                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4551


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MONTEZ GADDY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., District Judge. (3:13-cr-00325-RJC-DCK-1)


Submitted:   May 31, 2016                 Decided:   July 13, 2016


Before AGEE, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jennifer Haynes Rose, LAW OFFICE OF JENNIFER HAYNES ROSE, Cary,
North Carolina, for Appellant.    Jill Westmoreland Rose, United
States Attorney, Anthony J. Enright, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       In an effort to elude police during a traffic stop, Montez

Gaddy, who was driving a Mustang, struck a stationary vehicle

with Deputy United States Marshal Joe Graham inside.                                   A high

speed car chase ensued and Gaddy was ultimately apprehended.

       Following a trial, a jury found Gaddy guilty of assaulting,

resisting,       opposing,        impeding,         intimidating,         and     interfering

with a Deputy United States Marshal in the performance of his

official duties, using a dangerous weapon, to wit: a vehicle, in

violation of 18 U.S.C. § 111(a)(1), (b) (2012).                                 The district

court     sentenced        him     to    120        months’      imprisonment.           Gaddy

appealed.

       On appeal, Gaddy argues that the district court erroneously

calculated       his     Guidelines        range.           We     review     any    criminal

sentence,      “whether          inside,       just       outside,       or     significantly

outside    the    Guidelines        range,”          for   reasonableness,           “under    a

deferential      abuse-of-discretion                standard.”           United     States    v.

King, 673 F.3d 274, 283 (4th Cir. 2012); see Gall v. United

States, 552 U.S. 38, 41, 51 (2007).

       Gaddy     first     argues       that        the    district       court     erred     in

assigning      him     a   base     offense          level       under    U.S.      Sentencing

Guidelines        Manual         § 2A2.2        (2014),          governing        “Aggravated

Assault,” rather than assigning him a base offense level under

USSG    § 2A2.4,       governing        “Obstructing          or    Impeding        Officers.”

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The statutory index to the Guidelines lists both the aggravated

assault    Guideline            and     obstruction           Guideline      as    potentially

applicable      to       18    U.S.C.       § 111        violations.       See    USSG    App.    A

(statutory index).              In turn, the obstruction Guideline contains

a cross-reference to the aggravated assault Guideline if the

defendant’s conduct in obstructing the officer constituted an

aggravated assault.             USSG § 2A2.4(c)(1).

     Aggravated assault is defined as “a felonious assault that

involved    (A)      a    dangerous         weapon        with    intent    to    cause    bodily

injury    (i.e.,     not       merely       to   frighten)         with    that    weapon;    (B)

serious     bodily            injury;        (C)         strangling,       suffocating,          or

attempting to strangle or suffocate; or (D) an intent to commit

another felony.” *            USSG § 2A2.2 cmt. n.1.                 Thus, § 2A2.2 applies

to defendants who commit a felonious assault involving any one

of the four enumerated scenarios.                          See United States v. Rue, 988

F.2d 94, 96 (10th Cir. 1993) (holding that “[t]he plain language

of this definition of [aggravated assault] requires § 2A2.2 be

applied    if   any       of    the     .    .   .       described   situations       exists”).

Here,    the    district         court        found        that   the     felonious       assault

involved a dangerous weapon with intent to cause bodily injury.


     * A dangerous weapon “includes any instrument that is                                   not
ordinarily used as a weapon (e.g., a car, a chair, or an                                     ice
pick) if such an instrument is involved in the offense with                                  the
intent to commit bodily injury.”    USSG § 2A2.2 cmt. n.1;                                   see
USSG § 1B1.1 cmt. n.1(A), (D).


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     “Sentencing judges may find facts relevant to determining a

Guidelines range by a preponderance of the evidence,” United

States    v.    Cox,    744    F.3d    305,        308       (4th    Cir.       2014)    (internal

quotation marks omitted), that is, the court must find these

facts “more likely than not” to be true, see United States v.

Kiulin, 360 F.3d 456, 461 (4th Cir. 2004).                               The jury found that

Gaddy    used    a   dangerous        weapon       —     a    vehicle       —    to     commit    the

offense, and Gaddy concedes that the Mustang could be considered

a dangerous weapon. However, he takes issue with the district

court’s finding that he had intent to cause bodily injury to

Agent Graham.

     At trial, Graham and other officers testified that Gaddy

struck    Graham’s      vehicle        with    the           Mustang      and      that      Gaddy’s

actions    were      deliberate.        Despite          Gaddy’s         claim        that   he   was

merely    attempting      to    flee     the        scene,          we   conclude         that    the

district court could reasonably infer from Gaddy’s actions that

he intended to cause bodily injury to Agent Graham with the

Mustang.        See, e.g., United States v. Valdez-Torres, 108 F.3d

385, 388 (D.C. Cir. 1997); United States v. Garcia, 34 F.3d 6,

10-11 (1st Cir. 1994).

