USCA4 Appeal: 22-4442 Doc: 57 Filed: 01/12/2024 Pg: 1 of 16

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4442

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ANTHONY JAMES GROSS,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Max O. Cogburn, Jr., District Judge. (1:21−cr−00046−MOC−WCM−1)

Argued: December 6, 2023 Decided: January 12, 2024

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Agee joined.

ARGUED: Melissa Susanne Baldwin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: John G. Baker, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 22-4442 Doc: 57 Filed: 01/12/2024 Pg: 2 of 16

WILKINSON, Circuit Judge:

Anthony Gross pleaded guilty to unlawful possession of a firearm after he shot at

and injured a man in his family’s driveway. The district court sentenced Gross to 63

months’ imprisonment and 3 years of supervised release. Gross challenges two aspects of

the court’s Sentencing Guidelines calculation: its application of a sentencing enhancement

for causing “serious bodily injury” and its cross-reference to the aggravated assault

guideline. At the core of Gross’s appeal is his contention that we should review the district

court’s finding of serious bodily injury de novo.

We disagree. To adopt the de novo standard here would turn law in a direction

inhospitable to factfinders. The district court’s finding that Gross caused serious bodily

injury was an application of the Guidelines that turned on a question of fact, and thus we

review it for clear error. In so doing, we find that the district court did not clearly err in its

Guidelines calculation and affirm its judgment.

I.

A.

On the morning of May 17, 2021, Anthony Gross, his parents, and his girlfriend

were at his family’s home in Marshall, North Carolina. Gross’s girlfriend told the others

that a man whom they had known for years, A.C., had sexually assaulted her the night

before. The family had been letting A.C. stay over while he went through a period of

addiction and homelessness, and nearly everything he owned was at their house. A.C.

himself, however, was nowhere to be found.

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That soon changed. Around 10:00 am, A.C. drove up on a motorcycle, parked on

the family’s driveway, and pushed his helmet up onto his head. Gross’s mom saw A.C. in

the driveway and told him he needed to leave. A.C. retorted that he had a right to retrieve

his belongings. Gross’s father then came out to talk to A.C., who remained perched on his

bike, refusing to leave.

Gross walked out onto the porch, shirtless and holding a long gun. A.C. was

undeterred. He stayed on his bike and demanded that he be allowed to retrieve his property.

Gross stepped off the porch and, gun in hand, walked down the driveway towards A.C. He

stopped about three car lengths away, raised his firearm, and fired a shot. According to

A.C.’s testimony, Gross had said he was going to shoot A.C. and pointed the gun at him

before firing. The shot hit the ground, causing a puff of dust to rise up. Three metal

fragments—either from the shot, the motorcycle, or another nearby object—hit A.C. near

his right eye. He began bleeding and, once he got his wits about him, ran up a hill into the

woods to take refuge and find help. He eventually found a neighbor who took him in and

called 911.

While waiting for emergency services to arrive, A.C. felt that “the pain was getting

pretty bad” and was “nervous,” “nauseous,” and “shocked.” J.A. 84. Paramedics picked

him up and drove him in an ambulance to the emergency room at Mission Hospital in

Asheville. A.C. initially told the paramedics that he was not in pain, potentially due to the

“adrenaline” that had “kicked in” when he was shot. Id. at 82. Indeed, once he arrived at

the hospital, A.C. told doctors that he was in pain, and he received fentanyl and Benadryl

to quell it. The doctors also examined his eye and took a CAT scan. The scan revealed

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three metal fragments, ranging from 1 to 3 millimeters wide, lodged near his eye. The

doctors did not remove the fragments to avoid exacerbating the bruising and swelling

around his eye. One doctor expressed surprise that A.C. had suffered a gunshot wound

because his eye was fully functional and his injuries were “superficial.” Id. at 116.

A.C. was not admitted as a patient at the hospital, did not require surgery, and left

the emergency room after a few hours. But that night, he went to Pardee Hospital in

Hendersonville for a second opinion, as he was still experiencing “real sharp pain.” Id. at

90. He testified that it felt “like something was poking [him] in [his] eye” and that light

was affecting his vision to the point where he “couldn’t really see.” Id. When asked to

compare the pain to previous experiences, A.C. said it was “[p]robably one of the worst

pains I [have] had.” Id. at 84.

In the following days, A.C. continued to have “real sharp pain in the back of [his]

eye.” Id. at 102. While his visible injuries dissipated within two weeks, A.C. reported that

he has experienced chronic sinus problems since the incident. He testified that his sinuses

were “constantly draining . . . like [he has] an infection,” id. at 92, and speculated that this

could be because of an allergy to the metal fragments that remained near his eye. A forensic

pathologist who provided expert testimony for the defense countered that the fragments

were unlikely to cause congestion because they were located “nowhere near” his sinuses.

