United States v. Taylor , 337 F. App'x 342 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5083
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT HAMPTON TAYLOR,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:07-cr-00324-D-1)
Submitted: July 9, 2009 Decided: July 24, 2009
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Terry F. Rose, Smithfield, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Hampton Taylor pled guilty pursuant to a plea
agreement to one count of possessing a firearm in relation to a
crime of violence, in violation of 18 U.S.C. § 924(c) (2006),
and one count of being a felon in possession of a firearm, in
violation 18 U.S.C. §§ 922(g)(1) (2006) & 924 (2006). In
calculating Taylor’s advisory guidelines range on the
felon-in-possession conviction, the district court applied the
U.S. Sentencing Guidelines Manual (“USSG”) § 2K2.1(c)(1)(A)
cross reference, after determining that Taylor committed
attempted murder when he shot a law enforcement officer.
Pursuant to USSG § 2A2.1(a)(1), Taylor had a base offense level
of 33, which was increased four levels as the officer sustained
permanent or life-threatening injuries. Taylor’s offense level
was then increased an additional six levels as his victim was a
law enforcement officer. After a three level reduction for
acceptance of responsibility, Taylor had an advisory guidelines
range of 360 months to life imprisonment. The district court
sentenced Taylor to life imprisonment on the felon-in-possession
conviction and imposed a consecutive 120-month sentence for the
possession of a firearm during and in relation to a crime of
violence conviction.
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On appeal, Taylor’s counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967). ∗ Taylor first
suggests that the application of the § 2K2.1(c)(1)(A) cross
reference violated his right to due process. We review the
legal interpretation of the Sentencing Guidelines de novo and
factual findings are reviewed for clear error. See United
States v. Turner, 59 F.3d 481, 483-84 (4th Cir. 1995).
According to Taylor, the application of the USSG
§ 2K2.1(c)(1)(A) cross reference in his case has resulted in a
sentencing enhancement that is the “tail which wags the dog of
the substantive offense.” McMillan v. Pennsylvania, 477 U.S.
79, 88 (1986). In support of his argument, Taylor invokes
United States v. Lombard, 72 F.3d 170 (1st Cir. 1995). Lombard,
though, fails to support Taylor’s argument. See United States
v. Fenner, 147 F.3d 360, 366 (4th Cir. 1998). Here, the
district court determined, based on the law enforcement
officer’s testimony, that Taylor committed attempted murder in
∗
On February 18, 2009, the clerk’s office mailed Taylor a
notification that, if he wished to file a pro se supplemental
brief, his brief was due on March 20, 2009. On March 4, 2009,
the notification was returned to the clerk’s office as Taylor
was no longer at the Cumberland County Detention Center.
Taylor’s counsel filed a letter with this court on April 29,
2009, indicating that, on that date, she mailed Taylor
notification of his right to file a pro se supplemental brief.
Taylor has not submitted any pro se supplemental materials.
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shooting the officer. Following United States v. Booker, 543
U.S. 220 (2005), a sentencing court continues to make factual
findings concerning sentencing factors by a preponderance of the
evidence. United States v. Morris, 429 F.3d 65, 72 (4th Cir.
2005). Long-standing authority has permitted a sentencing court
to consider any evidence at sentencing that “has sufficient
indicia of reliability,” see USSG § 6A1.3(a), including “conduct
underlying [an] acquitted charge, so long as that conduct has
been proved by a preponderance of the evidence.” United
States v. Watts, 519 U.S. 148, 156-57 (1997)(per curiam); United
States v. Montgomery, 262 F.3d 233, 249 (4th Cir. 2001).
Accordingly, the district court’s application of the USSG
§ 2K2.1(c)(1)(B) cross reference did not violate Taylor’s right
to due process.
Taylor next suggests that the evidence was
insufficient to support the four-level enhancement he received
pursuant to USSG § 2A2.1(b)(1)(A) for permanent or
life-threatening injury. A permanent or life-threatening injury
is defined as an “injury involving a substantial risk of death;
loss or substantial impairment of the function of a bodily
member, organ, or mental faculty that is likely to be permanent;
or an obvious disfigurement that is likely to be permanent.”
USSG § 1B1.1 comment. (n.1(J)). Permanent scarring has been
held sufficient to support application of the four-level
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enhancement under § 2A2.1(b)(1)(A). See e.g., United States v.
Miner, 345 F.3d 1004, 1006 (8th Cir. 2003). We have reviewed
the record and conclude that the district court did not err in
enhancing Taylor’s base offense level pursuant to USSG
§ 2A2.1(b)(1)(A).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Taylor’s conviction and sentence. This
court requires that counsel inform Taylor, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Taylor requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Taylor.
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
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