US v. Montez Gaddy

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00325-RJC-DCK-1 Copies to all parties and the district court. [999886507]. [15-4551]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4551

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MONTEZ GADDY,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., District Judge. (3:13-cr-00325-RJC-DCK-1)

Submitted:

May 31, 2016

Decided:

July 13, 2016

Before AGEE, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE, Cary,
North Carolina, for Appellant.
Jill Westmoreland Rose, United
States Attorney, Anthony J. Enright, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In an effort to elude police during a traffic stop, Montez
Gaddy, who was driving a Mustang, struck a stationary vehicle
with Deputy United States Marshal Joe Graham inside.

A high

speed car chase ensued and Gaddy was ultimately apprehended.
Following a trial, a jury found Gaddy guilty of assaulting,
resisting,

opposing,

impeding,

intimidating,

and

interfering

with a Deputy United States Marshal in the performance of his
official duties, using a dangerous weapon, to wit: a vehicle, in
violation of 18 U.S.C. § 111(a)(1), (b) (2012).
court

sentenced

him

to

120

months’

The district

imprisonment.

Gaddy

appealed.
On appeal, Gaddy argues that the district court erroneously
calculated
sentence,
outside

his

“whether

the

deferential

Guidelines

range.

inside,

Guidelines

just

range,”

abuse-of-discretion

We

review

outside,

for

or

any

significantly

reasonableness,

standard.”

criminal

United

“under
States

a
v.

King, 673 F.3d 274, 283 (4th Cir. 2012); see Gall v. United
States, 552 U.S. 38, 41, 51 (2007).
Gaddy
assigning
Guidelines

first
him

a

Manual

argues
base

that

the

offense

§ 2A2.2

district

level

(2014),

under

court
U.S.

governing

erred

in

Sentencing
“Aggravated

Assault,” rather than assigning him a base offense level under
USSG

§ 2A2.4,

governing

“Obstructing
2

or

Impeding

Officers.”

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The statutory index to the Guidelines lists both the aggravated
assault

Guideline

applicable

to

and

18

obstruction

U.S.C.

(statutory index).

§ 111

Guideline

violations.

as
See

potentially
USSG

App.

A

In turn, the obstruction Guideline contains

a cross-reference to the aggravated assault Guideline if the
defendant’s conduct in obstructing the officer constituted an
aggravated assault.

USSG § 2A2.4(c)(1).

Aggravated assault is defined as “a felonious assault that
involved
injury

(A)

serious

(i.e.,

a

dangerous

not

bodily

merely
injury;

weapon
to

with

intent

to

with

that

frighten)

(C)

strangling,

cause

bodily

weapon;

(B)

suffocating,

or

attempting to strangle or suffocate; or (D) an intent to commit
another felony.” *

USSG § 2A2.2 cmt. n.1.

Thus, § 2A2.2 applies

to defendants who commit a felonious assault involving any one
of the four enumerated scenarios.

See United States v. Rue, 988

F.2d 94, 96 (10th Cir. 1993) (holding that “[t]he plain language
of this definition of [aggravated assault] requires § 2A2.2 be
applied
Here,

if
the

any

of

district

the

.

court

.

.

described

found

that

situations

the

felonious

exists”).
assault

involved a dangerous weapon with intent to cause bodily injury.

*

A dangerous weapon “includes any instrument that is
ordinarily used as a weapon (e.g., a car, a chair, or an
pick) if such an instrument is involved in the offense with
intent to commit bodily injury.”
USSG § 2A2.2 cmt. n.1;
USSG § 1B1.1 cmt. n.1(A), (D).

3

not
ice
the
see

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“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, see United States v.
Kiulin, 360 F.3d 456, 461 (4th Cir. 2004).
Gaddy

used

a

dangerous

weapon

—

a

The jury found that

vehicle

—

to

commit

the

offense, and Gaddy concedes that the Mustang could be considered
a dangerous weapon. However, he takes issue with the district
court’s finding that he had intent to cause bodily injury to
Agent Graham.
At trial, Graham and other officers testified that Gaddy
struck

Graham’s

actions
merely

were

vehicle

with

deliberate.

attempting

to

flee

the

Despite
the

Mustang
Gaddy’s

scene,

we

and

that

claim

Gaddy’s

that

conclude

he

was

that

the

district court could reasonably infer from Gaddy’s actions that
he intended to cause bodily injury to Agent Graham with the
Mustang.

See, e.g., United States v. Valdez-Torres, 108 F.3d

385, 388 (D.C. Cir. 1997); United States v. Garcia, 34 F.3d 6,
10-11 (1st Cir. 1994).
Gaddy

also

contends

that

the

district

court

erred

in

applying USSG § 2A2.2(a), because the issue of intent to cause
bodily injury was not submitted to the jury and proven beyond a
reasonable doubt, in contravention of Apprendi
4

v. New Jersey,

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530 U.S. 466 (2000), and its progeny.

