United States v. Byrd , 27 F. App'x 225 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4357
JEFFREY B. BYRD,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-00-365)
Submitted: November 26, 2001
Decided: December 19, 2001
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Robert D. Shrader, Jr., STEINGOLD & SHRADER, P.L.C., Rich-
mond, Virginia, for Appellant. Kenneth E. Melson, United States
Attorney, Stephen W. Miller, Assistant United States Attorney, Rich-
mond, Virginia, for Appellee.
2 UNITED STATES v. BYRD
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jeffrey B. Byrd appeals the forty-six month sentence and concur-
rent twelve-month sentence he received following his guilty plea to
possession of cocaine base (crack) in violation of 21 U.S.C.A. § 844(West 1999), and possession of an unregistered firearm in violation
of 26 U.S.C. § 5861(d) (1994). Byrd contends that the district court
erred in applying U.S. Sentencing Guidelines Manual § 2K2.1(a)(3)
(2000), in making an enhancement for reckless endangerment, USSG
§ 3C1.2, and in refusing to depart downward under USSG § 4A1.3,
p.s. We affirm in part and dismiss in part.*
Byrd was arrested after he ran a red light in full view of a marked
police patrol car, and then led the police on a short chase at speeds
exceeding seventy-five miles per hour. The chase ended when Byrd
crashed his car. Byrd and a number of passengers in his car escaped
without serious injury. Byrd was in possession of a small amount of
crack. A rifle was found under the driver’s seat. In connection with
his plea agreement, Byrd stipulated that he was the driver of the car,
that the rifle had been in his possession and had previously traveled
in interstate commerce, and that it was not registered to him. The rifle
stock had been shortened so that the overall length of the weapon was
twenty-one inches.
We review de novo the district court’s determination as to the
guideline applicable to the firearm offense. United States v. Davis,
202 F.3d 212, 218 (4th Cir.), cert. denied, 530 U.S. 1236 (2000).
Here, § 2K2.1(a)(3) clearly applied to Byrd’s conviction for the fire-
*The government asserts that Byrd waived his appeal rights under the
plea agreement. However, the government has not established that the
waiver was knowing and voluntary. United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992).
UNITED STATES v. BYRD 3
arm offense. Subsection (a)(3) applies to violations of 26 U.S.C.
§ 5861(d) where, as in this case, the offense involved a firearm
described in 26 U.S.C. § 5845(a) and the defendant had at least one
prior felony conviction for a crime of violence. Moreover, Byrd stipu-
lated that he had possessed the firearm. The cases Byrd relies on are
inapposite because they deal with weapon enhancements under USSG
§ 2D1.1(b)(1). We find that the district court did not err in determin-
ing Byrd’s base offense level under § 2K2.1(a)(3).
The district court’s determination that Byrd’s conduct constituted
reckless endangerment is reviewed under the clearly erroneous stan-
dard. United States v. Sloley, 19 F.3d 149, 154 (4th Cir. 1994). Byrd
first maintains incorrectly that § 2K2.1(a)(3) accounted for all his rel-
evant conduct. He next asserts that the record does not establish
whether anyone was put in danger during the chase or whether Byrd
was the driver of the car. This argument is belied by Byrd’s stipula-
tion that he was the driver of the car and by uncontested information
in the presentence report that the chase ended when Byrd wrecked the
car, thus endangering his passengers. Therefore, the district court did
not clearly err in making an adjustment for reckless endangerment.
Last, Byrd argues that the district court abused its discretion when
it declined to depart downward. A defendant may obtain review of a
district court’s decision not to depart downward only when the district
court mistakenly believed it lacked authority to depart. United States
v. Edwards, 188 F.3d 230, 238-39 (4th Cir. 1999), cert. denied, 528
U.S. 1130 (2000). Byrd does not argue, and the record does not dis-
close, that the district court failed to understand its authority to depart
under § 4A1.3. In denying the departure, the court stated that it did
not believe that criminal history category III overstated Byrd’s crimi-
nal history or experience. Therefore, this portion of the appeal must
be dismissed.
We therefore affirm the sentence, but dismiss that portion of the
appeal which contests the district court’s decision not to depart down-
ward. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART