            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 17a0257n.06

                                   Case No. 16-6279

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                                                                              FILED
                                                                         May 04, 2017
UNITED STATES OF AMERICA,                        )                   DEBORAH S. HUNT, Clerk
                                                 )
      Plaintiff-Appellee,                        )
                                                 )     ON APPEAL FROM THE
v.                                               )     UNITED STATES DISTRICT
                                                 )     COURT FOR THE EASTERN
OMARI SWEAT,                                     )     DISTRICT OF KENTUCKY
                                                 )
      Defendant-Appellant.                       )
                                                 )
__________________________________/

      Before: GUY, CLAY, and WHITE, Circuit Judges.

      RALPH B. GUY, JR., Circuit Judge. Defendant appeals the district court’s

imposition of a multiple-felony sentencing enhancement following his guilty plea to

being a felon in possession of a firearm. We affirm.

                                            I.

      Assailants shot defendant eight times in a convenience store parking lot, then

drove away. Defendant fired back 22 times in the direction of the assailants’ vehicle, in

close proximity to two bystanders, an adult and a child. He then disposed of the firearm

in a nearby trash can, and handed a bag containing cocaine to another passerby who tried
Case No. 16-6279                                                                           2
United States v. Sweat
to assist him. Police and emergency medical personnel arrived, identified defendant as

the victim, and transported him to a hospital for his injuries.       Meanwhile, officers

searching the scene discovered defendant’s firearm in the trash can.           Officers later

learned that defendant was a felon and thus illegally possessed the firearm.

       Defendant pleaded guilty to being a felon in possession of a firearm. See 18

U.S.C. § 922(g)(1). In the agreement, the prosecution recommended a four-level increase

to defendant’s base offense level because he possessed the firearm in connection with

another felony offense – namely, tampering with evidence, first-degree wanton

endangerment, and/or distribution of cocaine. See U.S.S.G. § 2K2.1(b)(6)(B). Defendant

waived his right to appeal except as to this enhancement. The Presentence Investigation

Report recommended the enhancement based on either first-degree wanton endangerment

or evidence tampering. Defendant objected, arguing that he used the firearm in self-

defense.    The district court rejected the argument and found defendant’s actions

constituted both first-degree wanton endangerment and evidence tampering. The court

applied the four-level enhancement and sentenced defendant to 71 months of

imprisonment. He appeals, arguing that the prosecution put forth insufficient evidence of

wanton endangerment or evidence tampering.

                                            II.

       We review the district court’s factual findings for clear error, “accord[ing] due

deference to the fact-bound question of whether [defendant] possessed the firearm in

connection with another felony.” United States v. Williams, 601 F. App’x 423, 424 (6th

Cir. 2015) (quoting United States v. Taylor, 648 F.3d 417, 431-32 (6th Cir. 2011)). We
Case No. 16-6279                                                                        3
United States v. Sweat
review de novo its legal conclusions regarding the sentencing guidelines. United States v.

Henry, 819 F.3d 856, 864 (6th Cir. 2016).

                                            III.

       a. First-Degree Wanton Endangerment

       Under Kentucky Revised Statutes Annotated (K.R.S.) § 508.060

       A person is guilty of wanton endangerment in the first degree when, under
       circumstances manifesting extreme indifference to the value of human life,
       he wantonly engages in conduct which creates a substantial danger of death
       or serious physical injury to another person.

       Defendant cites Gilbert v. Commonwealth for the proposition that he cannot

satisfy the requirements of § 508.060 unless he pointed the gun at the persons purportedly

endangered – here, innocent bystanders. 637 S.W.2d 632, 634 (Ky. 1982). Gilbert is

distinguishable, however, because the defendant in that case never fired his gun. Id. at

633. Defendant also relies on Ison v. Commonwealth, 371 S.W.3d 533 (Ky. App. 2008).

Ison held that driving a powerful car with extremely worn tires, standing alone, does not

demonstrate the mens rea necessary to support a first-degree wanton endangerment

conviction. Id. at 536-37. Ison has nothing to do with firearms and is irrelevant here.

Further, the Supreme Court of Kentucky has upheld convictions for first-degree wanton

endangerment in circumstances much more similar to this case.