Apprendi held “[o]ther

than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.”
530 U.S. at 490.

The Supreme Court went a step further in

Alleyne v. United States, 133 S. Ct. 2151 (2013), declaring,
“[m]andatory minimum sentences increase the penalty for a crime.
It follows, then, that any fact that increases the mandatory
minimum is an ‘element’ that must be submitted to the jury.”
133 S. Ct. at 2155.
These decisions have no application in Gaddy’s case.
district

court’s

factual

increase

Gaddy’s

statutory

merely

determined

statutory range.
facts

his

finding

regarding

minimum

Guidelines

or

range

intent

maximum
within

The

did

not

sentence,

but

the

prescribed

Courts have consistently rejected claims that

underlying

a

submitted to a jury.

defendant’s

Guidelines

range

must

be

See United States v. Booker, 543 U.S. 220,

233 (2005) (“[W]hen a trial judge exercises his discretion to
select a specific sentence within a defined range, the defendant
has no right to a jury determination of the facts that the judge
deems relevant.”); see also Alleyne, 133 S. Ct. at 2163 (“Our
ruling

today

does

not

mean

that

any

fact

judicial discretion must be found by a jury.

5

that

influences

We have long

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recognized

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that

broad

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sentencing

discretion,

informed

by

judicial factfinding, does not violate the Sixth Amendment.”).
Next,
applying

Gaddy
a

four-level

§ 2A2.2(b)(2)(B)
offense.
§ 2A2.2(a)

argues

for

use

that

the

district

enhancement
of

a

court

pursuant

dangerous

weapon

erred

in

to

USSG

during

the

The same reasoning that supports application of USSG
also

supports

application

of

§ 2A2.2(b)(2)(B),

and

the commentary specifically provides that “[i]n a case involving
a dangerous weapon with intent to cause bodily injury, the court
shall apply both the base offense level and subsection (b)(2).”
USSG

§ 2A2.2

cmt.

n.3

(emphasis

added).

Furthermore,

after

striking Agent Graham’s car and fleeing the scene, Gaddy led
police on a high speed car chase in heavy traffic, resulting in
at least one accident.

As the Government notes, “[f]leeing from

law enforcement authorities by driving [a vehicle] recklessly
and at a high rate of speed to escape capture constitute[s]
another dangerous, life-threatening use of the vehicle — which
already had become a dangerous weapon in the course of this
criminal event . . . and this second dangerousness justifies the
enhancement for otherwise using a dangerous weapon.”

United

States v. Morris, 131 F.3d 1136, 1138 (5th Cir. 1997).
Gaddy

also

asserts

that

the

district

court

erred

increasing his offense level under USSG § 2A2.2(b)(7).

by
This

provision calls for a two-level increase if the defendant was
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convicted under 18 U.S.C. § 111(b).
increase,

as

well

as

the

Gaddy contends that this

four-level

increase

under

USSG

§ 2A2.2(b)(2)(B), amount to double counting.
In applying the Guidelines, double counting is permitted
unless expressly prohibited.

United States v. Rivera-Santana,

668 F.3d 95, 201 (4th Cir. 2012); see also USSG § 1B1.1 cmt. n.4
(“The

offense

level

adjustments

from

more

than

one

specific

offense characteristic within an offense guideline are applied
cumulatively
that

(added

only

the

together)

greater

unless

(or

the

greatest)

guideline
is

to

be

specifies
used.”).

Section 2A2.2 does not expressly prohibit double counting.

The

district court properly applied both enhancements.
Finally, Gaddy challenges the six-level enhancement under
USSG § 3A1.2(b), which applies when the victim of the offense is
a government officer or employee, the defendant was motivated by
the

victim’s

committing
guideline
Person).”

status

the
is

as

a

offense,

from

Chapter

USSG § 3A1.2(b).

government
and

“the

Two,

Part

officer

or

applicable
A

employee
Chapter

(Offenses

Against

in
Two
the

Gaddy questions the finding that he

knew that Agent Graham was a law enforcement officer.
The evidence presented at trial showed that the emergency
lights on Agent Graham’s vehicle were activated when Gaddy drove
into it.

Graham and Gaddy had eye contact before the collision.

Gaddy’s own trial testimony revealed that he was well aware that
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Graham was a law enforcement official.

Claiming that it had

actually been Graham who had driven into him, Gaddy testified,
“I couldn't even believe [sic] he hit me for real because, I
mean,

that’s

not

what

the

police

preponderance

of

the

evidence

do.”

We

supports

conclude

application

that
of

a

the

§ 3A1.2(b) enhancement.
Accordingly, we affirm Gaddy’s sentence.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
this

court

are
and

argument would not aid the decisional process.
AFFIRMED

8