United States v. Tahji Eley ( 2023 )

USCA4 Appeal: 21-4164 Doc: 37 Filed: 06/02/2023 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4164
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAHJI ANTONIO ELEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:20-cr-00318-FL-1)
Submitted: April 26, 2023 Decided: June 2, 2023
Before NIEMEYER and HARRIS, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Richard L. Brown, Jr., LAW OFFICES OF RICHARD L. BROWN, JR.,
Monroe, North Carolina, for Appellant. Kenneth A. Polite, Jr., Assistant Attorney General,
Lisa H. Miller, Acting Deputy Assistant Attorney General, Finnuala K. Tessier, Appellate
Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; G. Norman Acker, III, Acting United States Attorney, Joshua L. Rogers,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-4164 Doc: 37 Filed: 06/02/2023 Pg: 2 of 7
PER CURIAM:
Tahji Antonio Eley pleaded guilty to possession of a firearm by a felon, in violation
of 18 U.S.C. § 922(g)(1). The district court sentenced him to 108 months’ imprisonment,
within the Sentencing Guidelines range of 108 to 120 months’ imprisonment. The offense
level for that Guidelines range was enhanced six levels by the district court’s finding that
Eley “assaulted” a law enforcement officer “during the course of the offense or immediate
flight therefrom,” as provided in U.S.S.G. § 3A1.2(c)(1), and by an additional four levels
by the court’s finding that Eley possessed the firearm “in connection with another felony
offense,” as provided in § 2K2.1(b)(6)(B). On appeal, Eley challenges the district court’s
findings in applying these two sentencing enhancements. We affirm.
During his plea hearing, Eley admitted to the following facts underlying his
conviction. When two officers were questioning Eley during a voluntary encounter as Eley
sat in the passenger’s seat of a parked vehicle, Officer Troy Brooks observed marijuana
residue in the vehicle in plain view and, on that basis, decided to conduct a probable cause
search of the vehicle. Then the following occurred, as Eley admitted at the hearing:
Officer Brooks attempted to escort the defendant [Eley] out of the vehicle to
conduct that probable cause search. The defendant continuously ignored all
commands given to him and a struggle ensued between the defendant,
Officer Brooks, and Officer Stirkey.
During the struggle, the defendant continuously made attempts to reach for
his waistband. At some point during the struggle, Officer Brooks heard one
loud gunshot and shortly thereafter realized that Eley was in possession of a
firearm, and that firearm was discharged during the struggle. Eley was
finally secured in handcuffs and officers began checking Eley for a gun shot
wound, and during this check officers located and recovered a firearm in the
defendant’s boxer briefs. . . . Further investigation revealed that the firearm
2
USCA4 Appeal: 21-4164 Doc: 37 Filed: 06/02/2023 Pg: 3 of 7
was actually reported stolen to the Raleigh Police Department back in
February of 2019.
In light of these facts, which were more fully detailed in the presentence report
(“PSR”) prepared for Eley’s sentencing, the PSR recommended the sentencing
enhancements under U.S.S.G. §§ 3A1.2(c)(1) and 2K2.1(b)(6)(B). Eley objected to the
enhancements without denying any of the underlying facts. The probation officer, through
amendments to the PSR, responded to Eley’s objections. As to the § 3A1.2(c)(1)
enhancement, the probation officer stated: “Eley engaged in a physical struggle with
officers. During this struggle with the officer, Eley repeatedly attempted to reach towards
his waistband. At some point, the defendant was successful, and he discharged a stolen
firearm. The bullet grazed the defendant in the stomach. Therefore, Eley’s conduct during
his arrest created a substantial risk of serious injury or death to the officers.” (Emphasis
added). And as to the § 2K2.1(b)(6)(B) enhancement, the probation officer stated:
While speaking with Eley, the officers noticed marijuana residue on the
middle console of the vehicle. A subsequent search of the vehicle revealed
3.12 grams of cocaine and a small amount of marijuana from the driver’s side
of the vehicle. When officers attempted to remove Eley from the vehicle, a
struggle ensued and Eley discharged a firearm, accidentally shooting himself
in the stomach. Once Eley was under control, a search of his person
uncovered a stolen 9mm handgun and less than one gram of suspected
cocaine. . . . Eley’s dangerous conduct during his confrontation with law
enforcement had the potential to facilitate the offenses of Assault Inflicting
Serious Injury on a Law Enforcement Officer or Assault With a Firearm on
a Law Enforcement Officer, both of which are felonies under North Carolina
General Statute[s]. As such, the probation officer maintains the
enhancement has been appropriately applied and no changes to the report are
warranted.
(Emphasis added).
3
USCA4 Appeal: 21-4164 Doc: 37 Filed: 06/02/2023 Pg: 4 of 7
At the sentencing hearing, the district court adopted the PSR, found that both
enhancements were factually supported, and then overruled Eley’s objections. Before the
court announced its ruling, the government had argued:
[The officers] attempted to remove Mr. Eley from the passenger side of the
vehicle. A struggle ensued. And this was not just a minor struggle pushing
and shoving. Mr. Eley was struggling with two law enforcement officers and
the entire time he knows there’s a firearm on his person. These law
enforcement officers, who are in fully-marked uniforms, don’t know there’s
a gun in the car.
So again the struggle ensues and Mr. Eley attempts on numerous occasions
to reach for that firearm; and law enforcement officers can see he’s reaching
for something. They’re giving him commands, he’s not listening
whatsoever. So unfortunately that firearm goes off and, thank God, one of
these law enforcement officers were not killed that day. They were simply
there doing their job trying to conduct a probable cause search and with Mr.
