                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 09a0515n.06

                                               No. 08-5566                                      FILED
                                                                                            Jul 27, 2009
                             UNITED STATES COURT OF APPEALS                           LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                         )
                                                  )
        Plaintiff-Appellee,                       )       ON APPEAL FROM THE UNITED
                                                  )       STATES DISTRICT COURT FOR
v.                                                )       THE MIDDLE DISTRICT OF
                                                  )       TENNESSEE
TREKO LAMONT WOODARD,                             )
                                                  )       OPINION
        Defendant-Appellant.                      )


Before: MCKEAGUE and WHITE, Circuit Judges, and MARBLEY, District Judge.*

        MARBLEY, District Judge. Defendant-Appellant Trecko Woodard (“Woodard”) appeals

his sentence following his plea of guilty to being a felon in possession of a firearm in violation of

18 U.S.C. §§ 922(g)(1) and 924. At sentencing, the district court applied a four-point enhancement

under Section 2K2.1(b)(6) of the United States Sentencing Guidelines (“U.S.S.G.”) for possessing

the gun in connection with another felony offense, namely the aggravated assault of his girlfriend.

Woodard contends that the district court’s application of the enhancement was improper and requests

that this Court vacate his sentence and remand for resentencing. For the following reasons, we

AFFIRM the judgment of the district court.




*
 The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by
designation.
No. 08-5566
United States v. Woodard

                                       I. BACKGROUND

                                             A. Facts

       On December 29, 2006, Woodard got into an argument with Bobbie Waters (“Waters”), a

girlfriend with whom he was living in an apartment. (Record on Appeal (“ROA”) Tr. Vol. 4, 36-38.)

During the course of the argument, Woodard pulled out a gun and waved it at Waters. (Id. at 11, 38.)

He then hit her on the arm with the back of the hand in which he held the gun. (Id.) In response,

Waters left the apartment, contacted Vicki Crick (“Crick”) at the rental office, and asked for help

getting Woodard out of her apartment. (Id. at 8-9, 43.) Crick called the police when she learned that

Woodard had hit Waters. (Id. at 9.)

       Metropolitan Nashville Police Department Officer Leon Taylor (“Officer Taylor”) responded

to the call. (Id. at 5-6.) When he arrived at the scene, Waters told him that she had argued with

Woodard, that he pulled a gun and waved it at her, that he told her “he had been wanting to shoot

somebody anyway,” and that he hit her on the upper arm. (Id. at 11.) Officer Taylor saw a minor

bruise on Waters’ arm, which was consistent with her having been hit with an object. (Id. at 12.)

       Waters also told Officer Taylor that she wanted to press charges against Woodard. (Id. at

17.) Officer Taylor went up to the apartment and arrested Woodard. (Id. at 12.) In the apartment,

he found a cocked and loaded .38 caliber revolver. (Id. at 12-14.) Woodard was charged with

aggravated assault as a result of this incident. (Id. at 17.) The aggravated assault charge was

ultimately dropped, however, because Waters failed to appear to testify against Woodard. (Id. at 17.)

       The December 2006 incident was not the first violent episode between Woodard and Waters.

Roughly six months earlier, when Waters was pregnant, Woodard kicked down the door to her

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United States v. Woodard

apartment, grabbed her by the hair, and forced her into a car. (Id. at 44-45.) Waters called the police

on that occasion. (Id. at 44.)

                                      B. Procedural History

       On August 8, 2007, Woodard was indicted for unlawfully possessing a firearm as a felon

based on the gun found in Waters’ apartment on December 29, 2006. (ROA Vol. 1, 13.) Woodard

pled guilty to that charge. (Id. at 15-19.) At sentencing, the government sought to apply two

sentencing enhancements. The first was a two-level enhancement for obstructing justice based on

the Government’s claims that Woodard threatened Waters during calls from jail to prevent her from

testifying against him on his assault charge. (ROA Tr. Vol. 4, 8, 69.) The district court refused to

apply that enhancement. (Id. at 98-99.)

       The second was a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for possessing the

gun in connection with the alleged aggravated assault of Waters. At the sentencing hearing, Waters

testified that Woodard waved the gun at her and hit her with the hand in which he held the gun.

(ROA Tr. Vol. 4, 38.) Waters stated, however, that she was not afraid that Woodard was going to

cause her bodily harm, to shoot her, or to hit her with the gun. (Id.) Specifically she testified as

follows:

       Q. At the time that you and Trecko were fighting, did you at any time fear that he
       was going to cause you bodily harm?

