Appeal from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: Melloy, Circuit Judge.
Submitted: September 25, 2009
Before MELLOY, GRUENDER, and BENTON, Circuit Judges.
Following a plea of guilty, Phillip D. Hill was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court*fn1 sentenced Hill to 78 months' imprisonment. Hill appeals his sentence, arguing that the district court improperly applied enhancements under the U.S. Sentencing Guidelines ("USSG") §§ 2K2.1(b)(6) and 3A1.2(c). We affirm.
In the early morning hours of February 2, 2008, Hill was a passenger in a black Pontiac Grand Am traveling on Interstate 70 in Kansas City, Missouri, at a high rate of speed and without its lights on. Two police officers patrolling the interstate in a police car observed the Grand Am and recognized it as matching the description of a vehicle that had refused to stop for another police officer earlier that night. The officers began driving in the Grand Am's general direction and observed that the Grand Am had been involved in a one-car accident.
The driver of the car and Hill fled from the wrecked car in different directions. Kansas City Police Officer Mark Smith exited the police car and yelled at Hill to stop, but Hill continued running. Officer Smith pursued Hill up several embankments on the side of the interstate. During the chase, Hill turned toward Officer Smith at least three times, squared his body, and unsuccessfully attempted to draw an object from his waistband. Officer Smith could not discern what was in Hill's waistband, but each time that Hill turned around and attempted to retrieve something from his waistband, Officer Smith "drew down" on his firearm and verbally ordered Hill onto the ground. Hill did not obey those commands. Eventually, Officer Smith caught up to Hill and took him to the ground. Officer Smith pinned Hill on the ground and restrained Hill's hands until Smith's partner arrived, at which point the officers attempted to place Hill into handcuffs. Hill physically resisted the officers and made several unsuccessful attempts to retrieve something from his waistband. During the struggle, a Smith & Wesson .41 caliber large frame revolver fell out of Hill's waistband onto the pavement. The revolver had a six- to seven-inch barrel and was loaded with four rounds. Neither officer was injured during this incident.
Hill was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). Hill pled guilty to the one-count indictment on June 6, 2008. Following Hill's conviction, the U.S. Probation Office prepared a Presentence Investigation Report ("PSR"), which calculated Hill's total offense level at 21. Hill's base offense level was 14 pursuant to USSG § 2K2.1(a)(6). The PSR recommended a four-level enhancement under USSG § 2K.1(b)(6) because Hill possessed a firearm in connection with felony resisting arrest. The PSR also recommended a six-level enhancement under USSG § 3A1.2(c)(1) because Hill assaulted a law enforcement officer in a manner that created a substantial risk of serious bodily injury. Lastly, the PSR recommended a three-level reduction under USSG § 3E1.1(a) due to Hill's acceptance of responsibility.
Hill objected to the recommended enhancements in the PSR. The district court overruled Hill's objections and adopted the PSR's recommended adjustments. Hill had a category-V criminal history, placing him in a sentencing range of 70 to 87 months under the Guidelines. The district court sentenced Hill to a term of imprisonment of 78 months.
Hill argues on appeal that the district court erred by applying the four-level and six-level enhancements. We review de novo the "legal conclusions a district court reaches in order to apply an enhancement for purposes of calculating an advisory guidelines range . . . while the factual findings underpinning the enhancement are reviewed for clear error." United States v. Septon, 557 F.3d 934, 936 (8th Cir. 2009).
The Sentencing Guidelines provide a four-level enhancement "[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense." USSG Manual § 2K2.1(b)(6) (2007). "Another felony offense" is defined as "any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained." Id. § 2K2.1 cmt. n.14(C). The PSR recommended a four-level enhancement under § 2K2.1(b)(6) because Hill committed felony resisting arrest in connection with his possession of a firearm. In support of the § 2K2.1(b)(6) enhancement, the district court found that Hill "clearly attempted to draw a firearm in an effort to use that firearm in furtherance of resisting his arrest." Hill argues that the district court erred when by concluding that he committed felony resisting arrest.
Under Missouri law, it is a class D felony to "[r]esist an arrest, detention or stop by fleeing in such a manner that the person fleeing creates a substantial risk of serious physical injury or death to any person." Mo. Rev. Stat. § 575.150(5). Hill argues that his conduct did not create a "substantial risk of serious physical injury or death" because he did not draw, point, or fire his weapon, and the officers were not injured. According to ...