USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 1 of 29

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4284

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

PATRICK VAUGHN MITCHELL,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, District Judge. (4:21-cr-00046-BO-1)

Argued: May 5, 2023 Decided: August 17, 2023

Before RUSHING and BENJAMIN, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed in part, vacated, and remanded with instructions by published opinion. Judge Benjamin wrote the opinion, in which Judge Rushing joined as to Part II.A. and Senior Judge Keenan joined as to Part II.B. Judge Rushing wrote an opinion concurring in part and dissenting in part. Senior Judge Keenan wrote an opinion concurring in part and dissenting in part.

ARGUED: Andrew DeSimone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Katherine Simpson Englander, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 2 of 29

Attorney, David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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DEANDREA GIST BENJAMIN, Circuit Judge:

Patrick Mitchell pled guilty without a plea agreement to possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2). At issue in this

appeal is the district court’s application of two enhancements to Mitchell’s Sentencing

Guidelines offense level. First, the court applied a four-level enhancement for possession

of a firearm in connection with another felony offense, specifically felony possession of

drugs, under U.S.S.G. § 2K2.1(b)(6)(B). Second, the court applied a six-level

enhancement for the knowing creation of a substantial risk of serious bodily injury to a law

enforcement officer under U.S.S.G. § 3A1.2(c)(1). For the reasons set forth below, we

affirm the application of the six-level enhancement. As to the four-level enhancement,

because the court made no findings connecting Mitchell’s possession of a firearm to his

felony drug possession, we vacate Mitchell’s sentence and remand for resentencing.

I.

A.

On March 29, 2021, the Kinston Police Department received a report about an

unresponsive man in a car in Kinston, North Carolina with a handgun in his lap. Officers

arrived at the car after 11:00 p.m. and found it located on a rural road in a secluded area.

The car was stopped at a stop sign with the engine running and brake lights on. Officers

discovered Mitchell in the car, non-responsive and slumped over in the driver seat with a

gun in his right hand. Police cars with activated flashing blue lights were stationed in front

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of Mitchell’s car. “[A] half dozen” police officers dressed in uniform were positioned

around the car. (J.A. 023)

An officer unlocked the passenger side door and removed the gun from Mitchell’s

hand. Mitchell remained unconscious. Officer McKinley Jones testified that an officer

shook Mitchell from the passenger side. Mitchell began to awaken. Jones opened the

driver side door and announced police presence. He tried to unbuckle Mitchell’s seatbelt

and to remove Mitchell from the car, startling Mitchell. Police officers announced their

presence and instructed Mitchell to get out of the car, but Mitchell stared at them. Jones

attempted to forcibly remove Mitchell from the car at which point Mitchell twice punched

him in the face with a fist. Once hit, Jones fell and hit his face. Jones threw his “arm up

to block any more strikes. [Mitchell] then struck [his] arm multiple times.” (J.A. 038).

Meanwhile, officers loudly announced police presence, but cautioned, “keep in mind he’s

incoherent.” Officers verbally commanded Mitchell to exit the car, or else they would tase

him. Moments later, officers tased Mitchell and dragged him out of the car.

Officer Trevor Normile testified that Mitchell appeared to be intoxicated and

smelled like alcohol. He searched Mitchell and retrieved a small plastic baggie from

Mitchell’s pants pocket that contained a white substance. Normile “associated [the

substance] immediately with crack cocaine” or something similar. (J.A. 045). He could

not recall if the drugs were in rock or powder form, or whether they had been field tested.

Later that night, Mitchell admitted possession of the drugs and the firearm—“I’ll take the

gun and the cocaine but not the DWI.” (J.A. 049–50). The gun was reported stolen out of

North Carolina.

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B.

Mitchell was indicted on one count of possession of a firearm by a felon in violation

of 18 U.S.C. § § 922(g)(1) and 924(a)(2). He pled guilty to the charge in the indictment.

The presentence report (PSR) calculated Mitchell’s base offense level as 14 because

Mitchell was a felon when he committed the offense. It applied a two-level enhancement

for the stolen firearm under U.S.S.G. § 2K2.1(b)(4)(A). In addition, it applied a four-level

enhancement for possession of a firearm in connection with another felony offense, felony

possession of cocaine, under U.S.S.G. § 2K2.1(b)(6)(B). Last, it applied a six-level

enhancement for assault of a law enforcement officer that created a substantial risk of

serious bodily injury under U.S.S.G. § 3A1.2(c)(1). Application of the enhancements

increased Mitchell’s base level offense to 26. The total offense level was ultimately

reduced to 23 because Mitchell accepted responsibility and pled guilty. The report

calculated Mitchell’s criminal history category as IV with an advisory Guidelines range of

70 to 87 months of imprisonment.

Mitchell objected to the PSR’s application of the six-level enhancement under

§ 3A1.2(c)(1) for the knowing assault of a law enforcement officer on the ground he was

incoherent at the time and did not intend to assault an officer. The PSR applied the

enhancement because Mitchell punched an officer “twice in the face” after police

announced their presence. (J.A. 094). Mitchell also objected to the PSR’s application of

the four-level enhancement under § 2K2.1(b)(6)(B) on the ground he did not possess a

firearm in connection with another felony offense. The PSR applied this enhancement

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because officers removed a gun from Mitchell’s hand and recovered three grams of cocaine

from his pants pocket.

At sentencing, Mitchell renewed his objections to the PSR’s application of the six-

level enhancement under § 3A1.2(c)(1) and the four-level enhancement under

§ 2K2.1(b)(6)(B). The district court reviewed body camera footage, heard testimony from

officers Jones and Normile, and questioned the officers about the underlying assaultive

conduct. The parties agreed the “other felony offense” for purposes of the

§ 2K2.1(b)(6)(B) four-level enhancement was drug possession. (J.A. 027). Mitchell’s

counsel acknowledged Mitchell had drugs and alcohol in his system and that he possessed

a firearm because “unfortunately, he drives a truck at night in Kinston . . . .” (J.A. 022).

After the court reviewed the evidence and heard testimony, it overruled Mitchell’s

objections, and applied the six-level enhancement under § 3A1.2(c)(1) and the four-level

enhancement under § 2K2.1(b)(6)(B). The court concluded Mitchell possessed the firearm

in furtherance of another felony offense, and determined the firearm enhancement was

adequately supported by the evidence and testimony. (J.A. 053). It concluded Mitchell’s

“behavior and conduct created a substantial risk of serious bodily injury to the law

enforcement officers at the scene.” (Id.). The court adopted the findings of the PSR and

found the PSR adequately supported the advisory Guidelines range of 70 to 87 months of

imprisonment. The court sentenced Mitchell to 84 months of imprisonment.

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II.

On appeal, Mitchell argues the district court erred when it applied a six-level

enhancement under § 3A1.2(c)(1) and a four-level enhancement under § 2K2.1(b)(6)(B) to

his Guidelines range. He contends the evidence does not support application of either

enhancement, and that the court failed to state factual findings to support application of the

enhancements.

We review criminal sentences for abuse of discretion to determine whether they are

reasonable. Gall v. United States,

(2007). We must first “ensure that the

district court committed no significant procedural error.”

. If the district court

commits a “significant procedural error” in sentencing, we must vacate and remand for

resentencing. United States v. Carter,

, 328–30 (4th Cir. 2009) (internal

citations omitted).

Procedural errors include “failing to calculate (or improperly calculating) the

Guidelines range . . . selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence . . . .”

When rendering a sentence, the district

court must place on the record an “ ‘individualized assessment’ ” based on the particular

facts of the case before it.”

Such a making of the record is critical, because “[i]n

reviewing this assessment, an appellate court may not guess at the district court’s rationale,

searching the record for statements by the Government or defense counsel or for any other

clues that might explain a sentence.” Carter, 564 F.3d at 329–30.

In assessing whether the district court properly calculated the Guidelines range, we

review the court’s factual findings for clear error and its legal conclusions de novo. United

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States v. Hampton,

(4th Cir. 2010). We will not disturb the district

court’s findings unless we are “left with the definite and firm conviction that a mistake has

been committed.” United States v. Dugger,

(4th Cir. 2007) (internal

citations omitted). However, if the district court fails to explain its rationale, then the

clearly erroneous standard does not guide our review on appeal. United States v. Wilkinson,

, 269–70 (4th Cir. 2010) (concluding that the district court’s failure to explain

its reasoning made the court’s finding “incapable of meaningful appellate review”).

Rather, when the district court commits such procedural error, we may confidently assume

the district court’s fact-finding role only if it is “so obvious” from the record that the

enhancement should be applied. United States v. Bolden,

(4th Cir.

2020).

A.

We first consider whether the district court erred when it applied a six-level

enhancement under U.S.S.G. § 3A1.2(c)(1) for the knowing assault of a law enforcement

officer that created a substantial risk of serious bodily injury. The Guidelines allow for a

six-level enhancement to a defendant’s offense level if the defendant “in a manner creating

a substantial risk of serious bodily injury,” and “knowing or having reasonable cause to

believe that a person was a law enforcement officer, assaulted such officer during the

course of the offense or immediate flight therefrom.” U.S.S.G. § 3A1.2(c)(1). The

Government must prove the applicability of a sentencing enhancement by a preponderance

of the evidence. United States v. Adepoju,

(4th Cir. 2014).

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The Guidelines instruct, in Application note 4(A) that the provision applies in

circumstances “tantamount to aggravated assault.” U.S.S.G. § 3A1.2 cmt. n. 4(A). Under

Application note 4(B), “ ‘[s]ubstantial risk of serious bodily injury’ includes any more

serious injury that was risked, as well as actual serious bodily injury . . . .” U.S.S.G.

§ 3A1.2 cmt. n. 4(B). The Guidelines define “serious bodily injury” as “injury involving

extreme physical pain or the protracted impairment of a function of a bodily member,

organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization,

or physical rehabilitation.” U.S.S.G. § 1B1.1 cmt. n. 1(M).

1.

Mitchell contends the district court erred when it applied § 3A1.2(c)(1) because it

failed to state findings sufficient to support application of the enhancement. We must

ensure the district court did not commit “significant procedural error” in sentencing

Mitchell. Carter,

(internal citations omitted). In rendering a sentence, the

district court must place on the record an “ ‘individualized assessment’ based on the

particular facts of the case before it.”

. Such a making of the record is critical,

because “[i]n reviewing this assessment, an appellate court may not guess at the district

court’s rationale, searching the record for statements by the Government or defense counsel

or for any other clues that might explain a sentence.”

at 329–30.

In the present case, at sentencing, the district court reviewed evidence related to the

application of § 3A1.2(c)(1). The court reviewed body camera footage and noted it showed

there were “a half dozen” police officers present. (J.A. 023). The court heard witness

testimony from responding officers related to Mitchell’s conduct during the incident and

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actively questioned each witness about the facts underlying application of § 3A1.2(c)(1).

It clarified that officers were dressed in uniform and Jones announced police presence

before he entered the car. It ascertained that Jones was positioned with his upper body in

the car when Mitchell struck. In addition, the court clarified the nature of Mitchell’s strikes

as a fist punch to the face that caused Jones to fall, hit his face, and throw his arms up to

block Mitchell’s additional strikes.

After the court reviewed the evidence and heard testimony, it applied § 3A1.2(c)(1).

It concluded Mitchell’s “behavior and conduct created a substantial risk of serious bodily

injury to law enforcement officers.” (J.A. 053). It adopted the findings of the PSR, which

applied § 3A1.2(c)(1) based on Mitchell’s resistance to officers and that he punched an

officer twice in the face after police announced their presence.

We determine the district court did not procedurally err for failing to make adequate

factual findings underlying application of the § 3A1.2(c)(1). First, the court developed a

factual record underlying the necessary elements of § 3A1.2(c)(1) through its active

questioning of Jones and Normile. Second, the court adopted the findings of the PSR that

applied the enhancement based on Mitchell’s resistance to officers and his two punches to

an officer’s face after police identified themselves. Third, the court concluded Mitchell’s

“behavior and conduct did create a substantial risk of serious bodily injury to law

enforcement officers.” (J.A. 053).

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2.

a.

We next address Mitchell’s argument the district court erred when it applied

§ 3A1.2(c)(1) to his Guidelines range because the evidence is insufficient to support

application of the enhancement. He first contends there is insufficient evidence to show

he consciously assaulted a law enforcement officer because he reflexively struck Jones

while incoherent and did not intend to strike anyone. In assessing whether the district court

properly calculated the Guidelines range, we review the court’s factual findings for clear

error and its legal conclusions de novo. United States v. Hampton,

(4th

Cir. 2010).

While the Guidelines do not define the word “assault,” this Court analyzed the

common meaning and common law definition of the word for purposes of § 3A1.2(c)(1).

Hampton, 628 F.3d at 660–61. Common law assault consisted of either attempted battery

or the “deliberate infliction upon another of a reasonable fear of physical injury.” Id. at

660 (citing United States v. Delis,

, 180–81 (2d Cir. 2009) (internal citations

omitted)). Common law battery consisted of “the unlawful application of force to the

person of another and required no specific intent to commit the act.”

This Court

observed that over the years, a battery has generally been considered as a completed assault,

and thus an assault is necessarily included in every battery.

Ultimately, this Court held

battery of a law enforcement officer satisfies the assault requirement under § 3A1.2(c)(1).

Hampton,

.

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In the present case, the evidence in the record is inconsistent with Mitchell’s

contention that his actions were just a reflex. Officers woke Mitchell from

unconsciousness at which point he twice punched Jones in the face. Jones used his arm to

block Mitchell’s additional strikes to his arms. Mitchell’s conduct does not consist of one

reflexive swing of a fist, but to the contrary consists of multiple strikes after he was

awakened by law enforcement.

The Seventh Circuit inferred the requisite intent to cause harm for purposes of an

assault under § 3A1.2(c)(1) where the defendant threw two punches aimed at a police

officer’s head where the defendant failed to cease after the first punch. United States v.

Alexander,

(7th Cir. 2013). In addition, the Second Circuit noted that

punching an officer constitutes a battery. Delis,

(defining battery as “the

unlawful beating of another” and noting that “[t]he least touching of another’s person

willfully, or in anger, is a battery”) (internal citations omitted)). Battery is a general intent

crime that requires only the intentional performance of the unlawful act.

. In

United States v. Hampton, this Court established that battery of a law enforcement officer

satisfies the assault requirement under § 3A1.2(c)(1).

.