       A. No. I was just shocked, surprised like, Oh, my God.

       Q. At the time that Trecko struck you, did you have any
       fear that he was going to use that gun to harm you?

       A. Like kill me or something?

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United States v. Woodard


       Q. Yes, ma'am.

       A. No.

       Q. Did you believe at any time during this fight that he
       was going to use the gun itself to strike you?

       A. No.

(Id.) She explained that she contacted the rental office because she couldn’t get Woodard out of her

apartment by herself. (Id. at 42-43.) She also explained that she didn’t testify against Woodard on

the aggravated assault charge because “I didn’t want nothing bad to happen to him. He was just—we

was just upset that day.” (Id. at 40.)

       At the close of the sentencing hearing, the district court gave Woodard a four-point

sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)1 because Woodard used or possessed the gun

in connection with his aggravated assault of Waters. (Id. at 99.) In response to Woodard’s objection

to the enhancement, the he district court explained that assault is defined under the Tennessee code

as “reasonable fear of eminent bodily injury.” (Id.) Despite Water’s testimony at the hearing, the

court determined that Waters feared Woodard. (Id.) The court explained that:

       I think there was a reasonable fear of eminent bodily injury, and that’s best evidenced
       by the fact that Ms. Waters contacted the rental office. And it is evidence that she
       feared Mr. Woodard, and it is also after actually being battered as part of the assault
       and that he hit her.

(Id. at 99-100.) The district court “also credit[ed] the testimony of Officer Taylor regarding



1
  Prior to the 2006 amendments to the Sentencing Guidelines, Section 2K2.1(b)(6) was
numbered as Section 2K2.1(b)(5).

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No. 08-5566
United States v. Woodard

statements that were made to him by Ms. Waters that Mr. Woodard waved the gun at her in

connection with striking her and that waver is a display and use of the firearm.” (Id.)

       The enhancement bumped up Woodard’s sentencing guidelines range from 77-96 months to

110-120 months.2 (Id. at 105.) The court sentenced Woodard to 110 months imprisonment, the

lowest possible sentence within the advisory guideline range. (Id.) Woodard timely appealed. On

appeal he contends that the district court improperly enhanced his sentence based on the aggravated

assault because Waters testified that she did not fear imminent bodily injury.

                                       II. JURISDICTION

       The district court had subject-matter jurisdiction under 18 U.S.C. § 3231 because district

courts have original and exclusive jurisdiction over federal crimes. This Court has jurisdiction over

Woodard’s appeal under 28 U.S.C. § 1291 because the district court entered final judgment on May

1, 2008.

                                 III. STANDARD OF REVIEW

       We review a sentencing court’s factual findings for clear error and give “due deference” to

the district court’s determination that the U.S.S.G. § 2K2.1(b)(6) enhancement applies. United

States v. Burke, 345 F.3d 416, 427 (6th Cir. 2003); United States v. Ennenga, 263 F.3d 499, 502 (6th

Cir. 2001). Clear error will only be found where, after reviewing all the evidence, we are left with
2
  Without the enhancement Woodard’s offense level would have been 21 (a base level of 24
minus 3 points for his acceptance of responsibility) and his criminal history level was 18,
generating a 77-96 month guideline range. With the enhancement his offense level was 25 (24
base level plus 4 points for the enhancement, minus 3 points for his acceptance of responsibility)
which generated a guidelines range of 110-137 months given his criminal history. Because there
is a ten year statutory maximum, however, his guidelines range was actually 110-120 months as
properly calculated by the district court.

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No. 08-5566
United States v. Woodard

the “definite and firm conviction that a mistake has been made.” Id. If a matter presents strictly a

question of law regarding the application of the Sentencing Guidelines, we conduct a de novo

review. United States v. Canestraro, 282 F.3d 427, 431 (6th Cir. 2002). Therefore, to the extent that

Woodard challenges the district court’s factual conclusions underlying the aggravated assault, the

standard of review is clear error. To the extent that Woodard challenges the district court’s legal

conclusions regarding the proper interpretation of the elements of the Tennessee assault statute, the

standard of review is de novo.

                                     IV. LAW & ANALYSIS

        A sentencing court may apply a four-level sentencing enhancement “[i]f the defendant used

or possessed any firearm or ammunition in connection with another felony offense.” U.S.S.G. §

2K2.1(b)(6). To apply the enhancement, the sentencing court must find by a preponderance of the

evidence that: (1) the defendant committed “another felony offense” and (2) used or possessed a

firearm in connection with that offense. United States v. Richardson, 510 F.3d 622, 626 (6th Cir.

2007); see also United States v. Gates, 461 F.3d 703, 707 (6th Cir. 2006) (preponderance standard).

A “felony offense” is defined by the guidelines as “any offense (federal state or local) punishable by

imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or

conviction obtained.” U.S.S.G. § 2K2.1, cmt. n.4.

        Under Section 39-13-101(a) of the Tennessee Code, a person can commit assault in three

ways:

        (a) A person commits assault who:

               (1) Intentionally, knowingly or recklessly causes bodily injury to another;

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United States v. Woodard


               (2) Intentionally or knowingly causes another to reasonably fear imminent
               bodily injury; or

               (3) Intentionally or knowingly causes physical contact with another and a
               reasonable person would regard the contact as extremely offensive or
               provocative.

An assault is “aggravated” and punishable by over one year in prison if the perpetrator

“[i]ntentionally or knowingly commits an assault” and “uses or displays a deadly weapon.” Tenn.

Code. Ann. §§ 39-13-102 (aggravated assault defined), 40-35-112 (penalties). In this case, the

district court found that the sentencing enhancement applied because Woodard possessed or used

the gun in connection with the aggravated assault of Waters. (ROA Tr. Vol. 4, 99.) In reaching that

conclusion, the district court expressly relied on the definition of assault in § 39-13-101(a)(2), i.e.,

causing reasonable fear of imminent bodily injury. (Id.)

                     A. Assault Under Tenn. Code Ann. § 39-13-101(a)(2)

       Woodard argues that the district court erred in applying a four-point enhancement to his

sentence based on the alleged aggravated battery of Waters because the Government failed to show

that Waters was subjectively afraid as required to sustain an assault charge under Tenn. Code Ann.

§ 39-13-101(a)(2). He bases this challenge on the fact that Waters testified at his sentencing hearing

that she was not afraid.

       Under the plain language of Tenn. Code Ann. § 39-13-101(a)(2), the “fear” requirement is

both subjective and objective, meaning that the defendant must actually “cause” the victim to fear

and the victim’s fear must be objectively reasonable. Tennessee case law makes clear, however, that

the victim’s fear can be established purely by circumstantial evidence, even if the victim denies being

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No. 08-5566
United States v. Woodard

fearful. State v. Stallings, No. E2005-00239-CCA-R3-CD, 2006 WL 2061736, at *21 (Tenn. Crim.

App. July 26, 2006) (collecting cases in which the victim’s fear was inferred from the circumstances

of the assault); State v. Schrantz, No. W2002-01507-CCA-R3-D, 2003 WL 22888910, at *3-4 (Tenn.

Crim. App. Dec. 2, 2003) (fear of imminent bodily injury could be inferred from circumstances even

though victim “vehemently denied” being afraid); see also Duchac v. State, 505 S.W.2d 237, 241

(Tenn. 1973) (criminal offense may be proven exclusively through circumstantial evidence). In other

words, “[t]he element of ‘fear’ is satisfied if the circumstances of the incident, within reason and

common experience, are of such a nature as to cause a person to reasonably fear imminent bodily

injury.” State v. Whitfield, No. 02C01-9706-CR-00226, 1998 WL 227776, at *2 (Tenn. Crim. App.

May 8, 1998) (finding fear of imminent bodily harm despite victim’s testimony that he was not

afraid).

           In Schrantz, the defendant argued that his assault conviction under § 39-13-101(a)(2) was

improper because his girlfriend, the victim, testified that she was not afraid of him during the alleged

assault and characterized him as “a big teddy bear” who would not hurt her. 2003 WL 22888910,

at *1. The assault stemmed from an argument between the defendant and his girlfriend at a gas

station that culminated in the defendant crawling into his girlfriend’s locked car through the

hatchback and beating her. Id. The Schrantz court affirmed the defendant’s conviction explaining

that despite the victim’s “vehement denial” the circumstances of the case supported the inference

that the she reasonably feared imminent harm. Id. at *3-4. As evidence of the victim’s fear, the

court pointed to the fact that that the she came into a store to ask the clerk to call 911, that she locked



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United States v. Woodard

the door to her car to try to keep the defendant out, that witnesses described her as appearing scared,

and that witnesses observed the defendant hitting the victim. Id. at *3.

        Similarly in this case, the district court’s conclusion that Waters was afraid, despite her

testimony to the contrary, was supported by ample evidence. Waters admitted that Woodard hit her

while holding a gun. As the district court noted, her fear was further evidenced by her behavior

following the incident. She left the apartment and contacted the rental office to try to get Woodard

removed from her house. The court also credited Officer Taylor’s testimony about what Waters said

immediately following the incident. According to Officer Taylor, Waters told him that Woodard

waved a gun at her, hit her and told her that “he had been wanting to shoot somebody anyway.”

(ROA Tr. Vol. 4, 11.) Waters also showed Officer Taylor a minor bruise on her arm, which was

consistent with her having been hit with an object and told him that she wanted to press charges.

Furthermore, the evidence established that there was a history of domestic violence between

Woodard and Waters, and that she had previously called 911 when he kicked down her door and

dragged her into a car. Given all of the evidence presented at the sentencing hearing, the district

court’s finding that Waters reasonably feared imminent bodily injury when Woodard brandished a

loaded gun at her and struck her was not clearly erroneous. See Whitfield, 1998 WL 227776, at *2

(“Apprehension of imminent bodily harm may be inferred from the conduct of the victim following

the assault.”)

        That conclusion is not altered by State v. McKnight, 900 S.W.2d 36, 49 (Tenn. Crim. App.

Nov. 21, 1994), on which Woodard relies. The McKnight court held that a defendant could not be

convicted of assault for fondling and performing oral sex on a thirteen-year-old because the child

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No. 08-5566
United States v. Woodard

admitted that he consented to the advances and that they made him “feel good.” Id. at 49. Although

the case generally supports the proposition that subjective fear is an element of assault, it does not

speak to the specific question before this Court, i.e., whether fear can be inferred from circumstantial

evidence despite a victim’s testimony that she was unafraid. Furthermore, unlike in this case, in

McKnight there was no circumstantial evidence suggesting that the boy was actually afraid despite

his testimony to the contrary. As neither party suggests that Waters consented to being hit by

Woodard, McKnight does not alter the result in this case.

       Woodard next argues, relying on the Ninth Circuit’s ruling in United States v. Brown, that

a remand for resentencing is proper because the district court’s ruling might have been based on the

erroneous notion that it need not find actual fear as an element of an assault claim under Tennessee

law. 259 F.App’x 944, 945 (9th Cir. 2007) (holding that a remand for resentencing was proper were

the district court made no finding with respect to whether the assault victim feared harm and the

Washington assault statute required proof that the victim felt fear). He contends that “[w]hile the

District Court may have suggested that Waters suffered the requisite actual fear, it did not expressly

find as such.” (Appellant’s Br. 18.)

       That argument, however, is belied by the transcript of the sentencing hearing. It is true that

the Government erroneously argued at the hearing that subjective fear was not a statutory

requirement of a § 39-13-101(a)(2) assault. (ROA Tr. Vol. 4, 95). Nevertheless, the record shows

that the district court expressly found that Waters experienced fear stating, “I think there was a

reasonable fear of eminent bodily injury, and that’s best evidenced by the fact that Ms. Waters

contacted the rental office. And it is evidence that she feared Mr. Woodard . . . .” (Id. at 99

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No. 08-5566
United States v. Woodard

(emphasis added).) Because it is clear from the record before us that the district court found that

Waters feared harm, Brown is inapposite to the facts of this case.

        Finally, Woodard argues that even if the district court found that Waters was afraid, its

application of the sentencing enhancement was erroneous because it failed adequately to explain why

it found Waters’ sentencing hearing testimony incredible. (Appellant’s Reply Br. 6.) In support of

that position, Woodard relies on three out-of-circuit cases suggesting that a sentencing court’s

calculation of the drug amount in possession convictions may be clearly erroneous where the drug

amount was testified to by an unreliable witness, the court fails specifically to explain its credibility

determinations, and the record does not otherwise corroborate the amount. United States v. Acosta,

85 F.3d 275 (7th Cir. 1996); United States v. Brothers, 75 F.3d 845, 852 (3d Cir. 1996); United

States v. Lee, 68 F.3d 1267 (11th Cir. 1995). These cases, however, were motivated by policy

concerns specific to sentencing determinations based on drug quantities, which are inapplicable to

Woodard’s case. Namely, that courts “should exercise particular scrutiny of factual findings relating

to amounts of drugs involved in illegal operations, since ‘the quantity of drugs attributed to the

defendant usually will be the single most important determinant of his or her sentence.’” Brothers,

75 F.3d at 849 (quoting United States v. Collado, 975 F.2d 985, 995 (3d Cir. 1992)). Moreover,

unlike the drug quantity amounts in those cases, which could not be independently corroborated, the

sentencing judge in this case could, and did, look to Waters’ behavior at the time of the incident and

the violent history of Waters and Woodards’s relationship as verification of his factual finding. We

are unaware of any cases in this circuit which adopt the reasoning of Acosta, Brothers, and Lee, or



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United States v. Woodard

any cases extending that reasoning to cases not involving drug possession convictions, and we find

no reason to do so in this case.

