United States v. Gooden , 111 F. App'x 297 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004
Charles R. Fulbruge III
Clerk
No. 04-40129
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
COREY GOODEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-144-1
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Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Corey Gooden appeals his sentence following a guilty-plea
conviction for possession of cocaine base with intent to
distribute.
Gooden first argues that the district court erred by
enhancing his offense level by two levels for obstruction of
justice. This enhancement was based on a comment Gooden made to
a police officer after a pre-trial hearing. See U.S.S.G.
§ 3C1.1. Although Gooden concedes that he made an
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40129
-2-
“inappropriate” remark, he argues that it was not made with the
intent to obstruct justice. Whether a threat was made with the
intent to obstruct or impede the administration of justice is a
fact question reviewed for clear error. United States v. Greer,
158 F.3d 228, 233 (5th Cir. 1998). “As long as a factual finding
is plausible in light of the record as a whole, it is not clearly
erroneous.” United States v. Huerta, 182 F.3d 361, 364 (5th Cir.
1999). Based upon our review of the record and the circumstances
under which the comment was made, we conclude that the district
court did not clearly err in finding that Gooden’s comment was a
threat intended to obstruct the administration of justice.
Gooden also argues that the district court erred by
enhancing his offense level by an additional two levels based on
his high-speed flight from the police. See U.S.S.G. § 3C1.2.
Gooden argues that his flight was brief and did not rise to the
level of reckless endangerment. Whether a defendant’s conduct
constitutes reckless endangerment during flight under § 3C1.2
also is a factual finding reviewed for clear error. United
States v. Lugman, 130 F.3d 113, 115-16 (5th Cir. 1997). We
conclude that the district court did not clearly err in finding
that Gooden’s brief high-speed flight amounted to reckless
endangerment. See United States v. Jimenez, 323 F.3d 320, 321-24
(5th Cir.), cert. denied, 124 S.Ct. 124 (2003).
AFFIRMED.