With these principles in mind, we conclude the evidence on this record establishes

that Mitchell’s conduct encompassed the requisite intent to satisfy § 3A1.2(c)(1)’s assault

requirement where Mitchell did not simply throw one reflexive punch at Jones but threw

repeated punches to his head and arms.

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b.

Next, Mitchell contends there is no evidence to support a finding that he knowingly

struck a law enforcement official pursuant to § 3A1.2(c)(1). In an unpublished decision,

this Court held that flashing blue lights on a police cruiser constituted sufficient evidence

to identify the car as an official vehicle to support the § 3A1.2(c)(1) enhancement. United

States v. Cyrus,

(4th Cir. 2007) (No. 06-4380) (upholding

§ 3A1.2(c)(1) where defendant drove into police cars with flashing blue lights while

attempting to evade arrest). In addition, the Seventh Circuit held that a defendant becomes

aware he is dealing with police officers for purposes of § 3A1.2(c)(1) when officers are

dressed in uniform and identify themselves by shouting “police.” United States v.

Robinson,

(7th Cir. 2008).

In the case before us, after Mitchell was awake, police officers and police cars

identified the presence of law enforcement, which establishes Mitchell had reasonable

cause to know officials were present for purposes of § 3A1.2(c)(1). The district court noted

“a half dozen” police officers dressed in uniform were present. (J.A. 023). Police cars

with activated flashing blue lights were positioned in front of Mitchell’s car, and Normile

testified they were positioned in Mitchell’s field of view. Jones unbuckled Mitchell’s

seatbelt and announced police presence. Mitchell stared at them. Jones tried to forcibly

remove Mitchell from the car which “startled” him, and he began to punch Jones. (J.A.

027, 038). During the assault, police announced themselves loudly and repeatedly. On

this record, we conclude that after Mitchell was awakened from unconsciousness, he had

reasonable cause to know he assaulted a police officer for purposes of § 3A1.2(c)(1)

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through the presence of police cars with flashing blue lights, multiple officers dressed in

uniform, and officers announcing their presence immediately before and during the assault.

c.

Last, Mitchell contends he did not create a substantial risk of serious bodily injury

to law enforcement under § 3A1.2(c)(1) because he only committed an unarmed simple

battery that did not result in actual injury. In an unpublished decision, this Court noted that

simple assault on a law enforcement officer during flight is insufficient to warrant

application of the § 3A1.2(c)(1) enhancement. See United States v. Cooper, 185 F. App’x.

286, 288 (4th Cir. 2006) (No. 04-4377) (upholding § 3A1.2 where defendant possessed a

firearm immediately prior to encounter with police officer, struck officer in the face, and

firearm later discharged). But a defendant may still create a substantial risk of serious

bodily injury to law enforcement for purposes of § 3A1.2(c)(1) when the defendant assaults

an officer while unarmed. The Seventh Circuit in United States v. Alexander, upheld

application of § 3A1.2(c)(1) where the defendant did not possess a firearm or struggle for

a firearm, but instead threw two punches aimed at a police officer’s head. 712 F.3d at 978–

79. In addition, the Sixth Circuit declined to limit application of § 3A1.2(c)(1) solely to

scenarios where the victim is physically injured. It held that bodily injury is not a

prerequisite for the enhancement under § 3A1.2(c)(1) to apply. See United States v. Pruitt,

(6th Cir. 2021).

In the case before us, the PSR applied § 3A1.2(c)(1) based on the fact Mitchell

resisted officers and punched Jones twice in the face after police announced their presence.

Jones testified that during the assault he fell and hit his face and used his arm to shield

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himself from Mitchell’s additional strikes. As little as one punch to the head by an unarmed

person may cause a substantial risk of serious bodily injury within the meaning of the

Guidelines. Alexander, 712 F.3d at 978–79. Although Jones did not testify to actual injury,

actual injury is not a requirement for § 3A1.2(c)(1) to apply. See, e.g., Pruitt,

; U.S.S.G. § 3A1.2 cmt. n. 4(B) (stating that “ ‘[s]ubstantial risk of serious bodily

injury’ includes any more serious injury that was risked, as well as actual serious bodily

injury . . . .”). We are convinced on this record that Mitchell’s conduct created a substantial

risk of serious bodily injury to law enforcement that satisfies § 3A1.2(c)(1).

In sum, we affirm application of the six-level enhancement under U.S.S.G.

§ 3A1.2(c)(1) because the district court’s factual findings are not clearly erroneous and

support application of the enhancement.

B.

We next consider whether the district court erred when it applied a four-level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for use of a firearm in connection with

another felony offense. Mitchell argues the court procedurally erred when it applied the

§ 2K2.1(b)(6)(B) enhancement because it failed to find that the firearm facilitated his

possession of cocaine. He also asserts there is insufficient evidence to prove application

of the enhancement. We agree with Mitchell’s contention that the district court

procedurally erred when it failed to find the firearm facilitated or had the potential of

facilitating his possession of cocaine. The evidence in the record does not clearly support

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application of the enhancement, and therefore, we must vacate and remand for

resentencing. 1

The Guidelines provide for a four-level enhancement for possession of a firearm “in

connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B).

Section 2K2.1(b)(6)(B) applies when (1) the defendant committed another felony offense

and (2) the defendant used or possessed a firearm in connection with that offense. United

States v. Blount,

(4th Cir. 2003). The commentary to the Guidelines

provides that a defendant possesses a firearm “in connection with” another felony offense

if the firearm “facilitated, or had the potential of facilitating, another felony offense.”

U.S.S.G. § 2K2.1 cmt. n. 14(A).

In this Circuit, satisfying the “in connection with” requirement under

§ 2K2.1(b)(6)(B) “is not especially burdensome.” Bolden,

. This Court

has found it satisfied when a firearm had “ ‘some purpose or effect’ with respect to the

other offense,” such as where the firearm was “ ‘present for protection or to embolden the

actor.’ ” United States v. Jenkins,

(4th Cir. 2009) (internal citations and

quotations omitted). But the Government cannot meet this burden “if the firearm was

present due to mere ‘accident or coincidence.’ ”

.

1 In light of our conclusion the district court procedurally erred when it failed to make a facilitation finding under § 2K2.1(b)(6)(B), we need not reach the merits of Mitchell’s other argument that there is insufficient evidence he used the firearm in connection with another felony offense.

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When the other felony offense is a drug trafficking crime, a presumption in favor of

facilitation applies when the firearm and the drugs are found in close proximity to one

another; however, the presumption is lost when the other felony offense is simple drug

possession. Bolden,

(citing U.S.S.G. § 2K2.1 cmt. n.14(B)); see also

Jenkins,

. When the other felony offense is simple drug possession, the

district court must find that the firearm facilitated or had the potential to facilitate the

defendant’s possession of illicit drugs under § 2K2.1(b)(6)(B). Id. Absent an express

finding of facilitation from the district court, we may affirm the enhancement only if it is

“so obvious” from the record that “we may [confidently] assume the district court’s fact-

finding role.” Bolden,

.

In United States v. Jenkins, this Court affirmed the application of § 2K2.1(b)(6)(B)’s

four-level enhancement.

. The district court expressly found that “on

the facts [of that] case, . . . the gun [had] the potential of facilitating the possession of crack

cocaine.”

While the defendant possessed both the gun and the cocaine on his person

at the same time, the environment suggested a “heightened need for protection,” where the

defendant took a loaded gun and drugs onto a public city street around midnight.

Based

on the facts of the case, it was reasonable to infer the firearm “was present for protection

or to embolden.”

(internal citation omitted).

In contrast to Jenkins, in the present case, the district court overruled Mitchell’s

objection and applied the four-level enhancement under § 2K2.1(b)(6)(B) without making

a facilitation finding. It concluded the enhancement was “adequately supported by the

testimony and the evidence.” (J.A. 053). It adopted the findings of the PSR, which did not

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include a facilitation finding, and applied the enhancement because the gun was recovered

from Mitchell’s person in proximity to three grams of cocaine seized from his pants pocket.

Because the other felony offense in this case is a drug possession crime, and the district

court did not expressly find that the firearm facilitated, or had the potential to facilitate the

felonious possession of cocaine, our review under the clearly erroneous standard is

precluded. C.f. United States v. Wilkinson,

(4th Cir. 2010). We may

only affirm application of the enhancement if the potential for facilitation is “so obvious”

from the record such that we may assume the district court’s fact-finding role. Bolden,

.

The facts of this case show officers retrieved a loaded gun from Mitchell’s hand

while he was slumped over and unconscious in his car on a rural road at night. Later that

night, officers recovered three grams of cocaine from his pants pocket. While Mitchell

carried the loaded gun and the drugs on his person contemporaneously, proximity alone

fails to establish that Mitchell’s possession of the gun was connected to his possession of

cocaine. See Jenkins,

(noting the different standards for drug trafficking

and drug possession crimes under the Guidelines). Unlike Jenkins, where the court

expressly found the gun had the potential to facilitate the defendant’s possession of cocaine

to embolden or protect, 556 F. 3d at 164, the district court in this case failed to make a

facilitation finding. 2 Absent such a finding, whether Mitchell’s possession of the gun

2 The first dissent cites Jenkins,

and United States v. Woods,

, 804–805 (4th Cir. 2014) (No. 13-4945) for the proposition that the facilitation requirement is satisfied when a firearm is “present for protection or to embolden the actor” (Continued) 18 USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 19 of 29

facilitated, or had the potential to facilitate his possession of drugs to embolden or protect

is open to more than one interpretation.

For instance, the Government suggests the loaded gun had the potential to

embolden and protect Mitchell’s possession of cocaine because he carried both outside his

home while situated on a country road at night. But the record does not establish Mitchell

carried the loaded gun and the cocaine onto a public city street like the defendant in Jenkins,

, such that we may plainly infer the gun emboldened or protected the illicit

possession of drugs. Instead, Mitchell possessed the loaded gun and the drugs while in his

car on a secluded and rural road. Also, Mitchell’s counsel suggested he carried the gun for

an alternate reason—because he drives a truck in Kinston, North Carolina. An appellate

court is prohibited from presuming the sentencing court has “silently adopted arguments

presented by a party.” Carter,

.

Because the district court made no express finding of facilitation, and the gun’s

potential to facilitate the possession of cocaine is not “so obvious” from the record, we are

constrained to conclude that we are unable to review application of § 2K2.1(b)(6)(B).

and this Court has “consistently affirmed application of the Section 2K2.1(b)(6)(B) enhancement to defendants who carried both a firearm and cocaine near or on their person in public.” First Dissent Op., at 22. But the district court in those cases, unlike here, made an express facilitation finding and this Court applied the clear error standard of review. See Jenkins,

; Woods, 594 Fed. App’x at 803–804. Clear error affords greater deference to the district court’s factual findings than the standard of review applicable here, where the district court failed to state factual findings to support application of the enhancement. In this instance, we may only affirm the district court’s fact-finding role if it is “so obvious” from the record that the enhancement should be applied. Bolden,

.

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Bolden,

. Without deciding whether the application of § 2K2.1(b)(6)(B) is

supported under the facts of the present case, we restate that the district court must first

evaluate whether evidence exists to support a finding that Mitchell’s possession of the gun

facilitated or had the potential to facilitate his possession of drugs. Bolden,

; Jenkins, 566 F.3d at 164–65. It must place on the record an “ ‘individualized

assessment’ based on the particular facts of the case before it” because an appellate court

may not guess at the district court’s rationale in search of clues that may otherwise explain

a sentence. Wilkinson,

(internal citations omitted). Accordingly, we vacate

Mitchell’s sentence and remand for resentencing.

III.

For the reasons stated, we affirm in part, vacate Mitchell’s sentence, and remand for

resentencing consistent with this opinion.

AFFIRMED IN PART, VACATED, AND REMANDED WITH INSTRUCTIONS

20 USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 21 of 29

RUSHING, Circuit Judge, concurring in part and dissenting in part:

Around 11:30 p.m. on a Sunday night, Mitchell was intoxicated and passed out

behind the wheel of his car at a stop sign on a public street in the Kinston city limits. A

passerby noticed he was slumped over with a gun in his hand at the intersection and alerted

a nearby police officer in his cruiser. Testimony at Mitchell’s sentencing hearing revealed

that Mitchell was sitting in his car with a loaded gun in his right hand, resting on his lap.

Below the firearm, in his right pants pocket, Mitchell concealed a plastic baggie containing

3 grams of cocaine. The only explanation offered for the weapon at the hearing was that

Mitchell “drives a truck at night in Kinston” for work, implying that the streets of Kinston

are dangerous after dark. J.A. 22.

After hearing the evidence and actively questioning witnesses, the district court

found the enhancement for possessing a firearm in connection with another felony offense

“adequately supported by the testimony and the evidence.” J.A. 53; see U.S.S.G.

§ 2K2.1(b)(6)(B). The other felony offense, the parties agreed, was possession of cocaine,

so the enhancement could apply only if the firearm “facilitated, or had the potential of

facilitating,” that possession. U.S.S.G. § 2K2.1 cmt. n.14(A). Because the potential for

facilitation on these facts is “so obvious” under our precedent, I would affirm. United

States v. Bolden,

(4th Cir. 2020).

“We have repeatedly held, as have our sister circuits, that possessing a firearm may

give a sense of security that emboldens a person to venture from his or her home with

valued drugs that another person might want to steal.” United States v. Woods,

, 804–805 (4th Cir. 2014) (per curiam). Because the facilitation requirement is

21 USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 22 of 29

satisfied when a firearm is “present for protection or to embolden the actor,” we have

consistently affirmed application of the Section 2K2.1(b)(6)(B) enhancement to defendants

who carried both a firearm and cocaine near or on their person in public. United States v.

Jenkins,

(4th Cir. 2009) (internal quotation marks omitted). For

example, in Jenkins, we found the enhancement supported where the defendant possessed

a loaded revolver and 0.29 grams of cocaine on a public street close to midnight.

. In Woods, we found the enhancement supported where the defendant went to a

bar with a loaded handgun in his waistband and 3.75 grams of cocaine in the cuff of his

pants leg.

. And in United States v. Maddox, we found the

enhancement supported when cocaine was located on the driver’s side floorboard of the

vehicle the defendant had been driving, “in close proximity to” the defendant’s firearm.

(4th Cir. 2011) (per curiam).

