(E. D. Okla.) (D.C. No. 6:12-CR-00045-JHP-1).
Before KELLY, MURPHY, and HARTZ, Circuit Judges.
ORDER AND JUDGMENT
Harris L Hartz, Circuit Judge.
Defendant Michael Mayberry challenges his sentencing enhancement under USSG § 2K2.1(b)(6)(B) for pointing a firearm at a vehicle. He argues that the enhancement was improper because he acted in self-defense. We affirm his sentence because the district court did not clearly err when it found that he did not act in self-defense.
Defendant was convicted by a jury in the United States District Court for the Eastern District of Oklahoma on one count of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). The presentence investigation report (PSR) calculated that his base offense level was 20 and that he should receive a four-level increase under USSG § K2.1(b)(6)(B) for using his firearm to shoot at a vehicle. The PSR also calculated his criminal-history category as III, resulting in a guideline sentencing range of 63 to 78 months' imprisonment. Defendant's single objection to the PSR was that he should not receive the four-level enhancement because he acted in self-defense. The PSR rejected the objection because (1) "The defendant's argument that he possessed the firearm in self-defense did not give rise to a jury instruction for self-defense during trial, " and (2) "there were no casings, bullet holes or other evidence located in the area of the shooting that indicates the defendant was shot at first." R, Vol. 3 at 15.
Two witnesses at trial had observed the shooting incident. The first to testify was Joe Pierce, who was outside washing his car when he saw Defendant walking west down the sidewalk of Elizabeth Avenue in Muskogee. As Defendant approached the intersection of Elizabeth and 30th Street, Mr. Pierce saw a car slowly moving south on 30th Street toward the intersection. Although Mr. Pierce thought at first that it might hit Defendant as he crossed the intersection, it safely passed him. After the car was "a little ways from [Defendant], " Mr. Pierce heard someone in the car say, "[T]here he go right there, " followed by gunfire. Id., Vol. 2 at 70 (internal quotation marks omitted). When he heard the gunfire he looked at Defendant and saw "him come out with a gun from behind his back and turn shooting at the car and I heard the car shooting at him." Id. at 71. He estimated that the car was 30 to 40 feet past Defendant when he saw Defendant shooting. Defendant was "crouched down a little bit right there in the middle of the street" and shooting behind his back. Id. at 72. As the car drove past Defendant it initially kept its slow pace, but it sped up when it got further away. Mr. Pierce heard at least six shots and testified that "I guess [Defendant] kept shooting until the vehicle was out of sight and then after that he headed out through some houses." Id. at 73. When asked whether he knew whether Defendant or someone in the vehicle shot first, he said, "That's what I—I don't know who shot first, " id. at 75; and when asked whether he had "hear[d] shooting before this individual pulled the gun out of the back of their pants there, " he replied, "I—I'm not sure. I think I heard gunfire—I don't know if he was retaliating or firing." Id. When questioned about his grand-jury testimony that Defendant had retaliated, he replied:
Yeah, like I said, I don't know who fired first, but like I said, it could have been him retaliating or it could have been them. I don't know who fired first. All I know is I heard the gunshots.
Id. at 81.
The other witness was Willie Hopkins, a plumber who was working nearby. After hearing gun shots, he "[saw] a young man run out in the street and then . . . heard three more shots." Id. at 102. Defendant was the only one he saw shooting. When asked for more detail, he testified that Defendant "ran in the middle of 30th Street and turned around and started shooting." Id. at 103. After the shooting incident, Defendant ran away. Shortly thereafter, he came to the house where Mr. Hopkins was working and said, "They are shooting at me, " to which Mr. Hopkins replied, "Man, you was the only one I seen shooting." Id. at 102 (internal quotation marks omitted).
To support its account of the shooting, the government introduced shell-casing evidence at trial. A police officer explained that he had found three .40 caliber shell casings in the general area of the intersection where witnesses had observed the shooting. The shell casings were spread out over about 30 or 40 feet in the intersection or just north of it. Two were Winchester casings and one was a Federal casing. The officer looked for casings for a block south of the intersection but found none. Defendant's gun, which was recovered from a house in the neighborhood, was a .40 caliber Smith & Wesson pistol; its magazine included rounds from different manufacturers.
At sentencing, the district court said:
Based on the evidence and testimony presented at jury trial, the Court finds by a preponderance of the evidence that a claim of self defense and defendant's discharge of a firearm is not supported by the facts in this case. Therefore, the Court finds that the defendant appropriately received a four level enhancement for possession of a firearm in connection with another felony offense pursuant to Section 2K2.1(b)(6). The defendant's objection is overruled.
Id. at 22–23. Defendant renewed his objection that the four-level enhancement "was not procedurally sound or substantively sound by virtue of the lack of facts and the lack of recognition of the self defense argument that we've made." Id. at 26. The court sentenced Defendant ...