley, 988 F.3d
184, 190 (4th Cir. 2021) (omission in original) (citation omitted). Rather, when the district
court fails to provide a reasoned explanation, we typically vacate the defendant’s sentence
and remand for resentencing. See, e.g., Bolden, 964 F.3d at 289 (vacating sentence and
remanding for resentencing because the district court did not make a finding as to an
element of the sentencing enhancement, and did not indicate “why [it] might have thought”
the element was satisfied).
When, as here, the district court has procedurally erred, our review of the court’s
application of an enhancement is severely circumscribed. See Wilkinson, 590 F.3d at 269–
70. As the majority acknowledges in its analysis of the firearm enhancement, a district
court’s decision benefits from the more generous clear error standard only if the court
2 Unlike the majority, I am not convinced that the district court’s adoption of the factual findings in the PSR remedied these deficiencies. See Op., at 10; cf. United States v. Morgan, 942 F.2d 243, 246 (4th Cir. 1991) (holding that “if the district court decides to adopt the proposed findings in the presentence report as its resolution of disputed facts, the record must be clear regarding which disputed issues were resolved by the adoption”). The district court’s generic reference to the proposed findings in the PSR does not resolve the issues raised by Mitchell.
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explains why it reached its conclusion. Op., at 17; see United States v. Steffen, 741 F.3d
411, 415 (4th Cir. 2013) (describing the clearly erroneous standard). Otherwise, we apply
a more rigorous standard of review, affirming the district court only if the facts supporting
the enhancement are “so obvious from the record that we may assume the district court’s
fact-finding role ourselves.” Bolden, 964 F.3d at 288.
Considering the record in accordance with this narrower scope of review, I would
not address the application of the official victim enhancement in the present case. Even if
we assume that Mitchell knew Officer Jones was a law enforcement officer when he struck
him, it is not obvious from the record that Mitchell created a substantial risk of serious
bodily injury when he twice struck Officer Jones. 3
Unlike the majority, I am not persuaded that United States v. Cooper, 185 Fed.
App’x 286 (4th Cir. 2006) and United States v. Alexander, 712 F.3d 977 (7th Cir. 2013)
dictate the outcome of this appeal. 4 See Op., at 14. First, in those cases, the court reviewed
3 In its analysis, the majority additionally relies on testimony that Mitchell struck Officer Jones’ arm “multiple times” after Jones fell. Op., at 4, 12. But, contrary to this testimony, the adopted factual findings in the PSR fail to mention any additional strikes before Mitchell “lock[ed] his right hand to the steering wheel.” 4 The majority also cites United States v. Pruitt, 999 F.3d 1017, 1022 (6th Cir. 2021), for the proposition that the absence of actual bodily injury does not preclude application of the official victim enhancement. Op., at 14–15. I agree with this statement of law, and I also observe that the court’s other holding in Pruitt remains highly relevant to our analysis. There, the Sixth Circuit held that the district court failed to make the requisite factual findings and, accordingly, that it “must vacate the application of the official-victim enhancement” and remand for resentencing. Pruitt, 999 F.3d at 1025 (“We do not know whether the district court found that the requisite assault creating a substantial risk of serious harm occurred when [the defendant] grappled with [the officer] and sought to grab his firearm, or whether it occurred when [the defendant] turned towards [the officer] while (Continued) 27 USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 28 of 29
the application of the sentencing enhancement for clear error which, as noted above, applies
only if the district court has provided an explanation sufficient to enable appellate review.
See Cooper, 185 Fed. App’x at 287; Alexander, 712 F.3d at 978.
Moreover, material factual distinctions between this case and those cases limit their
relevance. In Cooper, the defendant got out of the car with a loaded gun, dropped the gun
during a brief struggle with an officer, and struck the officer twice in the face. See 185
Fed. App’x at 288. In Alexander, the defendant struck an officer in the head, tried to hit
the officer again, was wrestled to the ground, struggled to his feet, and fled before a police
dog caught and subdued him. See 712 F.3d at 978. The presence of a weapon in Cooper,
the defendant’s flight in Alexander, and the prolonged resistance in both cases distinguish
them from this case. Here, the officers removed Mitchell’s weapon while he was still
sleeping, and Mitchell did not attempt to flee the scene after he awakened. Additionally,
Mitchell was in his car, which was fixed in the “park” position, during the assault. And
immediately after striking Jones, Mitchell “lock[ed] his right hand to the steering wheel.”
Thus, the factual circumstances in Cooper and Alexander do not lend comparative support
for a conclusion that it was “so obvious” that Mitchell created a substantial risk of serious
bodily injury when he struck Officer Jones. 5 See Bolden, 964 F.3d at 288.
running away, and, if so, whether the district court found [the defendant] raised his weapon or repositioned it to hold it by the grip.”). 5 The majority also cites Alexander to support its statement that “[a]s little as one punch to the head by an unarmed person may cause a substantial risk of serious bodily (Continued) 28 USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 29 of 29
For these reasons, I would vacate the district court’s application of the official
victim enhancement and remand the case for resentencing to have the district court explain
fully its application of both disputed enhancements.
injury.” Op., at 15. I do not disagree that, in some circumstances, that might be the case. But the majority fails to acknowledge the succeeding sentences in Alexander:
We are not holding or even suggesting that every swing of a fist qualifies for the upward adjustment under [the official victim enhancement]. Applying the Guideline standard to the specific circumstances of a case is the responsibility of the district judge.
712 F.3d at 979. Under the posture of this case, in which the district court failed to provide a sufficient explanation for its reasoning or to identify what particular circumstances created a “substantial risk of serious bodily injury,” it is not “so obvious” that the two strikes would have supported the application of the enhancement. Bolden, 964 F.3d at 288.