                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0605n.06

                                           No. 08-6518                                    FILED
                                                                                     Aug 23, 2011
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )   ON APPEAL FROM THE
                                                         )   UNITED STATES DISTRICT
HAROLD KENNY WAGERS,                                     )   COURT FOR THE EASTERN
                                                         )   DISTRICT OF MICHIGAN
       Defendant-Appellant,                              )
                                                         )



       Before: SUTTON and STRANCH, Circuit Judges; WELLS, District Judge.*

       WELLS, District Judge:          Defendant-Appellant Harold Kenny Wagers (“Wagers”)

challenges the district court’s assessment of a sentencing enhancement for the possession of a

firearm in connection with another felony. Pursuant to the United States Sentencing Guidelines

(“USSG”) § 2K2.1(b)(6), the district court applied a four-point enhancement to Wagers’ base-level

offense of felon-in-possession after finding the Appellant’s brandishing of the weapon exhibited

wanton endangerment under Kentucky Revised Statute (“KRS”) §508.060.1 Wagers continues to



       *
         The Honorable Lesley Wells, United States District Judge for the Northern District of Ohio,
sitting by designation.
       1
        KRS § 508.060 Wanton endangerment in the first degree.
(1) A person is guilty of wanton endangerment in the first degree when, under circumstances
manifesting extreme indifference to the value of human life, he [or she] wantonly engages in conduct
which creates a substantial danger of death or serious physical injury to another person.
(2) Wanton endangerment in the first degree is a Class D felony.
No. 08-6518
United States v. Wagers

justify his action as self-defense. The government contends, as it did during the sentencing hearing,

that Wagers may not avail himself of a claim of self-defense in justifying wielding a loaded shotgun

unless he reasonably believed “that such force [was] necessary to protect himself against death [or]

serious physical injury.” KRS §503.05(2).2

       For the reasons set forth below, we find the district court did not err in the application of the

sentencing enhancement.

                                         I. BACKGROUND

       The evidence indicates that on 15 April 2008, Harold Wagers learned that Shawn Wombles

(“Wombles”) was responsible for shooting into the dashboard of the Appellant’s vehicle. That

evening, after drinking and playing poker together, Wagers, Wombles, and a third, unidentified,

individual came to blows over the dashboard incident. During the fight Wombles struck Wagers

several times with the butt-end of a handgun, while the third individual struck Wagers using the

stock of a loaded shotgun. In the ensuing struggle, Wagers managed to wrest the loaded shotgun

from the unidentified assailant and to flee the scene with the weapon in hand.




       2
         The general self-defense statute, KRS 503.050, provides, in relevant part, as follows:
(1) The use of physical force by a defendant upon another person is justifiable when the defendant
believes that such force is necessary to protect himself [or herself] against the use or imminent use
of unlawful physical force by the other person.
(2) The use of deadly physical force by a defendant upon another person is justifiable under
subsection (1) only when the defendant believes that such force is necessary to protect himself [or
herself] against death, serious physical injury, kidnapping, sexual intercourse compelled by force or
threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS
503.055 [entering a residence or occupied vehicle].


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United States v. Wagers

        Wagers made his way to a telephone and notified his companion, Nicole Henson, that he

needed to be taken to the hospital for treatment. Henson picked up Wagers and together, with the

couple’s two young children also in the car, the foursome stopped at a convenience store to refuel

for the trip to the hospital.

        While at the convenience store, a vehicle with Wagers’ two assailants pulled up and parked

next to Appellant’s car. At the evidentiary hearing held by the district court prior to sentencing,

Wagers testified that his assailant, Wombles, said, “There’s that son-of-a-‘you-know-what,’” and

“we’re going to kill you and your whole family.” Wagers then pulled from his car the loaded

shotgun he had been struck with earlier in the evening and pointed it at his two former assailants.

Wagers testified that he told the two men he would shoot them if they pulled a weapon, and that he

was going to protect his children. Wagers also admitted that he was intoxicated, that he did not see

a weapon on either man, and that the men did not mention weapons when they threatened him.

        As this event unfolded, a Manchester City Police Officer pulled into the parking lot of the

convenience store. The officer testified at the evidentiary hearing that he witnessed Wagers’ two

assailants moving away from Appellant. The officer also explained that the shotgun held by Wagers

was pointed in such a manner as to place the convenience store clerks in the line of fire. The officer

testified that he ordered Wagers to drop the shotgun. While Wagers claimed he gave the gun up

immediately, the officer testified he ordered Wagers to drop the weapon “seven or eight times”

before he complied. The officer testified that Wagers was intoxicated and that he found no weapons

of any sort either on Wagers’ assailants or in their vehicle.



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United States v. Wagers

        After the evidentiary hearing on Harold Wagers’ objection to the application of the four-point

Sentencing Guidelines enhancement the district court determined by a preponderance of the evidence

that “there were repeated attempts to get the defendant to drop the firearm.” The district court

overruled Mr. Wagers’ objection to the enhancement and imposed a sentence of 120 months

imprisonment.

                                        II. LAW & ANALYSIS

        A.      STANDARD OF REVIEW

        This court reviews a sentencing decision for procedural and substantive reasonableness. See

Gall v. United States, 552 U.S. 38, 51 (2007). The former includes review for “procedural error in

the calculation of the guideline range[.]” United States v. Bartee, 529 F.3d 357, 358 (6th Cir. 2008).

