United States v. Mays ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4274
TERESA MAYS, a/k/a Toreatha A.
Beaty,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Dennis W. Shedd, District Judge.
(CR-97-105)
Submitted: November 30, 1998
Decided: December 21, 1998
Before MURNAGHAN and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Russell Doyle Ghent, LEATHERWOOD, WALKER, TODD &
MANN, P.C., Greenville, South Carolina, for Appellant. J. Rene
Josey, United States Attorney, Scarlett A. Wilson, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Teresa Mays pled guilty to conspiracy to possess marijuana,
cocaine, and cocaine base (crack) with intent to distribute, see 21
U.S.C. § 846 (1994), and to being a felon in possession of a firearm,
see 18 U.S.C.A. § 922(g) (West Supp. 1994). She appeals the 210-
month sentence she received, contending that the district court clearly
erred in finding that she possessed a firearm during a drug offense,
erred in finding that she had no right of self-defense against unknown
intruders, and erred in considering the results of her polygraph test
without stating to what extent it was a factor in the court's determina-
tion of her credibility. Mays also disputes the district court's decision
to apply U.S. Sentencing Guidelines Manual§ 2A2.1(a)(1) (1997)
(Assault with Intent to Commit Murder or Attempted Murder) pursu-
ant to the cross reference in USSG § 2K2.1(c)(1)(A), and to increase
her sentence for obstruction of justice based on perjury. See USSG
§ 3C1.1. We affirm.
After a confidential informant made a controlled purchase of mari-
juana from Mays, Detective John Sutherland and other officers from
the Fairfield County, South Carolina, Sheriff's Department executed
a search warrant at Mays' residence before dawn on July 28, 1995.
As Sutherland entered the house, Mays fired a shot which hit the door
frame above the officer's head. Sutherland returned fire but did not
hit Mays. Sutherland then turned on the light and saw Mays drop to
the floor and throw down a pistol. In the bedroom from which Mays
fired at Sutherland, the officers found a loaded revolver, $1685 in
cash (part of which was the marked money used by the informant),
.95 grams of crack, 44.3 grams of marijuana, twenty-seven unidenti-
fied white tablets, eleven and a half Xanax tablets, and various items
of drug paraphernalia, including a set of hanging letter scales and a
hemostat. Both Mays and her roommate, Kay Phillis, were arrested.
After their release on bond, Mays and Phillis continued to sell crack,
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cocaine, and marijuana to the informant. They also sold him a fire-
arm. Mays was eventually indicted on federal drug and firearm
charges and entered a guilty plea to one count of conspiracy and to
possessing a firearm after being convicted of a felony.
The probation officer placed both counts in one group to calculate
the offense level. See USSG § 3D1.2. In computing the offense level
for the drug conspiracy count, the probation officer recommended a
two-level enhancement for possession of a firearm during a drug
offense. See USSG § 2D1.1(b)(1). However, the final offense level
was determined by the felon-in-possession offense. The probation
officer recommended application of the cross reference in USSG
§ 2K2.1(c)(1)(A), which provides that, if the defendant used the fire-
arm in connection with the commission or attempted commission of
another offense, USSG § 2X1.1 should be applied, which in turn pro-
vides for application of the guideline for the underlying conduct. The
probation officer recommended that, in Mays' case, the underlying
conduct was assault with intent to commit murder or attempted mur-
der, which yielded a base offense level of 28. See USSG
§ 2A2.1(a)(1). Three levels were added because the victim was a law
enforcement officer, see USSG § 3A1.2(b), raising the recommended
offense level to 31.
Mays objected to the application of the cross reference, alleging
that she did not hear the police announce themselves, that she fired
in self defense, and that she had purposely aimed high to avoid injur-
ing the supposed intruders. Of her own volition, Mays took a poly-
graph test before she was sentenced. She was asked the following
questions: "On the day of the shooting incident did you know the peo-
ple that were shot at were police officers?" and"On the day of the
shooting incident did you hear the police identify themselves?" Mays'
answers indicated deception. At a pre-sentencing hearing, the district
court warned the government that it could not depend on the poly-
graph test results to prove at sentencing that Mays had knowingly
fired at police officers because the questions were too imprecise. The
government indicated that it would rely instead on the testimony of
the officers who executed the search warrant.
At the sentencing hearing, Sutherland and two of the other officers
who were present during the search testified that Sutherland knocked
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on the door of Mays' small house and called loudly,"Sheriff's
Department, search warrant," three times before he forced open the
door and entered the house. Sutherland testified that the house was
dark but that the television was on in the bedroom to his left. In the
faint light, he saw someone stand up near the end of the bed, heard
a shot, and saw a bright flash. He fired at the flash. The government
also presented a video of the interior of the house which showed
where Sutherland's and Mays' bullets had lodged. In response to a
question from the court, Sutherland testified that a right-handed per-
son's first, hurried shot is usually high and to the right of the intended
target. The other two officers testified that Sutherland announced their
presence three times before entering. Investigator Adam Roberson
further stated that Mays' bedroom window was close to the front
door.
