United States v. Michael Gorman ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3333
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United States of America
Plaintiff - Appellee
v.
Michael Gorman
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: May 9, 2022
Filed: July 28, 2022
[Unpublished]
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Before STRAS, MELLOY, and KOBES, Circuit Judges.
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PER CURIAM.
St. Louis police officers tried to stop a 2018 Ford Explorer that was wanted in
connection with a recent shooting. Officers deployed spike strips, but the car
continued to accelerate, using an oncoming traffic lane to pass other cars.
Eventually, the Explorer pulled over and Michael Gorman, the driver, fled on foot.
While running from officers, Gorman threw a semi-automatic rifle into some bushes.
When officers eventually caught up to him, Gorman refused to comply with orders,
and one of the officers used a taser to subdue him.
Gorman pleaded guilty to possessing a firearm as a felon, 18 U.S.C.
§ 922(g)(1). The district court1 applied two enhancements to his sentence: (1) a
two-level enhancement for committing a crime with a stolen firearm, U.S.S.G.
§ 2K2.1(b)(4)(A); and (2) a two-level enhancement for recklessly causing a
substantial risk of death or serious bodily injury to another person while fleeing from
law enforcement, U.S.S.G. § 3C1.2. After applying those enhancements, the district
court imposed a 96-month prison sentence. Gorman appeals, arguing that there was
insufficient evidence for either enhancement.
We review the district court’s Guidelines interpretation and application of
enhancements de novo, but the factual findings underlying those enhancements for
clear error. United States v. Finck, 407 F.3d 908, 913 (8th Cir. 2005). The
“[a]pplication of sentencing enhancements must be supported by a preponderance
of the evidence, and the government has the burden to prove the factual basis for an
enhancement.” United States v. Mitchell, 825 F.3d 422, 425 (8th Cir. 2016) (per
curiam).
Gorman first argues that there was insufficient evidence to apply
§ 2K2.1(b)(4)(A) for committing a crime with a stolen firearm. But the record
undermines that argument. During a post-arrest interview with police, Gorman told
officers that he had obtained his rifle “on the street” from a “kid” who had “broke[n]
in[to] a house.” When asked by a detective to confirm that “that gun [wa]s stolen
from a house,” Gorman responded, “that’s where the kid said he got it from.” Under
our precedent, that is enough for a court to apply § 2K2.1(b)(4). See United States
v. Bates, 584 F.3d 1105, 1109–10 (8th Cir. 2009) (upholding enhancement under
1
The Honorable Stephen H. Clark, United States District Judge for the Eastern
District of Missouri.
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§ 2K2.1(b)(4) where defendant possessed gun that someone lost in the bathroom,
despite that person never admitting that the gun was “stolen”). 2
We next consider whether there was sufficient evidence to find that his flight
created a substantial risk of death or bodily injury under § 3C1.2. The record
establishes that: Gorman fled from police both on foot and via car; officers had to
use spike strips to stop his car; Gorman continued to accelerate despite his tires being
popped; Gorman threw his gun into a bush while fleeing; and officers had to use a
taser to arrest Gorman. That is more than enough to support the application of
§ 3C1.2. See, e.g., United States v. Davidson, 933 F.3d 912, 914–15 (8th Cir. 2019)
(applying § 3C1.2 where defendant fled on foot, discarded a handgun, scaled a fence,
and struggled when officers attempted to arrest him); United States v. Sykes, 4 F.3d
697, 700 (8th Cir. 1993) (per curiam) (applying § 3C1.2 when suspect fled in car,
requiring officers to force him off the road).
The judgment of the district court is affirmed.
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2
Gorman’s invocation of United States v. Abumayyaleh, 530 F.3d 641 (8th
Cir. 2008), is unpersuasive. There, we held that applying § 2K2.1(b)(4) was
inappropriate where a defendant bought guns from undercover officers under the
mistaken belief that they were stolen. Id. at 650. We noted that because “the two-
level sentencing enhancement applies only if the firearm ‘was stolen,’” the guideline
was inapplicable. Id. at 650 (quoting § 2K2.1(b)(4)). That’s a far cry from
Gorman’s case, where there is simply an evidentiary dispute over whether the gun
was stolen.
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