United States v. McCrea , 165 F. App'x 270 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4403
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRAVIS SINTELL MCCREA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-03-472)
Submitted: January 4, 2006 Decided: February 6, 2006
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Travis Sintell McCrea pled guilty to possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was
sentenced to a term of 120 months imprisonment. McCrea appeals his
sentence, arguing that the district court engaged in impermissible
double counting by applying both U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(5) (2002), and USSG § 3C1.2. He also claims that his
sentence was increased based on judge-found facts in violation of
the Sixth Amendment. We affirm.
When a police officer in Florence, South Carolina,
attempted to stop McCrea for speeding on a city street, McCrea
ignored the officer’s blue light and siren and continued to drive
at a high speed. He ran a stop sign, turned into an apartment
complex, and hit a parked truck. McCrea and his passenger
abandoned their vehicle and ran through the apartment complex.
McCrea was arrested shortly afterward at his residence. A loaded
9 mm pistol in working order was found under the driver’s seat of
his vehicle; a small amount of marijuana was also found in the
vehicle.
In sentencing McCrea, the district court applied both a
four-level enhancement under § 2K2.1(b)(5) for possession of the
firearm in connection with another felony offense (failure to stop
for a blue light), and a two-level adjustment for reckless
endangerment during flight under § 3C1.2. The district court made
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the latter increase because McCrea increased his speed on a city
street to avoid apprehension and collided with a parked vehicle
while fleeing the police officer.
Because McCrea did not contest the facts which the
district court considered, the court’s determination was a legal
one involving an interpretation of the guidelines and is thus
reviewed de novo. United States v. Schaal, 340 F.3d 196, 198 (4th
Cir. 2003). The guidelines permit double counting except where it
is expressly prohibited. Id. Application Note 1 to § 3C1.2
prohibits application of the adjustment for reckless endangerment
during flight when another enhancement or adjustment results in an
equal or greater increase based solely on the same conduct.
Although both the enhancement for use of a firearm in connection
with another offense and the adjustment for reckless endangerment
were based on McCrea’s flight from the police officer who attempted
to stop him for speeding, we conclude that the district court
correctly determined that the two enhancements addressed different
conduct. A driver may fail to stop for a blue light without
leading the police officer on a high-speed chase that endangers the
public, as McCrea chose to do. Therefore, both enhancements were
properly applied
The government argues that McCrea waived the Sixth
Amendment claim he seeks to raise under Blakely v. Washington, 542
U.S. 296 (2004), by entering into a plea agreement in which he
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stated his “understand[ing]” that his sentence would be imposed “in
conformity with” the federal sentencing guidelines. Although a
defendant’s explicit waiver of the right to appeal a sentence
within the statutory maximim constitutes a waiver of his Sixth
Amendment sentencing claims, see United States v. Blick, 408 F.3d
162, 172 (4th Cir. 2005), we have not held that an “understanding”
that a sentence would be imposed in a particular manner constitutes
a waiver of appeal rights. The Second Circuit has rejected a
similar contention. See United States v. Hamdi, ___ F.3d ___, 2005
WL 3366948, at *5-7 (2d Cir. Dec. 12, 2005) (concluding that
defendant’s “agree[ment]” to be sentenced under the Guidelines did
not waive right to appeal sentence). In any event, McCrea’s claim
fails on the merits, because the district court did not make fact
findings that increased the sentence and, therefore, no Sixth
Amendment error occurred.
Accordingly, we affirm the sentence imposed by the
district court. 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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