Although we review factual determinations made during sentencing for clear error, United States v.

Webb, 616 F.3d 605, 609 (6th Cir. 2010), we review legal conclusions regarding the application of

the Sentencing Guidelines de novo, United States v. Hover, 293 F.3d 930, 933 (6th Cir. 2002). The

Sentencing Guidelines instruct a court to increase a defendant's base offense level by four points “[i]f

the defendant used or possessed any firearm or ammunition in connection with another felony

offense[.]” USSG § 2K2.1(b)(6). Thus, we review de novo the question of whether a four-point

enhancement was appropriate under USSG § 2K2.1(b)(6) given the facts in this case. See United

States v. McKenzie, 2011 WL 477738, *2 (6th Cir., Feb. 10, 2011).

        B.      ANALYSIS

        Harold Wagers argues that the district court erred in applying a four-point enhancement under

§ 2K2.1(b)(6) of the Sentencing Guidelines. That enhancement is appropriate if the district court

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United States v. Wagers

finds by a preponderance of the evidence that the defendant “used or possessed [a] firearm . . . in

connection with another felony offense[.]” USSG § 2K2.1(b)(6); United States v. Gates, 461 F.3d

703, 708 (6th Cir. 2006).

       Wagers maintains the application of the enhancement was not appropriate because he

propounded a viable defense. The Appellant contends he was justified in pointing the loaded

shotgun at his former assailants after they verbally threatened him and his family in the parking lot

of the convenience store. On appeal, Wagers urges the Court to remand the sentence for removal

of the enhancement in light of the “totality of the circumstances.”

       The evidentiary record indicates that while Wagers was initially charged in state court with

wanton endangerment, the charge was dismissed after Appellant was charged in federal court. At

his evidentiary hearing Wagers conceded that the act of pointing the loaded shotgun at his two

former assailants constituted felony wanton endangerment under Kentucky state law. See KRS

§ 508.060. In his brief on appeal Wagers admits that the dismissal of the wanton endangerment

charge by the state did not determine the sufficiency of its application in the context of his federal

sentence. Finally, Wagers acknowledges the nexus between his wielding the loaded shotgun and the

resulting wanton endangerment.

       At the evidentiary hearing, the government maintained Wagers’ self-defense claim was

unavailable under the circumstances. See Justice v. Commonwealth, 608 S.W. 2d 74, 75 (Ky. Ct.

App. 1980) (finding of self-protection precluded conviction for wanton endangerment). Under

Kentucky’s general self-defense statute, KRS § 503.050, Wagers might successfully avail himself

of a self-defense argument only if his threatened use of deadly force was “necessary to protect

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United States v. Wagers

himself against death [or] serious physical injury.” KRS § 503.050(2). Because Wombles was

neither wielding a weapon, nor proximate to the Appellant, and was, by all accounts, backing away

from the loaded shotgun held by Wagers, the government maintained the Appellant could not

reasonably believe he, or his family, were under imminent risk of death or serious physical injury.

Further, the government argued then, as it does now, that Wagers’ self-defense argument could not

reasonably be extended to cover the wanton endangerment of the two convenience store clerks in

the line of fire from the loaded shotgun. Neither store clerk presented an imminent risk of death or

serious physical injury to Wagers.

       After considering the evidence, the district judge found by a preponderance of the evidence

that Wagers could not justify his conceded acts of wanton endangerment as performed in the service

of self-protection. In making that determination, the district court relied upon Wagers’ testimony

that he was 15 to 20 feet from Wombles when he aimed the loaded shotgun, that Wombles had

uttered a verbal threat to kill the Appellant and his family, that no weapon was brandished by

Wombles, and that Wagers admitted to being intoxicated. Further, considering the credibility of the

testimony, the district court also found by a preponderance of the evidence that the officer had to

repeatedly order Wagers to drop the firearm.

       Upon review of the record, we find the district court did not err in the application of the

sentencing enhancement when considering the uncontroverted evidence, the admissions of the

Appellant, and the assertions of the officer on the scene. See Justice, 608 S.W. 2d at 74-75 (use of

force by a defendant upon another person justifiable only when the defendant reasonably believes

such force is necessary to protect against the imminent use of unlawful physical force); see also KRS

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§ 503.120(1), (2) & cmt. (Self-defense not available for wantonness crime when defendant has

unreasonable belief or recklessly creates risk of injury to innocent persons). Even conceding the

gravity of Wombles’ verbal threats toward the Appellant and his family in the convenience store

parking lot, Wagers’ self-protection defense is untenable. The evidence of Wagers’ intoxication, the

uncontroverted testimony that Wombles was at a distance and moving away from Wagers, the

absence of any weapons brandished by Wombles, and the officer’s need to repeatedly order Wagers

to put down his weapon, combine to establish the reasonable basis for the application of the four-

point enhancement for wanton endangerment by a preponderance of the evidence. United States v.

Hyler, 308 F. App’x 962, 966-67 (6th Cir. 2009) (applying Tennessee law to find, by a

preponderance, no justification for a claim of self-defense to a sentencing enhancement for reckless

endangerment under USSG § 2K2.1(b)(6)).

                                       III. CONCLUSION

       We determine, upon review of the record, that the district court properly applied the four-

point Guideline enhancement. For the reasons set forth above, we AFFIRM the district court’s

determination.




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