Argued: November 1, 2018
from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District
Elizabeth Anne Franklin-Best, BLUME, FRANKLIN-BEST &
YOUNG, LLC, Columbia, South Carolina, for Appellant.
Elizabeth Parr Hecker, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
M. Gore, Acting Assistant Attorney General, Tovah R.
Calderon, Appellate Section, Civil Rights Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
WILKINSON, WYNN, and DIAZ, Circuit Judges.
Michael Slager ("Defendant"), a former officer with
the North Charleston Police Department, admitted that he
"willfully" shot and killed Walter Scott
("Scott"), when Scott was unarmed and fleeing
arrest. Defendant further admitted that his decision to shoot
Scott was "objectively unreasonable." Based on
those admissions, Defendant pleaded guilty to depriving Scott
of his civil rights under color of law.
district court sentenced Defendant to a 240-month term of
imprisonment. Before this Court, Defendant argues that the
district court reversibly erred in setting his sentence by:
(1) using second-degree murder as the sentencing
cross-reference for his offense rather than voluntary
manslaughter, and (2) applying a two-level enhancement for
obstruction of justice. Finding no reversible error, we
affirm Defendant's sentence.
2016, a federal grand jury in the District of South Carolina
returned an indictment alleging, among other things, that
Defendant, "while acting under color of law as an
officer with the North Charleston Police Department, shot
[and killed] Walter Scott without legal justification,
willfully depriving him of the right . . . to be free from
the use of unreasonable force by a law enforcement
officer." J.A. 13. In the meantime, Defendant was tried
in state court on one count of murder. That trial resulted in
a hung jury and mistrial.
Defendant entered into a global plea agreement with the
United States and the State of South Carolina. Under that
agreement, in exchange for Defendant's guilty plea in
federal court to one count of depriving Scott of his civil
rights under color of law, the United States agreed to drop
the remaining counts of the indictment and agreed to
recommend a three-level reduction in the applicable
sentencing level for acceptance of responsibility.
Additionally, South Carolina agreed not to retry Defendant
and dismissed the murder charge against him.
the undisputed facts that formed the basis for
Defendant's plea includes evidence showing that on the
morning of April 4, 2015, while on duty, Defendant stopped
Scott's vehicle after observing that his center brake
light was not working. After the stop, Scott fled on foot and
Defendant chased him. During the chase, Defendant shot his
taser probes twice, hitting and bringing Scott down with the
second shot. See United States v. Slager, No.
2:16-CR-00378-DCN, 2018 WL 445497, at *2 (D.S.C. Jan. 16,
point thereafter, Scott got up and fled. While Scott was
unarmed and running away, Defendant drew his
department-issued firearm and fired eight shots at Scott,
five of which struck Scott in the back. Scott died on the
scene from these wounds. Id.
bystander witnessed and testified about the incident. The
bystander also filmed parts of the incident. The
bystander's testimony and video of the incident directly
contradicted Defendant's initial account of the incident.
In conformance with the global guilty plea agreement,
Defendant admitted that he "used deadly force even
though it was objectively unreasonable under the
circumstances." Id. And, Defendant acknowledged
that "his actions were done willfully, that is he acted
voluntarily and intentionally and with specific intent to do
something that the law forbids." Id.
sentencing hearing began on December 4, 2017, and lasted four
days. Because Defendant pleaded guilty to depriving Scott of
his civil rights under color of law, the district court was
required during sentencing to cross-reference the offense
underlying the deprivation. See U.S.S.G. §
2H1.1(a)(1). The government contended that the proper
cross-reference was second-degree murder because Defendant
was acting with malice aforethought when he shot Scott. In
contrast, Defendant argued that the proper cross-reference
was voluntary manslaughter because he was provoked by Scott
and was thus not acting with malice.
most of the facts were undisputed at Defendant's
sentencing hearing, the government and Defendant disagreed as
to what occurred after Scott fell to the ground, but
before Scott got up and ran away from Defendant.
government's version of events is based primarily on the
only third-party eyewitness to the shooting, Feidin Santana.
Santana recounted the shooting during a South Carolina Law
Enforcement Division ("SLED") interview, and during
Defendant's state and federal proceedings. Each time,
Santana provided a consistent account of the shooting.
traveling to work on the morning of the shooting, Santana saw
Scott running from Defendant. Santana followed, but briefly
lost sight of Scott and Defendant. When Santana next saw
them, Scott was facing down, and Defendant was on top of
Scott and "trying to control" him. J.A. 971.
Santana testified that it sounded like Scott was "being
hurt" and he heard something "electric." J.A.
972. According to Santana, Defendant punched Scott in the
back, but Scott never flipped over. Santana did not see Scott
punch back. Nor did Santana see Scott grab the taser and
charge toward Defendant. Indeed, Santana never saw Scott
holding the taser. Rather, according to Santana, Scott did
not seem to want to "hurt" Defendant but was
"just trying to leave." J.A. 974. At some point,
Scott shot up "aggressively," Santana testified.
J.A. 975. By this, Santana meant that Scott was
"determined to . . . just leave." Id. When
Scott broke free and began to run, Defendant shot him.
Defendant then handcuffed Scott and checked his pulse but did
not treat him.
also recorded a portion of the encounter with his cell phone.
Santana's video does not clearly show the period during
which Scott and Defendant were allegedly on the ground. But
the video does show that Scott stood up and was running
away-not pointing a taser at Defendant or advancing toward
Defendant-when Defendant fired at him. Additionally, the
video shows Defendant picked up the taser ...