                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 04a0011n.06
                           Filed: October 6, 2004



                                       No. 03-6120

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                     )
                                              )
       Plaintiff-Appellee,                    )
                                              )
v.                                            )   ON APPEAL FROM THE UNITED
                                              )   STATES DISTRICT COURT FOR THE
MARCHELLO JIMMY LOVERSON,                     )   WESTERN DISTRICT OF TENNESSEE
                                              )
       Defendant-Appellant.                   )




       Before: KENNEDY, DAUGHTREY, and COOK, Circuit Judges.


       PER CURIAM. The defendant, Marchello Loverson, appeals the sentence that he

received as the result of the guilty plea he entered to car-jacking and use of a firearm

during a crime of violence. He alleges that the district court erred in applying a four-level

enhancement under §2B3.1(b)(4)(A), which requires such an enhancement when the

proof shows that a defendant “abducted [someone] to facilitate the commission of the

offense or to facilitate escape.” He argued at the sentencing hearing that he did not know

that there were two children in the back seat of the car he commandeered until he had

driven away from the convenience market where he had pulled the driver out of the car and

shot the children’s mother when she tried to rescue the children. However, at the earlier
03-6120


guilty plea proceeding, the defendant admitted the existence of the following facts, which

were recited into the record by the government attorney in order to establish a basis for the

defendant’s plea:


              In this case, we would have shown, Your Honor, that on March 2nd,
       2001, Mr. Loverson carjacked a car from Angel Henry and David Payne at
       the Circle K Store on Shelby Drive here in Memphis. The proof would have
       shown that David Payne arrived at the Circle K Store driving his Buick
       LeSabre automobile. Angel Henry, his girlfriend, was in the front seat. Ms.
       Henry’s two children, Dante, and DeAngelo, ages three and one, were in the
       back seat. Mr. Payne pulled up and parked his vehicle by the gas pump.
       Ms. Henry got out of the passenger seat and went inside the Circle K to use
       the ATM machine. Mr. Payne briefly got out of the car, washed the windows
       off, and got back in the driver’s seat, and was sitting there waiting for Ms.
       Henry. Two children were in the back seat.
               While Mr. Payne was sitting there waiting, the defendant, Mr.
       Loverson, came up to the door, pulled the door open, and pulled Mr. Payne
       out. Mr. Payne then began struggling with Mr. Loverson. After they
       struggled for a bit, Mr. Loverson produced a pistol and fired a shot at fairly
       close range at James Payne, missing James Payne. Mr. Payne then turned
       to run. As he was running, he heard another shot, which he felt was aimed
       at him. At this point, Angel Henry was in the store, looked out. She saw Mr.
       Loverson about to get in the Buick LeSabre and drive off. Saw her kids were
       there, she started to run toward the Buick LeSabre, and she was yelling, “My
       kid,” “My kids.” As she was running toward the Buick LeSabre, Mr. Loverson
       pointed the pistol at her, fired a shot at her, hitting her in the leg and
       wounding her. Ms. Henry went down on the parking lot of the Circle K
       wounded in the leg.
              Mr. Loverson then proceeded to drive off in the Buick LeSabre, and
       he drove out onto Shelby Drive. Mr. Payne, who had run around the back
       of the Circle K, at that time saw a woman in another car following Mr.
       Loverson as the get-away driver.
              The proof would have shown that the children were dropped off
       unharmed about several blocks away at a Kentucky Fried chicken store
       about a mile away. They were recovered unharmed on the parking lot of a
       Circuit City store.



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03-6120


       Under these circumstances, we think there can be no doubt that the defendant knew

that the children were in the car and nevertheless left the scene intentionally, without taking

time to remove them, in order to facilitate both the commission of the offense and his

escape. We therefore find no error in the district court’s application of the sentencing

guideline at issue in this appeal.


       AFFIRMED.




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