     Gaddy       also   contends        that       the        district          court    erred    in

applying USSG § 2A2.2(a), because the issue of intent to cause

bodily injury was not submitted to the jury and proven beyond a

reasonable doubt, in contravention of Apprendi                                   v. New Jersey,

                                               4
530 U.S. 466 (2000), and its progeny.                   Apprendi held “[o]ther

than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.”

530 U.S. at 490.            The Supreme Court went a step further in

Alleyne v. United States, 133 S. Ct. 2151 (2013), declaring,

“[m]andatory minimum sentences increase the penalty for a crime.

It follows, then, that any fact that increases the mandatory

minimum is an ‘element’ that must be submitted to the jury.”

133 S. Ct. at 2155.

     These decisions have no application in Gaddy’s case.                         The

district   court’s      factual       finding    regarding       intent    did    not

increase   Gaddy’s    statutory        minimum    or    maximum    sentence,      but

merely   determined     his       Guidelines    range   within    the     prescribed

statutory range.      Courts have consistently rejected claims that

facts    underlying     a     defendant’s        Guidelines      range     must    be

submitted to a jury.         See United States v. Booker, 543 U.S. 220,

233 (2005) (“[W]hen a trial judge exercises his discretion to

select a specific sentence within a defined range, the defendant

has no right to a jury determination of the facts that the judge

deems relevant.”); see also Alleyne, 133 S. Ct. at 2163 (“Our

ruling   today   does       not    mean   that    any   fact     that     influences

judicial discretion must be found by a jury.                        We have long



                                          5
recognized      that      broad     sentencing       discretion,       informed     by

judicial factfinding, does not violate the Sixth Amendment.”).

       Next,    Gaddy     argues    that       the   district   court     erred    in

applying       a      four-level       enhancement          pursuant      to      USSG

§ 2A2.2(b)(2)(B)        for   use    of    a    dangerous    weapon     during     the

offense.       The same reasoning that supports application of USSG

§ 2A2.2(a)     also     supports    application       of   § 2A2.2(b)(2)(B),       and

the commentary specifically provides that “[i]n a case involving

a dangerous weapon with intent to cause bodily injury, the court

shall apply both the base offense level and subsection (b)(2).”

USSG   § 2A2.2     cmt.    n.3    (emphasis      added).      Furthermore,       after

striking Agent Graham’s car and fleeing the scene, Gaddy led

police on a high speed car chase in heavy traffic, resulting in

at least one accident.            As the Government notes, “[f]leeing from

law enforcement authorities by driving [a vehicle] recklessly

and at a high rate of speed to escape capture constitute[s]

another dangerous, life-threatening use of the vehicle — which

already had become a dangerous weapon in the course of this

criminal event . . . and this second dangerousness justifies the

enhancement for otherwise using a dangerous weapon.”                           United

States v. Morris, 131 F.3d 1136, 1138 (5th Cir. 1997).

       Gaddy    also    asserts     that       the   district   court     erred     by

increasing his offense level under USSG § 2A2.2(b)(7).                            This

provision calls for a two-level increase if the defendant was

                                           6
convicted under 18 U.S.C. § 111(b).                       Gaddy contends that this

increase,      as     well    as    the       four-level        increase     under     USSG

§ 2A2.2(b)(2)(B), amount to double counting.

       In applying the Guidelines, double counting is permitted

unless expressly prohibited.                  United States v. Rivera-Santana,

668 F.3d 95, 201 (4th Cir. 2012); see also USSG § 1B1.1 cmt. n.4

(“The   offense       level    adjustments         from    more      than   one    specific

offense characteristic within an offense guideline are applied

cumulatively        (added    together)        unless     the     guideline       specifies

that    only     the    greater         (or     greatest)       is    to    be     used.”).

Section 2A2.2 does not expressly prohibit double counting.                             The

district court properly applied both enhancements.

       Finally, Gaddy challenges the six-level enhancement under

USSG § 3A1.2(b), which applies when the victim of the offense is

a government officer or employee, the defendant was motivated by

the    victim’s     status     as   a    government       officer      or   employee    in

committing      the     offense,        and       “the    applicable        Chapter    Two

guideline      is   from     Chapter     Two,     Part    A   (Offenses      Against    the

Person).”      USSG § 3A1.2(b).           Gaddy questions the finding that he

knew that Agent Graham was a law enforcement officer.

       The evidence presented at trial showed that the emergency

lights on Agent Graham’s vehicle were activated when Gaddy drove

into it.     Graham and Gaddy had eye contact before the collision.

Gaddy’s own trial testimony revealed that he was well aware that

                                              7
Graham was a law enforcement official.                      Claiming that it had

actually been Graham who had driven into him, Gaddy testified,

“I couldn't even believe [sic] he hit me for real because, I

mean,   that’s     not   what       the    police   do.”      We    conclude    that   a

preponderance      of    the    evidence         supports    application       of   the

§ 3A1.2(b) enhancement.

       Accordingly, we affirm Gaddy’s sentence.                     We dispense with

oral    argument    because         the    facts    and    legal    contentions     are

adequately   presented         in    the    materials      before   this   court    and

argument would not aid the decisional process.

                                                                               AFFIRMED




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