United States v. Thomas

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-20662 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HOWARD EARL THOMAS,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ April 16, 1997 Before KING, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

Howard Earl Thomas is a codefendant of Deon Tarral McDaniel

and Louis Bernard Davis, all three having been charged with

robbery and use of a firearm in a crime of violence. Thomas also

pleaded guilty and was sentenced with McDaniel and Thomas.

Thomas appeals his sentence.

Thomas argues that the district court erred in increasing

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.

1 his offense level under section 2B3.1 of the Sentencing

Guidelines based on serious bodily injury to a victim because the

victim’s injuries were not “serious” and because that section of

the Sentencing Guidelines is unconstitutionally vague. The

pertinent facts of Davis’s and McDaniel’s appeals are identical,

and these are essentially the same arguments McDaniel raised. We

disposed of McDaniel’s claims in United States v. McDaniel, No.

96-20610, which was issued today, and for the reasons given in

McDaniel, we reject Thomas’s claims.

Thomas raises one other claim not addressed in McDaniel.

Thomas argues that the district court impermissibly engaged in

double counting by raising his offense level two levels for

reckless endangerment during flight after previously adding a

three-level adjustment for firing at an officer. Thomas asserts

that both enhancements were made based on the same conduct -- the

flight. This court reviews the application of the sentencing

guidelines de novo and the district court's findings of fact for

clear error. United States v. Wimbish, 980 F.2d 312, 313 (5th

Cir. 1992).

USSG section 3C1.2 mandates a two-level increase “[i]f the

defendant recklessly created a substantial risk of death or

serious bodily injury to another person in the course of fleeing

from a law enforcement officer.” The adjustment should not be

applied “where the offense guideline in Chapter Two, or another

2 adjustment in Chapter Three, results in an equivalent or greater

increase in offense level solely on the basis of the same

conduct." USSG § 3C1.2 commentary at n.1 (emphasis added); see

also United States v. Cabral-Castillo, 35 F.3d 182, 188 (5th Cir.

1994). Thomas’s PSR recommended that his offense level be

increased by two pursuant to this section “as the defendants shot

at police while being pursued through a residential area and

recklessly created a risk of death or serious bodily injury to

Kim Vo, who was exposed to the gunfire.”

USSG section 3A1.2(b) mandates a three-level increase if,

during the offense or immediate flight, the defendant or person

for whose conduct the defendant is accountable, assaults a person

known to be a law enforcement officer in a manner creating a

substantial risk of serious bodily injury. Thomas’s PSR

recommended that the adjustment be given as “the defendants

assaulted Missouri Police Officer Lemerond by shooting at him,

thereby, creating a substantial risk of bodily injury.” In an

addendum to the PSR, the probation officer stated that the same

conduct was not used for both enhancements as the section 3C1.2

adjustment was based upon Kim Vo’s exposure to gunfire in her

neighborhood while the section 3A1.2 adjustment was based upon

shots fired as the defendants left the bank.

Thomas relies upon Cabral-Castillo in arguing that he was

subjected to impermissible double counting. In Cabral-Castillo,

3 this court found that the district court erred by upwardly

adjusting a defendant’s base offense level for use of a dangerous

weapon and for reckless endangerment during flight because both

enhancements were based upon the defendant’s driving at a border

patrol agent at a high rate of speed. 35 F.3d at 188. This case

is easily distinguishable from Cabral-Castillo for although both

instances arose during the same flight from the bank they were

distinct incidents, separated in time from one another, and

directed at different victims. The district court did not commit

clear error.

For the forgoing reasons, we AFFIRM Thomas’s sentence.