Eley’s — his conduct and his behavior that day, he ended up just shooting
himself.
* * *
And when Mr. Eley was attempting to be treated [for his wound] by EMS,
he was still being combative. He was verbally assaultive to the law
enforcement officers. He actually made the statements to a couple of the law
enforcement officers that were on scene, quote, I wish I would have killed
myself, but first I wish I would have killed you. I wish I would have killed
you. [End quote]. Mr. Eley is saying that to law enforcement officers who
are simply trying to do their job.
So his behavior on this day, again, knowing that these are law enforcement
officers, knowing that they’re trying to conduct their normal proceedings by
doing a search of his vehicle, he created a substantial risk of serious bodily
injury or death in this case. As we stated earlier, that firearm could have
easily killed one of those two officers.
The district court grounded its ruling not only on the PSR but also on the court’s acceptance
of the government’s argument, stating: “I think for the reasons the Government has argued
and the opinions expressed by the probation office, that there’s ample basis to apply both
4
USCA4 Appeal: 21-4164 Doc: 37 Filed: 06/02/2023 Pg: 5 of 7
[enhancements].” See United States v. Hampton, 628 F.3d 654 (4th Cir. 2010) (applying
both enhancements under similar circumstances).
On appeal, Eley essentially challenges the district court’s findings. First, with
respect to the enhancement under § 3A1.2(c)(1), he argues that the government had to show
an “aggravated assault” and that “there was no action by Mr. Eley that equated to an
aggravated assault.” He continues, “The offense-conduct section in the adopted
[presentence report] merely suggests that he struggled with officers. The offense conduct
does not allege or suggest that Mr. Eley had any intent to harm the officers.”
To be sure, Application Note 4(A) to § 3A1.2(c) does indeed require that the
enhancement be applied in circumstances “tantamount to aggravated assault against a law
enforcement officer,” but it goes on to explain that an “aggravated assault” is an assault
that is “sufficiently serious to create at least a ‘substantial risk of serious bodily injury.’”
(Emphasis added). In adopting the PSR and accepting the government’s argument on this
enhancement, the district court accepted the government’s account that during the struggle,
Eley attempted “on numerous occasions to reach for [the] firearm” in his waist, while law
enforcement officers observed him doing so, and that, despite their commands, Eley
discharged the firearm. The court concluded that Eley thus “created a substantial risk of
serious bodily injury or death in this case. . . . [The] firearm could have easily killed one
of those two officers.” (Emphasis added). The PSR stated similarly that “[d]uring [the]
struggle with the officer, Eley repeatedly attempted to reach towards his waistband. At
some point, the defendant was successful, and he discharged a stolen firearm. The bullet
grazed the defendant in the stomach. Therefore, Eley’s conduct during his arrest created a
5
USCA4 Appeal: 21-4164 Doc: 37 Filed: 06/02/2023 Pg: 6 of 7
substantial risk of serious injury or death to the officers.” (Emphasis added). These factual
findings amply support a finding that Eley committed an “aggravated assault,” as they
show that Eley created a substantial risk of serious bodily injury. Thus, we conclude that
the district court did not clearly err in applying the enhancement under § 3A1.3(c)(1).
With respect to the enhancement under § 2K2.1(b)(6)(B), Eley contends that the
district court inappropriately applied this enhancement, stating that “counsel has reviewed
the record and found no record evidence to suggest that Mr. Eley possessed the gun for the
specific purpose of assaulting a law enforcement officer.” The question, however, is not
whether Eley possessed the gun for the purpose of assaulting an officer; the enhancement
applies when the defendant “used or possessed any firearm or ammunition in connection
with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). And on that requirement, the
court again relied on both the PSR and what the government argued — that Eley’s conduct
in resisting the officers and discharging a firearm could have resulted in state felony
charges for the assault with a firearm of law enforcement officers, in violation of N.C. Gen.
Stat. § 14-34.5(a) (providing that “[a]ny person who commits an assault with a firearm
upon a law enforcement officer . . . in the performance of his or her duties is guilty of
a Class D felony”); see also Hampton, 628 F.3d at 663. The government points out that a
§ 14-34.5(a) assault can, under South Carolina law, be committed by a “completed battery,”
citing United States v. Simmons, 917 F.3d 312, 318–19 (4th Cir. 2019), and that there could
hardly be any dispute that “Eley committed a completed battery on the law enforcement
officers — he physically struggled with them as he was being removed from the car.” See
United States v. Vinson, 805 F.3d 120, 125 (4th Cir. 2015) (“A battery always includes an
6
USCA4 Appeal: 21-4164 Doc: 37 Filed: 06/02/2023 Pg: 7 of 7
assault, and is an assault whereby any force is applied, directly or indirectly, to the person
of another” (quoting State v. Britt, 154 S.E.2d 519, 521 (N.C. 1967))). Eley’s argument
against this enhancement simply amounts to a disagreement over the significance of the
facts on which the district court relied. We conclude, however, that the district court’s
finding was not clearly erroneous.
We add that even if the district court could have been found to have clearly erred in
applying the two enhancements — not a conclusion that we make — any error would be
harmless, as it is clear from the record that the district court still would have reached the
same sentence without the enhancements. As the court said:
[L]et there be no confusion, that if I got it wrong under the Guidelines, this
is what I sentence you resting firmly on the 3553 factors. This is what I
believe is a sentence that’s sufficient but not greater than necessary.
See United States v. McDonald, 850 F.3d 640, 643 (4th Cir. 2017).
The judgment of the district court is according affirmed.
AFFIRMED
7