Likewise here, Mitchell’s possession of a loaded gun in his hand had the purpose or

effect of emboldening him to carry 3 grams of cocaine in his pocket on a public street late

at night. Indeed, it “strains credulity” to interpret the facts any other way.

This is not

a case of “proximity alone,” as the majority claims. Supra, at 18. Rather, Mitchell carried

both the loaded gun and the cocaine on his person in public at night, a context we have

repeatedly concluded supports an inference that the firearm emboldened and protected the

defendant’s drug possession. More than that, the police officers found Mitchell with the

loaded gun in his hand—it was “accessible and ready for use,” which “further suggests that

it was present for protection or to embolden” him. Jenkins,

(internal

quotation marks omitted). Although Mitchell’s counsel suggested he carried the gun

22 USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 23 of 29

because driving a truck in Kinston is dangerous, Mitchell was no longer driving his truck

when the officers found him but was in his personal vehicle. Even if the presence of a gun

secured in Mitchell’s car on his drive home from work might be merely coincidental, the

presence of that gun loaded and in his hand is not. The only things Mitchell could have

sought to protect with the gun at that point were himself and his personal property,

including the valuable cocaine in his pocket.

The majority attempts to distinguish Jenkins on the ground that Mitchell was (1) in

his car and (2) on a “secluded and rural road” instead of a “public city street.” Supra, at

19. Respectfully, these supposed differences cannot distinguish away our caselaw. See

Woods,

(rejecting “an unduly narrow reading of our decision in

Jenkins”). The defendant in Maddox was also in his car when stopped, yet we found the

enhancement appropriate even though the cocaine and gun were not on his person. See

. While Kinston may not be as busy as Charleston after dark, this

intersection was within the city limits and undisputedly in a city dangerous enough that a

truck driver would carry a gun for protection. And however “secluded” the intersection

was, supra, at 19, it saw enough activity for a bystander both to spot Mitchell in his car and

to approach a nearby police officer to report the sighting. In these circumstances, the

presence of a loaded firearm in Mitchell’s right hand resting atop the 3 grams of cocaine

in his pocket was not the product of “accident or coincidence” but rather was “for

protection or to embolden” Mitchell in possessing his valuable drugs in public. Jenkins,

(internal quotation marks omitted).

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For these reasons, I respectfully dissent from Part II.B of the majority’s opinion.

But I agree with the majority’s decision to affirm application of the six-level enhancement

under U.S.S.G. § 3A1.2(c)(1), so I concur in Part II.A of that opinion.

24 USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 25 of 29

BARBARA MILANO KEENAN, Senior Circuit Judge, concurring in part and dissenting in part:

I am pleased to concur in Part II.B of the majority opinion addressing the four-level

enhancement for possessing a firearm “in connection with” another felony offense.

U.S.S.G. § 2K2.1(b)(6)(B). 1 However, I write separately with respect to Part II.A because,

in my view, the district court procedurally erred by failing to place on the record an

individualized assessment of the facts related to the six-level enhancement for knowingly

assaulting a law enforcement officer “in a manner creating a substantial risk of serious

bodily injury” (the official victim enhancement). U.S.S.G § 3A1.2(c)(1); United States v.

Wilkinson,

(4th Cir. 2010). Applying the limited scope of appellate

review permitted following such error, I would hold that it is not “so obvious” from the

record that the enhancement applies in this case. See United States v. Bolden,

(4th Cir. 2020).

In the district court, Mitchell objected to the application of the official victim

enhancement both in response to the presentence report (PSR) and at sentencing. The

district court did not engage with Mitchell’s objection, but merely concluded without

further explanation that Mitchell’s “behavior and conduct did create a substantial risk of

serious bodily injury to persons involved, the law enforcement officers.”

1 I agree with Judge Benjamin that Mitchell’s occupancy of his vehicle materially distinguishes the facts of this case from the facts in United States v. Jenkins,

(4th Cir. 2009), in which the defendant carried a gun and cocaine in public.

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This brief conclusory statement is not an explanation. The district court’s general

reference to Mitchell’s “behavior and conduct” does not clarify why the district court

overruled Mitchell’s objection, what facts supported the conclusion that Mitchell knew that

Jones was a law enforcement officer, or what evidence showed that the assault itself created

a substantial risk of serious bodily injury. 2 As a court of review, it is not our function to

“guess at the district court’s rationale, searching the record for . . . any other clues that

might explain” the court’s sentencing decision. See United States v. Burnley,

(4th Cir. 2021) (omission in original) (citation omitted). Rather, when the district

court fails to provide a reasoned explanation, we typically vacate the defendant’s sentence

and remand for resentencing. See, e.g., Bolden,

(vacating sentence and

remanding for resentencing because the district court did not make a finding as to an

element of the sentencing enhancement, and did not indicate “why [it] might have thought”

the element was satisfied).