Id. at 118. A.C. testified, however, that he remained “[k]ind of shocked about the whole

situation” and was struggling to process the ordeal emotionally. Id. at 93.

B.

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This shooting was not Gross’s first encounter with the law. He had already been

convicted of numerous criminal offenses, including six felonies. And on June 1, 2021, a

grand jury in the Western District of North Carolina indicted Gross with knowing and

unlawful possession of a firearm by a felon in violation of

(g)(1). Gross

pleaded guilty on November 17, 2021. He admitted to being a felon in unlawful possession

of a firearm and agreed to the government’s statement of facts.

Gross was separately charged in North Carolina court with possession of a firearm

by a felon,

, and felonious assault with a deadly weapon

with intent to kill or inflicting serious injury,

at § 14-32.

In preparation for the sentencing hearing, the U.S. Probation Office created a

presentencing investigation report (PSR) which computed the Sentencing Guidelines range

for Gross’s offense. The PSR calculated the total offense level by applying a cross-

reference and two sentencing enhancements. First, because Gross used the firearm in

connection with the commission of another offense (North Carolina felonious assault with

a deadly weapon with intent to kill or inflicting serious injury), the PSR cross-referenced

the guideline of the most analogous substantive federal offense (U.S.S.G. § 2A2.2

aggravated assault) to find a base offense level of 14. See U.S.S.G. §§ 2K2.1(c)(1), 2X1.1,

2A2.2(a). Second, the PSR added 5 offense levels because Gross discharged the firearm.

See id. at § 2A2.2(b)(2)(A). Third, the PSR added an additional 5 offense levels because it

found Gross caused “serious bodily injury.” Id. at § 2A2.2(b)(3)(B). Upon reaching an

offense level of 24 based on the cross-reference and the two enhancements, the PSR

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included a 3-level reduction for acceptance of responsibility under § 3E1.1 to reach a total

offense level of 21.

Next, the PSR found Gross’s criminal history category to be VI, the highest possible

option. Based on the total offense level of 21 and the criminal history category of VI, the

PSR determined that the Guidelines imprisonment range was 77 to 96 months.

Gross submitted written objections to two elements of the PSR’s Guidelines

calculation and renewed these objections at the July 19, 2022 sentencing hearing. First,

Gross argued that the court should not apply a sentencing enhancement for serious bodily

injury because he only caused ordinary bodily injury. Second, he claimed that the court

should not cross-reference the aggravated assault guideline because he neither intended to

cause bodily injury nor caused serious bodily injury. See U.S.S.G. § 2A2.2 cmt. n.1

(defining aggravated assault as “felonious assault that involved (A) a dangerous weapon

with intent to cause bodily injury (i.e., not merely to frighten) with that weapon; [or] (B)

serious bodily injury”). Gross called a forensic pathologist with expertise in gunshot

wounds as an expert witness to support his claim that only ordinary bodily injury occurred.

Additionally, Gross argued for a downward variance because he had a traumatic brain

injury that affected his impulsivity at the time of the shooting and was amenable to

treatment.

The government countered that the preponderance of evidence showed that Gross

caused serious bodily injury and thus both sentencing enhancements should apply. It called

A.C. as a witness to substantiate its argument that he had sustained serious bodily injury.

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After hearing from the parties and their witnesses, the district court overruled

Gross’s objections. It stated, “the injuries as described with regard to the eye and to what

the victim had, the fact that we have hospital records backing it up and him going to the

hospital in the ambulance, all those things together with the government putting that

evidence on is going to be enough.” J.A. 133. The court went on to “find that th[e injury]

is a serious injury. It’s not on the high side of arm amputation or something like that, but

it’s serious and it could ultimately cause problems.” Id. at 133–34. It later reiterated that

A.C. “suffered . . . serious bodily injury,” id. at 140, and observed that the injury “meets

the test of serious injury,” id. at 141. The court also determined that “the cross-reference

does apply.” Id. at 134. It thus adopted the PSR’s Guidelines calculation, finding that the

range was “properly calculated at 77 to 96 months.” Id.

The court did, however, credit Gross’s request for a downward variance due to his

brain injury. It applied a 2-level reduction to the total offense level, bringing Gross’s

Guidelines range to 63 to 78 months. The court then sentenced Gross to 63 months’

imprisonment and 3 years of supervised release. Gross timely appealed.

