US v. Daniel Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:14-cr-00044-FL-1 Copies to all parties and the district court/agency. [999795259].. [15-4364]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4364

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL EARL JOHNSON,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:14-cr-00044-FL-1)

Submitted:

March 17, 2016

Decided:

April 14, 2016

Before KING, GREGORY, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.
Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Phillip A. Rubin, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Daniel Earl Johnson appeals the district court’s judgment
after

pleading

guilty

to

being

a

felon

in

possession

of

a

firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1),
924 (2012).

The district court sentenced Johnson at the bottom

of his Guidelines range to 110 months in prison.

On appeal, he

contends the district court erred in calculating his Guidelines
range by applying an official victim enhancement and denying him
a reduction for acceptance of responsibility.

We affirm.

We review the reasonableness of a sentence for abuse of
discretion.

United States v. Lymas, 781 F.3d 106, 111 (4th Cir.

2015) (citing Gall v. United States, 552 U.S. 38, 41 (2007)).
In

determining

whether

properly

calculated,

findings

for

clear

the

advisory

we

review

error

and

the

its

Guidelines

district

legal

range

court’s

conclusions

was

factual
de

novo.

United States v. Dodd, 770 F.3d 306, 309 (4th Cir. 2014), cert.
denied, 135 S. Ct. 1514 (2015).
Johnson first contends the district court erred by applying
an official victim enhancement under U.S. Sentencing Guidelines
Manual § 3A1.2(c)(1) (2014).

“Section 3A1.2(c)(1) provides for

a six-level enhancement where a 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
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the offense or immediate flight therefrom.’”
Hampton,

628

F.3d

§ 3A1.2(c)(1)).

654,

659

(4th

Cir.

United States v.

2010)

(quoting

USSG

“As the Sentencing Guidelines do not provide a

definition of ‘assault,’ we turn to the common meaning of the
word for guidance.”

Id. at 660 (citation omitted).

In this case, there was evidence that Johnson pointed a
loaded firearm at a police officer while fleeing from police.
On appeal, Johnson argues that he did not assault the officer
because the officer did not see the gun “until after the gun was
said

to

have

been

pointed

in

his

direction.”

However,

the

officer was chasing Johnson as a suspect leaving a scene where
gun shots had been fired, and the officer testified that Johnson
turned back towards the officer while running and extended his
arm

straight

out

and

pointed

it

at

the

officer,

making

eye

contact and seeming to adjust his arm to track the officer's
movement.

This lead the officer to believe that Johnson was

pointing a gun at him and prompted the officer to raise his own
weapon.

The belief was confirmed moments later when the officer

saw the gun in Johnson’s hand, causing the officer to slow down
because he was scared that Johnson was going to shoot him.

We

conclude the evidence was sufficient to support the enhancement.
Johnson also contends the district court erred by denying
him

a

§ 3E1.1

reduction
based

on

for
his

acceptance
new

of

criminal
3

responsibility
conduct

under

committed

in

USSG
jail

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while he was awaiting sentencing in this case.
was

charged

with

felony

assault

with

Specifically, he

physical

injury

on

a

detention employee.

On appeal, he argues that his “difficulties

at

nothing

the

jail

had

to

do

with

his

violation

of

§ 922(g)(1),” and he should have received the reduction.
“The
reduction

decision
often

to

grant

depends

on

an

acceptance-of-responsibility

the

actions

of

the

defendant

following his or her arrest or plea.”

United States v. Dugger,

485 F.3d 236, 240 (4th Cir. 2007).

District courts consider

several factors when evaluating whether a defendant has clearly
demonstrated acceptance of responsibility, including “truthfully
admitting the conduct comprising the offense(s) of conviction,”
“voluntary

termination

or

“voluntary

surrender

to

commission

of

efforts,”

and

manifesting

the

the

withdrawal

from

authorities

offense,”

“timeliness
acceptance

of
of

criminal

promptly

“post-offense
the

(citation and internal quotation marks omitted).

after

the

rehabilitative

defendant’s

responsibility.”

conduct,”

conduct
Id.

at

in
239

“A guilty plea

may be evidence of acceptance, but it does not, standing alone,
entitle a defendant to a reduction as a matter of right.”

Id.

(citation and internal quotation marks omitted).
We will uphold a district court’s decision under § 3E1.1
unless

there

is

evidence

compelling

court committed clear error.

Id.
4

us

to

conclude

that

the

We “must give great deference

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to the district court’s decision because the sentencing judge is
in

the

best

statements

position

to

to

determine

evaluate
whether

the

the

defendant’s

defendant

responsibility for his or her criminal conduct.”

acts

has
Id.

and

accepted
Based on

our review of the record, we conclude that the district court
did not clearly err in denying Johnson the § 3E1.1 reduction.
Accordingly, we affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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