United States v. Grate , 81 F. App'x 451 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4038
TRAVIS RAYMARK GRATE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Senior District Judge.
(CR-02-448)
Submitted: October 31, 2003
Decided: November 21, 2003
Before WILLIAMS, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William F. Nettles, IV, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. 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Unpublished opinions are not binding precedent in this circuit.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).
2 UNITED STATES v. GRATE
OPINION
PER CURIAM:
Travis Raymark Grate appeals from his convictions pursuant to a
plea agreement to possession with intent to distribute at least five
grams and less than 500 grams of cocaine base, in violation of 21
U.S.C. § 841(a) (2000), and possession of a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)
(2000). Grate was sentenced to consecutive terms of seventy and
eighty-four months’ imprisonment.
Counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), in which he raised two issues: (1) whether the magistrate
judge complied with Rule 11 when he accepted Grate’s guilty plea;
and (2) whether the district court erroneously enhanced Grate’s sen-
tence pursuant to U.S.S.G. § 3C1.2 for reckless endangerment during
flight. Grate filed a supplemental brief raising two additional issues
for this Court’s consideration. The first is whether the district court
erred in enhancing Grate’s sentence from five to seven years, where
there was no evidence that Grate brandished the firearm in relation to
a drug trafficking crime. The second is whether the district court erred
in enhancing Grate’s sentence twice for the same firearm, thereby
engaging in impermissible double counting.
After reviewing the transcript of the plea proceeding, we conclude
that the magistrate judge fully complied with the requirements of Rule
11 in accepting Grate’s guilty plea.
Grate’s presentence report recommended enhancing his guideline
range under U.S. Sentencing Guidelines Manual § 3C1.2 (2002) for
reckless endangerment during flight. Our review is de novo where the
facts are undisputed. United States v. Butner, 277 F.3d 481, 488 (4th
Cir.), cert. denied, 122 S. Ct. 2610 (2002). The enhancement applies
if the defendant recklessly created a substantial risk of death or seri-
ous bodily injury to another while fleeing from a law enforcement
officer. U.S.S.G. § 3C1.2. A defendant’s conduct is reckless when he
"was aware of the risk created by his conduct and the risk was of such
a nature and degree that to disregard that risk constituted a gross devi-
ation from the standard of care that a reasonable person would exer-
UNITED STATES v. GRATE 3
cise in such a situation." See U.S.S.G. § 3C1.2, comment. (n.2);
§ 2A1.4, comment. (n.1). Running through a crowded parking lot, as
Grate did, while holding a firearm and causing officers to draw their
weapons is behavior demonstrating this kind of disregard for public
safety and the safety of the officers. Likewise, discarding a weapon
in a heavily trafficked area is also conduct creating a risk of serious
bodily injury.
Grate also raises two issues in his pro se supplemental brief. First,
he contends that he was improperly convicted under § 924(c) because
there was insufficient evidence from which to conclude that he "bran-
dished" the firearm in relation to the drug offense. He contends that
because he never admitted at the plea hearing to brandishing his
weapon or pointing his weapon at an officer, he has been improperly
sentenced.
Grate did not raise this issue below, therefore review is for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993). We find
no plain error where Grate pled guilty to the indictment, which
charged him with brandishing the firearm, and admitted at his plea
colloquy to brandishing the firearm. Grate’s guilty plea, the validity
of which he has not challenged, precludes a challenge to the suffi-
ciency of the evidence. See United States v. Willis, 992 F.2d 489, 490-
91 (4th Cir. 1993).
Grate’s second contention in his supplemental brief states that the
district court impermissibly double counted because the district court
both enhanced his sentence under U.S.S.G. § 3C1.2 for reckless
endangerment and imposed the statutory mandatory minimum under
§ 924(c). The Guidelines do not prohibit imposition of a consecutive
sentence under § 924(c) after enhancing the offense level on the
underlying offense for reckless endangerment. See United States v.
Studifin, 240 F.3d 415, 419-20 (4th Cir. 2001). Therefore, we affirm
Grate’s convictions and sentence.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm Grate’s conviction and sentence. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the client
4 UNITED STATES v. GRATE
requests that a petition be filed, but counsel believes that such a peti-
tion 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 the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED