                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5083


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

ROBERT HAMPTON TAYLOR,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:07-cr-00324-D-1)


Submitted:    July 9, 2009                  Decided:   July 24, 2009


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Terry F. Rose, Smithfield, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Robert Hampton Taylor pled guilty pursuant to a plea

agreement to one count of possessing a firearm in relation to a

crime of violence, in violation of 18 U.S.C. § 924(c) (2006),

and one count of being a felon in possession of a firearm, in

violation    18   U.S.C.     §§ 922(g)(1)           (2006)   &    924   (2006).     In

calculating       Taylor’s       advisory       guidelines         range     on     the

felon-in-possession conviction, the district court applied the

U.S.    Sentencing      Guidelines        Manual      (“USSG”)     § 2K2.1(c)(1)(A)

cross    reference,      after         determining      that      Taylor    committed

attempted     murder    when      he     shot   a     law    enforcement     officer.

Pursuant to USSG § 2A2.1(a)(1), Taylor had a base offense level

of 33, which was increased four levels as the officer sustained

permanent or life-threatening injuries.                     Taylor’s offense level

was then increased an additional six levels as his victim was a

law    enforcement     officer.         After   a    three    level     reduction   for

acceptance of responsibility, Taylor had an advisory guidelines

range of 360 months to life imprisonment.                        The district court

sentenced Taylor to life imprisonment on the felon-in-possession

conviction and imposed a consecutive 120-month sentence for the

possession of a firearm during and in relation to a crime of

violence conviction.




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            On appeal, Taylor’s counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967). ∗                                 Taylor first

suggests    that      the    application             of    the   § 2K2.1(c)(1)(A)           cross

reference violated his right to due process.                                 We review the

legal interpretation of the Sentencing Guidelines de novo and

factual    findings     are           reviewed       for   clear    error.           See   United

States v. Turner, 59 F.3d 481, 483-84 (4th Cir. 1995).

            According            to    Taylor,       the    application         of    the     USSG

§ 2K2.1(c)(1)(A) cross reference in his case has resulted in a

sentencing enhancement that is the “tail which wags the dog of

the substantive offense.”                    McMillan v. Pennsylvania, 477 U.S.

79,   88   (1986).          In    support      of     his    argument,     Taylor          invokes

United States v. Lombard, 72 F.3d 170 (1st Cir. 1995).                                  Lombard,

though, fails to support Taylor’s argument.                              See United States

v.    Fenner,   147    F.3d           360,   366     (4th    Cir.    1998).           Here,    the

district     court      determined,            based        on     the    law        enforcement

officer’s testimony, that Taylor committed attempted murder in


       ∗
       On February 18, 2009, the clerk’s office mailed Taylor a
notification that, if he wished to file a pro se supplemental
brief, his brief was due on March 20, 2009. On March 4, 2009,
the notification was returned to the clerk’s office as Taylor
was no longer at the Cumberland County Detention Center.
Taylor’s counsel filed a letter with this court on April 29,
2009, indicating that, on that date, she mailed Taylor
notification of his right to file a pro se supplemental brief.
Taylor has not submitted any pro se supplemental materials.




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shooting the officer.                  Following United States v. Booker, 543

U.S. 220 (2005), a sentencing court continues to make factual

findings concerning sentencing factors by a preponderance of the

evidence.        United States v. Morris, 429 F.3d 65, 72 (4th Cir.

2005).      Long-standing authority has permitted a sentencing court

to   consider     any       evidence       at    sentencing          that      “has    sufficient

indicia of reliability,” see USSG § 6A1.3(a), including “conduct

underlying [an] acquitted charge, so long as that conduct has

been     proved       by    a    preponderance          of     the    evidence.”             United

States v. Watts, 519 U.S. 148, 156-57 (1997)(per curiam); United

States      v.   Montgomery,           262      F.3d    233,        249    (4th      Cir.    2001).

Accordingly,          the       district     court’s          application         of   the     USSG

§ 2K2.1(c)(1)(B) cross reference did not violate Taylor’s right

to due process.

              Taylor            next    suggests             that     the       evidence        was

insufficient to support the four-level enhancement he received

pursuant         to        USSG        § 2A2.1(b)(1)(A)               for       permanent        or

life-threatening injury.                A permanent or life-threatening injury

is defined as an “injury involving a substantial risk of death;

loss   or    substantial           impairment          of    the    function      of    a    bodily

member, organ, or mental faculty that is likely to be permanent;

or an obvious disfigurement that is likely to be permanent.”

USSG § 1B1.1 comment. (n.1(J)).                             Permanent scarring has been

held     sufficient         to     support        application             of   the     four-level

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enhancement under § 2A2.1(b)(1)(A).            See e.g., United States v.

Miner, 345 F.3d 1004, 1006 (8th Cir. 2003).                    We have reviewed

the record and conclude that the district court did not err in

enhancing      Taylor’s     base    offense    level       pursuant        to   USSG

§ 2A2.1(b)(1)(A).

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We   therefore   affirm     Taylor’s   conviction        and    sentence.       This

court requires that counsel inform Taylor, in writing, of the

right to petition the Supreme Court of the United States for

further review.        If Taylor requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

representation.     Counsel’s motion must state that a copy thereof

was served on Taylor.

            We dispense with oral argument because the facts and

legal    contentions      are   adequately    presented        in   the    materials

before   the   court    and     argument   would   not    aid       the   decisional

process.

                                                                            AFFIRMED




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