Mays testified that she never heard the officers identify themselves.
She said that Phillis, who was sleeping in the same bed, woke her and
told her someone was breaking in. Mays said she asked Phillis where
the gun was and was told it was under the pillow. Mays said she could
not find it, so Phillis located it and handed it to her. She said she then
got on her knees near the head of the bed and, when she saw someone
enter through the front door, she fired a warning shot above the bed-
room doorway.* Under cross-examination, Mays added that she
yelled, "Who is it?" twice before the officers entered, but that she did
not receive an answer. Recalled by the court, Sutherland and the other
officers all testified that they did not hear anyone call to them before
they entered.
The district court found that Mays' account was not credible
because it conflicted with the officers' testimony and with the physi-
cal evidence, which showed that Sutherland's bullet hit the wall
between the window and the wardrobe, just where he said he saw the
flash from Mays' gun, and not where she said she was when she fired.
The court found that, if Mays was awake before the officers entered
long enough to have the discussion with Phillis that she described, she
would have heard them knocking and calling out. The court further
found that Mays had fired with premeditation, intending to hit the per-
_________________________________________________________________
*Defense counsel called Phillis as a witness to corroborate Mays'
account, but Phillis asserted her Fifth Amendment right not to testify.
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son coming through the bedroom door. Consequently, the court found
that the cross reference to the guideline for attempted murder was cor-
rect. Finally, the court determined that Mays had obstructed justice by
giving perjured testimony during the sentencing hearing and that she
had not accepted responsibility for her criminal conduct. This raised
the offense level to 33. With a criminal history category of III, Mays'
guideline range was increased to 168-210 months. The court imposed
a sentence of 210 months.
On appeal, Mays first contests the enhancement for possession of
a firearm during a drug offense, see USSG§ 2D1.1(b)(1), arguing that
the government failed to prove that she possessed the weapon before
the officers' entry. Because Mays did not object to this enhancement
in the district court, we review the issue for plain error. See United
States v. Olano, 507 U.S. 725, 732 (1993). Undisputed information in
the presentence report described how Mays sold marijuana to the
informant the night before the search. Additional drugs were present
in her bedroom when the officers searched it the next morning. For
the enhancement to apply, the firearm need only be present in a place
where a drug conspiracy is carried on. See United States v. Apple, 962
F.2d 335, 338 (4th Cir. 1992). We find no plain error in the district
court's adoption of the recommended enhancement which, in any
case, did not affect the final offense level.
Next, Mays contends that the district court erred in concluding that
she had no right to defend herself against persons whom she believed
to be intruders but who were in fact law enforcement officers. Her
argument fails because the district court did not so find. Rather, the
court first found that Mays' testimony was not credible and then made
a factual finding that she knew she was shooting at officers from the
Sheriff's Department. While we do not review a district court's credi-
bility determination, see United States v. Saunders, 886 F.2d 56, 60
(4th Cir. 1989), we review the district court's factual findings for
clear error. See United States v. Perrin, 45 F.3d 869, 871 (4th Cir.
1995). All three officers testified that Detective Sutherland loudly
knocked and announced their presence several times before they
entered Mays' house, and that one of the officers testified that they
were standing close to her bedroom window at the time. Moreover,
none of the officers heard Mays respond as she said she did. We can-
5
not find that the district court clearly erred in concluding that Mays
knew she was shooting at law enforcement officers.
Next, Mays contends that the district court erred in considering the
results of the polygraph test at sentencing without making a finding
as to the reliability of the test results or explaining to what degree the
polygraph test results affected its decision as to her credibility. Our
review of the record discloses that the court did not consider the poly-
graph test in determining Mays' sentence. After the court found that
Mays' self-defense claim was not credible, that application of the
cross reference to USSG § 2A2.1 was appropriate, and that Mays had
not accepted responsibility, the district court made the following
statement:
I would note that the polygraph, while we question whether
or not those questions--the polygraph results don't lend any
credence to her version of the story, none whatsoever, the
amount of proof they are to add to the government's case is,
you know, open to dispute, I guess. I think it does help the
government's case some. I would note without any doubt it
doesn't credit her version of the facts.
These comments were an aside which had no bearing on the court's
finding concerning Mays' claim of self-defense. The court had
already made its finding. Moreover, the government did not introduce
the polygraph test results at sentencing or make any argument based
on the test because the district court had already determined, before
the sentencing hearing, that the questions asked were too imprecise
to be useful. We find no error in the court's gratuitous comments
about the test.
Finally, Mays argues that, because the district court erred in finding
that she did not shoot in self-defense, it also erred in applying the
cross reference to USSG § 2A2.1(a)(1) and in finding that she
obstructed justice by perjuring herself at sentencing. For the reasons
already discussed, we find no error in the court's use of the cross ref-
erence or finding of perjury.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
6
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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