II.

Gross contends that his sentence was procedurally unreasonable because the court

failed to calculate his Guidelines range correctly. See Gall v. United States,

(2007) (stating that improper calculation of the Guidelines range renders a sentence

procedurally unreasonable). In so arguing, Gross relies upon the same two objections to

the Guidelines calculation that he raised below. First, he claims that the district court erred

in applying the 5-level enhancement for serious bodily injury because the record only

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supported a finding of ordinary bodily injury. Second, he claims that the court’s findings

did not support its cross-reference to the aggravated assault guideline.

A.

We start with the standard of review, which is a primary point of contention between

the parties in this case. This court reviews a challenge to a sentence’s procedural

reasonableness under a “‘deferential abuse-of-discretion standard.’” United States v.

McCain,

(4th Cir. 2020) (quoting Gall,

). Both parties

acknowledge that, when assessing a Guidelines calculation under this standard, we review

“the district court’s factual findings for clear error and its legal conclusions de novo.”

United States v. Pena,

(4th Cir. 2020). But they disagree about whether

the application of the Guidelines to the facts of the case should be reviewed for clear error

or de novo. Gross posits that the Guidelines application here “turns on a legal

interpretation,” and thus “de novo review is appropriate.” United States v. Dodd,

(4th Cir. 2014). The government, on the other hand, argues that a district court’s

decision to apply an enhancement for serious bodily injury is reviewed for clear error. See

United States v. Saint Louis,

(4th Cir. 2018).

We hold that a district court’s finding that a defendant caused serious bodily injury

is reviewed for clear error when the district court applied the correct legal standard, as it

did here. The district court used the Guidelines to identify the proper standard of law: that

it should increase the total offense level by 5 levels if it found that the victim sustained

serious bodily injury. U.S.S.G. § 2A2.2(b)(3)(B). It then applied this legal standard to its

factual findings to determine that Gross’s shooting caused A.C. to sustain “serious bodily

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injury.” J.A. 140. The court concluded that “the injury that was suffered . . . meets the test

of serious injury,” id. at 141, after it considered “the injuries as described” by the victim

and the supporting “hospital records.” Id. at 133. Because this application of the correct

legal standard turned primarily on questions of fact, we review it for clear error. See United

States v. Reed,

, 404–05 (4th Cir. 2023); United States v. Adepoju,

, 256–57 (4th Cir. 2014); United States v. Steffen,

(4th Cir. 2013);

United States v. ReBrook,

(4th Cir. 1995).

Gross cites United States v. Lewis,

(4th Cir. 2021), for the proposition

that sentencing enhancements based on findings of bodily injury under § 2A2.2(b)(3) are

reviewed de novo. In Lewis, this court conducted de novo review to find that a 2-level

sentencing enhancement for ordinary bodily injury was procedurally unreasonable. Id. at

750. But there, the district court had disregarded the Fourth Circuit’s legal standard for

bodily injury as set out in United Sates v. Lancaster,

, 209–10 (4th Cir. 1993)

(per curiam). After “guess[ing]” that the victim had suffered a minor concussion, the court

found that the bodily injury sentencing enhancement applied because the victim “just ha[d]

to have an injury that caused him to seek medical attention, and he did.” Lewis,

. This test contradicted the legal standard established in Lancaster, which required a

district court, in determining that a defendant caused bodily injury, to make specific factual

findings beyond merely stating that the injury caused the victim to seek medical attention.

See Lewis, 18 F.4th at 748–51 (citing Lancaster, 6 F.3d at 209–11 & n.2). Because the

district court in Lewis fashioned its own legal standard that was at odds with circuit

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precedent for determining what type of injury qualified for a sentencing enhancement, its

decision was appropriately reviewed de novo.

Unlike in Lewis, the district court here made no statements that contradicted existing

circuit precedent on the definition of serious bodily injury. Nor did the court formulate any

rules of general application for serious bodily injury. Rather, it merely explained why its

factual findings established that the legal standard for serious bodily injury had been met.

We therefore review for clear error. See United States v. Saint Louis,

(4th Cir. 2018) (applying clear error standard in upholding district court’s application of

sentencing enhancement for serious bodily injury); United States v. Maynard, No. 22-4178

at *12 (4th Cir. 2024) (slip op.) (same); Buford v. United States,

, 64–66 (2001)

(holding that a Guidelines application decision should be reviewed deferentially on

appeal).

Gross further contends that the district court did not apply the correct legal standard

because it did not explicitly reference the Guidelines commentary that sets out three

categories of serious bodily injuries. See U.S.S.G. § 1B1.1 cmt. n.1(M). We agree that the

Guidelines commentary is generally authoritative. United States v. Moses,

(4th Cir. 2022) (citing Stinson v. United States,

(1993)). But we reject

the notion that a district court must mechanically tick through the categories of serious

bodily injury in the Guidelines commentary or else face de novo scrutiny. Absent evidence

to the contrary, we presume that the district court knew the law and applied it in making

its decisions. See United States v. Ali,

(4th Cir. 2021). Because the court

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here did not state it was relying on a rule of general application that differed from the one

set out in the Guidelines, we refuse to assume it disregarded the correct legal standard.

It makes good sense for us to exhibit due deference when reviewing a district court’s

finding of serious bodily injury. Too often appellate panels are dragged down into second-

guessing district courts’ fact-intensive applications of the Guidelines de novo, emboldened

by appellants’ assurances that we are merely resolving questions of law. But determining

whether a victim’s wounds satisfy the definition of serious bodily injury is an application

of the Guidelines that “depend[s] on an evaluation and weighing of the factual details, even

though the details themselves may have been undisputed.” United States v. McVey,

(4th Cir. 2014). As we noted in Lancaster,

[Whether an injury qualifies for a sentencing enhancement] should be determined by a very factually-specific inquiry which takes into account a multitude of factors, some articulable and some more intangible, that are observable in hearing the evidence presented on the injury. Because the district court hears this evidence, it is by far best-situated to assess these myriad factors and determine whether a “significant injury” has occurred. We, as the court of appeals, are in a far less advantageous position to make this determination as we have before us only the written record and this record is often inadequate in conveying many of these factors. As a result of our position, our ability to review the district court’s determination of whether a “significant injury” has occurred is quite limited and we will disturb it only when the record reveals that the district court clearly erred.

(upholding ordinary bodily injury finding on clear error review).

The essentially factual determination of whether serious bodily injury occurred thus

is reviewed for clear error, see Saint Louis,

, except where the district court

explicitly identified and applied the wrong legal standard, see Lewis, 18 F.4th at 750–51.

See also United States v. Gasca-Ruiz,

(9th Cir. 2017) (en banc)

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(holding that an application of the serious bodily injury enhancement should be reviewed

with deference because “[d]istrict courts are better situated than appellate courts to make

the fact-specific determinations inherent in virtually all guideline-application decisions”).

Clear error review is particularly appropriate where, as here, the district court heard directly

from the victim who suffered the injury. To hold otherwise would be to erode the authority

that district courts have to hear evidence, find facts, and draw inferences from them.

Because we are reviewing for clear error, we uphold the district court’s

determination so long as it was “plausible in light of the record viewed in its entirety.”

United States v. Ferebee,

(4th Cir. 2020). But if we are “left with the

definite and firm conviction that a mistake has been committed,” we reverse and remand

for resentencing. United States v. Dugger,

(4th Cir. 2007).

B.

We hold that the district court did not clearly err in finding that Gross caused A.C.

to sustain serious bodily injury. The Guidelines commentary defines “serious bodily

injury” as an injury (1) “involving extreme physical pain”; (2) involving “the protracted

impairment of a function of a bodily member, organ, or mental faculty”; or (3) “requiring

medical interventions such as surgery, hospitalization, or physical rehabilitation.” U.S.S.G.

§ 1B1.1 cmt. n.1(M). Because “this definition uses the disjunctive ‘or,’ the Guideline

applies where the victim suffered any one of these ailments.” United States v. Flores,

(6th Cir. 2020). Therefore, “[e]xtreme physical pain” is enough to sustain a

finding of “serious bodily injury,” even if the victim “did not seek out medical intervention

and did not suffer protracted impairment.” Saint Louis,

.

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Here, the district court was within its discretion to find that A.C. sustained an injury

involving extreme physical pain. A.C. emphasized the painfulness of the injury throughout

his testimony at the sentencing hearing. He recounted that it caused “real sharp pain” that

felt “like something was poking [him] in [his] eye.” J.A. 90. And he assessed that it was

“[p]robably one of the worst pains I [have] had.” Id. at 84. Moreover, the medical records

from Mission Hospital established that A.C. was given fentanyl—a potent pain

management drug—to mitigate the pain he experienced while in the emergency room.