When, as here, the district court has procedurally erred, our review of the court’s

application of an enhancement is severely circumscribed. See Wilkinson, 590 F.3d at 269–

70. As the majority acknowledges in its analysis of the firearm enhancement, a district

court’s decision benefits from the more generous clear error standard only if the court

2 Unlike the majority, I am not convinced that the district court’s adoption of the factual findings in the PSR remedied these deficiencies. See Op., at 10; cf. United States v. Morgan,

(4th Cir. 1991) (holding that “if the district court decides to adopt the proposed findings in the presentence report as its resolution of disputed facts, the record must be clear regarding which disputed issues were resolved by the adoption”). The district court’s generic reference to the proposed findings in the PSR does not resolve the issues raised by Mitchell.

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explains why it reached its conclusion. Op., at 17; see United States v. Steffen,

(4th Cir. 2013) (describing the clearly erroneous standard). Otherwise, we apply

a more rigorous standard of review, affirming the district court only if the facts supporting

the enhancement are “so obvious from the record that we may assume the district court’s

fact-finding role ourselves.” Bolden,

.

Considering the record in accordance with this narrower scope of review, I would

not address the application of the official victim enhancement in the present case. Even if

we assume that Mitchell knew Officer Jones was a law enforcement officer when he struck

him, it is not obvious from the record that Mitchell created a substantial risk of serious

bodily injury when he twice struck Officer Jones. 3

Unlike the majority, I am not persuaded that United States v. Cooper, 185 Fed.

App’x 286 (4th Cir. 2006) and United States v. Alexander,

(7th Cir. 2013)

dictate the outcome of this appeal. 4 See Op., at 14. First, in those cases, the court reviewed

3 In its analysis, the majority additionally relies on testimony that Mitchell struck Officer Jones’ arm “multiple times” after Jones fell. Op., at 4, 12. But, contrary to this testimony, the adopted factual findings in the PSR fail to mention any additional strikes before Mitchell “lock[ed] his right hand to the steering wheel.” 4 The majority also cites United States v. Pruitt,

(6th Cir. 2021), for the proposition that the absence of actual bodily injury does not preclude application of the official victim enhancement. Op., at 14–15. I agree with this statement of law, and I also observe that the court’s other holding in Pruitt remains highly relevant to our analysis. There, the Sixth Circuit held that the district court failed to make the requisite factual findings and, accordingly, that it “must vacate the application of the official-victim enhancement” and remand for resentencing. Pruitt,

(“We do not know whether the district court found that the requisite assault creating a substantial risk of serious harm occurred when [the defendant] grappled with [the officer] and sought to grab his firearm, or whether it occurred when [the defendant] turned towards [the officer] while (Continued) 27 USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 28 of 29

the application of the sentencing enhancement for clear error which, as noted above, applies

only if the district court has provided an explanation sufficient to enable appellate review.

See Cooper, 185 Fed. App’x at 287; Alexander,

.

Moreover, material factual distinctions between this case and those cases limit their

relevance. In Cooper, the defendant got out of the car with a loaded gun, dropped the gun

during a brief struggle with an officer, and struck the officer twice in the face. See 185

Fed. App’x at 288. In Alexander, the defendant struck an officer in the head, tried to hit

the officer again, was wrestled to the ground, struggled to his feet, and fled before a police

dog caught and subdued him. See

. The presence of a weapon in Cooper,

the defendant’s flight in Alexander, and the prolonged resistance in both cases distinguish

them from this case. Here, the officers removed Mitchell’s weapon while he was still

sleeping, and Mitchell did not attempt to flee the scene after he awakened. Additionally,

Mitchell was in his car, which was fixed in the “park” position, during the assault. And

immediately after striking Jones, Mitchell “lock[ed] his right hand to the steering wheel.”

Thus, the factual circumstances in Cooper and Alexander do not lend comparative support

for a conclusion that it was “so obvious” that Mitchell created a substantial risk of serious

bodily injury when he struck Officer Jones. 5 See Bolden,

.

running away, and, if so, whether the district court found [the defendant] raised his weapon or repositioned it to hold it by the grip.”). 5 The majority also cites Alexander to support its statement that “[a]s little as one punch to the head by an unarmed person may cause a substantial risk of serious bodily (Continued) 28 USCA4 Appeal: 22-4284 Doc: 54 Filed: 08/17/2023 Pg: 29 of 29

For these reasons, I would vacate the district court’s application of the official

victim enhancement and remand the case for resentencing to have the district court explain

fully its application of both disputed enhancements.

injury.” Op., at 15. I do not disagree that, in some circumstances, that might be the case. But the majority fails to acknowledge the succeeding sentences in Alexander:

We are not holding or even suggesting that every swing of a fist qualifies for the upward adjustment under [the official victim enhancement]. Applying the Guideline standard to the specific circumstances of a case is the responsibility of the district judge.

. Under the posture of this case, in which the district court failed to provide a sufficient explanation for its reasoning or to identify what particular circumstances created a “substantial risk of serious bodily injury,” it is not “so obvious” that the two strikes would have supported the application of the enhancement. Bolden,

.

29