       In Combs v. Commonwealth, the defendant took a firearm from a grocery store

security guard when the guard and other employees attempted to detain him for

shoplifting, and fired six times. 652 S.W.2d 859, 860-61 (Ky. 1983). He fired one shot

when an employee was “standing right beside the gun,” and another shot “came within
Case No. 16-6279                                                                         4
United States v. Sweat
fifteen feet of another employee.” Id. at 860. The Court affirmed the defendant’s

conviction for first-degree wanton endangerment and the trial court’s refusal to instruct

the jury on second-degree wanton endangerment, holding that “a reasonable juror could

not doubt that his conduct created a substantial danger of death or serious physical injury

to another person.” Id. at 861. In Smith v. Commonwealth, the intoxicated defendant

fired multiple shots from atop a horse toward the porch of a nearby home, killing one of

six occupants. 410 S.W.3d 160, 166 (Ky. 2013). As relevant here, the Court affirmed

the defendant’s three first-degree wanton endangerment convictions (one for each

individual seated near the deceased), ruling that his conduct “exhibited an extreme

indifference to the value of human life and created a substantial danger of death or

serious physical injury.” Id. Finally, we upheld a § 2K2.1(b)(6)(B) enhancement for

first-degree wanton endangerment under Kentucky law where the defendant fired

multiple shots “in the immediate vicinity of other individuals in a densely populated area

while intoxicated and engaged in an argument[.]” United States v. Kelley, 585 F. App’x

310, 313 (2014) (per curiam) (internal quotation marks omitted).

       In Combs, Smith, and Kelley, it was irrelevant that the defendant did not target

those he endangered.     The text of § 508.060 supports this reasoning.       Defendant’s

proposed targeting requirement suggests a mens rea of intent, whereas § 508.060

describes a lesser standard of “extreme indifference” – akin to “aggravated

wanton[n]ess.”     Kelley, 585 F. App’x at 312 (quoting Swan v. Commonwealth,

384 S.W.3d 77, 201 (Ky. 2012), as corrected (Sept. 11, 2012), as modified on denial of

reh’g (Dec. 20, 2012)). Wanton endangerment is about circumstances as much as intent,
Case No. 16-6279                                                                         5
United States v. Sweat
see Belden v. Commonwealth, No. 2011-SC-000699, 2013 WL 3155839, at *5 (Ky. June

20, 2013), and firing 22 shots in the immediate vicinity of bystanders is a circumstance

exhibiting extreme indifference to the value of human life. Defendant’s self-defense

argument fails for much the same reason: a self-defense justification is not available to a

defendant who “wantonly or recklessly . . . creates a risk of injury to innocent persons.

K.R.S. § 503.120(2). The district court thus properly enhanced defendant’s sentence

based on first-degree wanton endangerment.

       b. Evidence Tampering

       K.R.S. § 524.100(1) provides:

       A person is guilty of tampering with physical evidence when, believing that
       an official proceeding is pending or may be instituted, he: (a) Destroys,
       mutilates, conceals, removes or alters physical evidence which he believes
       is about to be produced or used in the official proceeding with intent to
       impair its verity or availability in the official proceeding[.]

The official commentary to § 524.100 makes it clear that “a conviction of this offense

may be obtained even if the tampering occurred prior to the initiation of an official

proceeding” so long as the defendant “engages in the proscribed conduct with the

specified intent to impair the truth or availability of evidence[.]”           Burdell v.

Commonwealth, 990 S.W.2d 628, 633 (Ky. 1999). Moreover, a jury may infer from

circumstantial evidence a defendant’s specific intent to conceal evidence he believed

could be used in a proceeding against him. See Commonwealth v. Wolford, 4 S.W.3d

534, 539 (Ky. 1999).
Case No. 16-6279                                                                       6
United States v. Sweat
       Defendant is correct that, under McAtee v. Commonwealth, a defendant does not

tamper with evidence simply by leaving the scene of a crime with the weapon used to

commit it. 413 S.W.3d 608, 616 (Ky. 2013). But McAtee is inapposite, as defendant did

not leave the scene of the crime with his firearm. Furthermore, the Court in McAtee

recognized that “walking away from the scene with the gun is not enough to support a

tampering charge without evidence of some additional act demonstrating an intent to

conceal.” Id. (emphasis supplied). Defendant’s attempt to dispose of the gun in a trash

can is a separate act showing his intent to conceal unlawful possession of the firearm –

the very offense to which he pleaded guilty.

       Kentucky courts have upheld convictions for evidence tampering where a

defendant disposed of a BB gun after a shooting, see Coffman v. Commonwealth, No.

2004-CA-002140-MR, 2005 WL 3334356, at *3 (Ky. Ct. App. Dec. 9, 2005), and where

a defendant, charged as an accessory, disposed of a principal’s spent casings, see Nourse

v. Commonwealth, No. 2005-CA-002080-MR, 2006 WL 2919054, at *2 (Ky. Ct. App.

Oct. 13, 2006). Evidence tampering therefore provided an alternative basis for the

district court’s § 2K2.1(b)(6)(B) sentencing enhancement.

       AFFIRMED.
