United States v. Crosb

397 F.3d 103 (2nd Cir. 2005)

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Nature of the Case

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Facts

D was indicted for possession of a firearm by a convicted felon. He entered a plea of guilty to the single count of the indictment. There was no plea agreement. D was arrested on a 'shots fired' complaint. D had fired a shotgun in their direction from the window of his car. When D saw the officers, he ran from the car, and, as one of the officers pursued him, turned and pointed a loaded shotgun at the officer. After a brief struggle, D was subdued and arrested. The Government based its contention that D was a felon on his two Florida state court convictions, one for attempted murder in the second degree and one for battery on a law enforcement officer. D disputed that either of the Florida convictions was a felony. D did not dispute that he was subsequently sentenced to twelve years' imprisonment after the revocation of his Community Control and probation. The District Court credited P's evidence, obtained from Florida officials that D's offenses were felonies under Florida law. The Judge started with a base offense level of 24, applicable to a defendant who has violated 18 U.S.C. § 922(g) after conviction of at least two felonies involving a crime of violence or a controlled substance offense. The Judge then made three enhancements based on judicial fact-finding. The Judge added four levels for using the possessed firearm in connection with another felony. The Judge deemed pointing the loaded shotgun at the pursuing police officer to be the New York felony of first-degree reckless endangerment. The Judge added three levels for creating a substantial risk of injury to a law enforcement officer. The Judge added two levels for obstruction of justice, finding D's testimony at the evidentiary hearing to have been materially false. This yielded a sentencing range of 188 to 235 months. The District Judge sentenced D to imprisonment for ten years, followed by a three-year term of supervised release. D appealed.