       The sentencing court’s factual finding that Waters was afraid rests in part on credibility

determinations that are uniquely within the province of the district court and which we will not

disturb unless they are “clearly contrary to the facts.” United States v. Mayle, 334 F.3d 552, 559 (6th

Cir. 2003). Woodard asserts that Waters’ post-incident conduct does not clearly indicate fear and

speculates that it could have been motivated by the desire of an “upset” Waters to retaliate against

Woodard.3 (Appellant’s Br. 26.) He claims that the conclusion that Waters was afraid is contrary

to the facts because Woodard remained in the apartment playing video games after the assault,

supposedly indicating that he did not frightened Waters, and because Waters spoke with Woodard

for hours while he was on pretrial detention. (Id.)

       Despite Woodard’s speculation, the district court’s finding was not contrary to the evidence,

which supported a conclusion that Waters was afraid at the time of the incident, even if she later

made peace with Woodard. Waters admitted that Woodard brandished a gun at her during an

argument and that he struck her with the hand holding the gun. She also admitted that in response

she fled the apartment to seek help from the rental office. She testified that she wanted to get

Woodard out of the apartment but was unable to do so herself. The evidence shows that the

domestic disturbance was sufficiently serious to warrant a 911 call. According to Officer Taylor,


3
  Woodard had previously been banned from the apartment complex as a trespasser and was not
supposed to be on the premises. (ROA Tr. Vol. 4, 9.) Woodard cites this fact as evidence that
Waters contacted the rental office in order to “impulsively punish Woodard . . . with a retaliatory
eviction.” (Appellant’s Reply Br. 8.)

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United States v. Woodard

Waters told him that Woodard said he “wanted to shoot someone anyway.” She even showed him

a bruise on her arm caused by the blow. Officer Taylor also testified, and Waters did not deny, that

she wanted to press charges against Woodard at that time. Furthermore, when asked why she failed

to appear to testify against him on the aggravated assault charge, she did not deny that the assault

occurred but instead stated that she “didn’t want nothing bad to happen to him.” (ROA Tr. Vol. 4,

45.) In short, there is ample record evidence from which the district court could conclude that

Waters was afraid at the time of the assault, even though she later denied being afraid.

       Viewing the record as a whole, we are not left with the definite and firm conviction that a

mistake has been made and see no reason to disturb the district court’s credibility determination.

The district court’s conclusion that Waters was afraid is based on sufficiently reliable record

evidence—the testimony of Officer Taylor and Waters’ behavior at the time of the incident. See

United States v. Hadley, 431 F.3d 484, 510-14 (6th Cir. 2005) (sentencing court did not err by

relying on domestic abuse victim’s post-incident statement that defendant held a gun to her head

when determining that defendant used or possessed a gun in connection with a crime of violence

despite victim’s recantation at sentencing). While Woodard may not agree with the district court’s

credibility determination or the inferences the district court drew from Waters’ conduct, those factual

findings were neither contrary to the facts nor clearly erroneous. The sentencing judge was not

bound to explain in greater detail his decision to credit the Waters’ behavior and the corroborating

testimony of Officer Taylor over Waters’ sentencing hearing testimony.




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United States v. Woodard

       The district court did not clearly err in finding that Waters was afraid or in concluding that

the gun was used in connection with an aggravated assault. Therefore, the four-level enhancement

was properly applied.

                     B. Assault Under Tenn. Code Ann. § 39-13-101(a)(3)

       As an alternative, the Government argues that the U.S.S.G. § 2K2.1(b)(6) enhancement can

be upheld on the grounds that Woodard’s conduct constituted an assault under Tenn. Code Ann. §

39-13-101(a)(3) because being hit by someone who is holding a gun is physical contact that a

reasonable person would regard as extremely offensive or provocative. (Appellee’s Br. 13.) The

Government correctly points out that § 39-13-101(a)(3) does not require proof of the victim’s

subjective fear as an element of the offense. Nevertheless, the Government did not argue this theory

to the district court when requesting the enhancement. Instead, the Government argued and the

district court based its application of the enhancement on the definition of assault contained in § 39-

13-101(a)(2), which includes the “cause fear” requirement. As we have already determined that the

application of the sentencing enhancement was proper on the grounds raised before the district court,

and the Government’s new assault theory was not fairly presented in the record, we decline to

consider this alternative argument.

                                        V. CONCLUSION

       For the foregoing reasons, we AFFIRM Woodard’s sentence.




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