Gross contends that the evidence cannot substantiate a finding that A.C. suffered

extreme physical pain. He posits that A.C. denied he was in pain when he was in the

ambulance, that the expert forensic pathologist asserted that A.C.’s injury would merely

cause “some pain or discomfort,” id. at 125, and that the hospital records referred to the

injury as “superficial,” id. at 204. But the district court was best-positioned to evaluate and

weigh these factual details. See Lancaster,

. Indeed, Gross raised these

arguments below, and the district court rejected them. We therefore conclude that the court

did not clearly err in finding that A.C. suffered extreme physical pain—and, hence, serious

bodily injury—when a gunshot caused three metal fragments to lodge near his eye,

resulting in “[p]robably one of the worst pains” he had ever experienced. J.A. 84.

A.C.’s testimony of a protracted impairment to his nasal function also supported the

court’s finding of serious bodily injury. See U.S.S.G. § 1B1.1 cmt. n.1(M). A.C. recounted

that, since the injury, his sinuses have been “constantly draining . . . like [he had] an

infection.” J.A. 92. The defense’s expert witness questioned the causal relationship

between A.C.’s congestion and the injury. But it was within the court’s discretion to assess

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that A.C.’s sinus issue resulted from the injury. And this ongoing issue could constitute a

“protracted impairment” sufficient to establish serious bodily injury under U.S.S.G. §

1B1.1 cmt. n.1(M).

Gross vigorously disputes all this, arguing that the district court strayed from its

factfinding role on the way to what was a legal conclusion. But drawing inferences from

primary facts does not elevate the standard of review to one of de novo. Take the primary

fact that three metal fragments were lodged near the victim’s eye. Inferring that those

fragments made A.C.’s testimony of extreme physical pain more credible was well within

the sentencing court’s observational competency. Credibility findings are but another

species of factual determination, see Merzbacher v. Shearin,

(4th Cir.

2013), and inferences drawn from primary facts to the ultimate fact of serious bodily injury

afford no basis for a diminution of appellate deference. They are all part of the family of

facts and, as such, must be treated by reviewing courts accordingly.

The upshot is that the record provided ample evidence for the district court to find

that the victim sustained serious bodily injury as defined in the Guidelines commentary.

We therefore cannot state that the court’s judgment was clearly erroneous.

C.

Because we affirm the district court’s finding of serious bodily injury, we also

affirm its decision to cross-reference the aggravated assault guideline. Gross conceded at

oral argument that his challenge to the cross-reference rests on his claim that he did not

inflict serious bodily injury—a claim we resolved against him. We therefore reject Gross’s

challenge to the cross-reference.

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In doing so, we note that the district court correctly applied the cross-reference

provision in U.S.S.G. § 2K2.1(c)(1). “[W]hen a felon in possession of a firearm uses that

firearm in connection with another offense, . . . the court must apply the offense level for

that other offense, thereby cross-referencing it to determine the ultimate sentence,” if the

other offense’s level “is higher than the offense level under § 2K2.1.” United States v.

Burns,

(4th Cir. 2015) (citing U.S.S.G. § 2K2.1(c)(1)). This requires the

court to determine (1) what that “other offense” is and (2) its offense level under the

Guidelines. When the other offense is not in the Guidelines’ Statutory Index, the court must

cross-reference “the most analogous guideline.” U.S.S.G. § 1B1.2(a); see also id. at

§§ 2X1.1 cmt. n.3; 2X5.1.

Here, the PSR identified the other offense as North Carolina felonious assault with

a deadly weapon with intent to kill or inflicting serious injury—the crime that Gross was

charged with in state court. See

. Because this state law offense

is not in the Statutory Index, the PSR concluded that the aggravated assault guideline in

U.S.S.G. § 2A2.2 was the most analogous guideline. Upon determining that the aggravated

assault guideline resulted in a higher offense level, the PSR cross-referenced it.

Gross objected to the cross-reference, and the district court heard arguments from

the parties about whether it should adopt it. Ultimately, the court chose to adopt the PSR’s

finding “that the cross-reference does apply.” J.A. 134. It was well within the court’s

discretion to do so because the aggravated assault guideline—which defines aggravated

assault as “felonious assault that involved . . . serious bodily injury,” U.S.S.G. § 2A2.2 cmt.

n.1—was the most analogous guideline to North Carolina felonious assault with a deadly

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weapon inflicting serious injury,

. Moreover, because we

upheld the district court’s finding of serious bodily injury, Gross’s claim that his conduct

did not justify the cross-reference to the aggravated assault guideline is meritless.

III.

Courts opine often on separation of powers. But separation of functions has its own

importance. To leave de novo review loose and on the prowl is to devour the tasks that

district courts do best. The trial court found the pertinent fact here, and we readily affirm

its judgment.

AFFIRMED

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