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United States v. Dennings

United States Court of Appeals, Fourth Circuit

April 24, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
KEVIN LEE DENNINGS, Defendant-Appellant.

          Argued: January 31, 2019

          Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:17-cr-00227-H-1)

         ARGUED:

          Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.

          Amy N. Okereke, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

         ON BRIEF:

          G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.

          Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

          Before AGEE and FLOYD, Circuit Judges, and TRAXLER, Senior Circuit Judge.

          AGEE, CIRCUIT JUDGE:

         In this appeal, Kevin Lee Dennings contends that the district court improperly calculated his Sentencing Guidelines range by including an offense characteristic enhancement for reckless endangerment during flight under U.S.S.G. § 3C1.2. For the reasons set out below, we affirm.

         I.

         In March 2017, Dennings approached a man while wearing a t-shirt around his head and face. The man observed Dennings pull a firearm out of his pocket. Believing he was being robbed, the man punched Dennings. In the scuffle that followed, Dennings' firearm discharged twice, although it's not clear whether the discharge was intentional or accidental. No one was injured by the gunfire.

         When Dennings heard police sirens, he disengaged from the scuffle and fled. A police officer in the area saw Dennings running with a "garment over his face" and pursued him. J.A. 78. The officer stated that during the chase, he observed "that Dennings' right hand was not empty and freely swinging like his left hand, but [the officer] was unable to determine if Dennings was digging in his pocket or holding onto something." J.A. 78. Dennings ignored the officer's repeated instructions to stop, but at some point Dennings fell to the ground and the officer landed on top of him. Although Dennings said he "gave up," he was laying on his ...


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