Filed: May 19, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 5-19-2009 USA v. Bruce Edward Fitzger Precedential or Non-Precedential: Non-Precedential Docket No. 08-2608 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Bruce Edward Fitzger" (2009). 2009 Decisions. Paper 1353. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1353 This decision is brought to you for free and open access by the
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 5-19-2009 USA v. Bruce Edward Fitzger Precedential or Non-Precedential: Non-Precedential Docket No. 08-2608 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Bruce Edward Fitzger" (2009). 2009 Decisions. Paper 1353. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1353 This decision is brought to you for free and open access by the ..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-19-2009
USA v. Bruce Edward Fitzger
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2608
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Bruce Edward Fitzger" (2009). 2009 Decisions. Paper 1353.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1353
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 08-2608
____________
UNITED STATES OF AMERICA
v.
BRUCE EDWARD FITZGERALD,
Appellant
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-07-cr-00017-001)
District Judge: Honorable Maurice B. Cohill, Jr.
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 24, 2009
Before: SCIRICA, Chief Judge, SLOVITER and FISHER, Circuit Judges.
(Filed: May 19, 2009 )
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Bruce Edward Fitzgerald appeals from the District Court’s judgment of sentence.
We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
A.
While on patrol in a marked patrol car in the early morning hours of November 2,
2006, Pennsylvania state troopers Nathaniel Lieberum and William Dowlin noticed a
gold-colored Cadillac sedan with darkly tinted windows pulling out of a gas station in
Uniontown, Pennsylvania. The troopers ran the Cadillac’s license plate number through
the National Crime Information Center database and, discovering a problem with the
vehicle registration, immediately activated their patrol car’s emergency lights and siren to
signal the driver to stop. As the Cadillac pulled over to the side of the road, Fitzgerald,
who was riding in the car as a passenger, exited the car and fled on foot. He was quickly
followed by Trooper Lieberum, who jumped out of the patrol car and gave chase,
repeatedly identifying himself as a police officer and ordering Fitzgerald to stop running.
Lieberum soon caught up with Fitzgerald and, after a struggle, took him into custody,
discovering in the process that Fitzgerald was carrying a loaded nine-millimeter semi-
automatic pistol.
Soon after Fitzgerald was taken into custody, he complained that he was ill and
was taken to Uniontown Hospital, where he received medical treatment. Trooper John
2
Weaver was then sent to retrieve Fitzgerald from the hospital and return him to the police
barracks. Weaver had little problem walking Fitzgerald out of the hospital but, as he
attempted to seat Fitzgerald in the back seat of the patrol car, Fitzgerald shoved him,
knocking him off balance. Freed from Weaver’s grasp, Fitzgerald ran up a small hill
towards an adjacent parking lot, and Weaver raced after him. But Weaver did not make it
far, dropping to the ground in pain after only a few moments because, as was
subsequently revealed, he had suffered a serious knee injury. Another trooper at the
scene apprehended Fitzgerald. As he was being taken back into custody, Fitzgerald
stated: “You know who I am, you guys have me, I give up.”
B.
Fitzgerald entered an open plea of guilty to one count of possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1). After the District Court accepted
his guilty plea, the United States Probation Office prepared a presentence report (PSR)
using the November 2007 edition of the United States Sentencing Guidelines. The
Probation Office calculated Fitzgerald’s base offense level as 20 under Guidelines
§ 2K2.1(a)(4) because he had previously been convicted of a felony controlled-substance
offense, and recommended two sentencing enhancements: a four-level enhancement
under § 2K2.1(b)(6) for possessing a firearm in connection with another felony offense
and a two-level enhancement under § 3C1.2 for recklessly creating a substantial risk of
death or other serious bodily injury to another person in the course of fleeing from a law
3
enforcement officer. The Probation Office also recommended two sentencing reductions:
a two-level reduction under § 3E1.1(a) for acceptance of responsibility and a one-level
reduction under § 3E1.1(b) for timely notifying the government of the intention to plead
guilty. The resulting total offense level of 23, combined with Fitzgerald’s criminal
history category of IV, yielded an advisory Guidelines range of seventy to eighty-seven
months of imprisonment.
At sentencing, the District Court generally agreed with the Probation Office’s
recommendations, applying both sentencing enhancements over Fitzgerald’s objections
and arriving at the same Guidelines range. In doing so, the District Court determined that
the four-level enhancement under § 2K2.1(b)(6) was appropriate because there was “no
question” that Fitzgerald had recklessly endangered Trooper Lieberum’s life by struggling
with him while holding the gun, “whether [the gun] was pointed at [Lieberum]” or not,
and that the two-level enhancement under § 3C1.2 was appropriate because Fitzgerald
recklessly created a substantial risk of serious bodily injury to Trooper Weaver by
“attempting to escape . . . , whether [Weaver] had a prior injury to his knee or not.”
After denying Fitzgerald’s request for a downward variance, the District Court
sentenced him to seventy months of imprisonment and three years of supervised release.
Fitzgerald now appeals from the District Court’s judgment of sentence, arguing that the
District Court erred in applying the enhancements and by failing to adequately explain its
4
rejection of his argument that the circumstances of his “difficult youth” merited a lower
sentence.
II.
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231 and we
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review a district
court’s sentencing decisions for reasonableness under “a deferential abuse-of-discretion
standard.” Gall v. United States, 128 S. Ct. 586, 591 (2007); see United States v. Wise,
515 F.3d 207, 217 n.5 (3d Cir. 2008). In this regard, “our role is two-fold.”
Wise, 515
F.3d at 217. “We must first ensure that the district court committed no significant
procedural error in arriving at its decision” and, if it has not, “we then review the
substantive reasonableness of the sentence.”
Id. at 217-18 (citing
Gall, 128 S. Ct. at 597);
see United States v. Levinson,
543 F.3d 190, 195 (3d Cir. 2008) (“Our responsibility on
appellate review of a criminal sentence is limited yet important: we are to ensure that a
substantively reasonable sentence has been imposed in a procedurally fair way.”). A
district court abuses its discretion when it bases its decision on a clearly erroneous finding
of fact or an erroneous legal conclusion.
Wise, 515 F.3d at 217. “At both stages of our
review, the party challenging the sentence has the burden of demonstrating
unreasonableness.” United States v. Tomko, --- F.3d ----,
2009 WL 1025876, at *7 (3d
Cir. Apr. 17, 2009) (en banc) (citing United States v. Cooper,
437 F.3d 324, 332 (3d Cir.
2006)).
5
III.
A.
Fitzgerald first argues that the District Court abused its discretion in applying
§ 3C1.2’s two-level enhancement because it did so based on a clearly erroneous factual
finding, namely, that he recklessly created a substantial risk of serious bodily injury to
Trooper Weaver by “attempting to escape.” Fitzgerald contends that his attempted escape
“may have presented no more ‘substantial risk’ of injury or harm to Trooper Weaver than
would a brisk walk, a jog, or a game of touch football” because, he speculates, Weaver’s
injury “could have been a mere freak occurrence or a fluke” or could have resulted from
his “pre-existing health conditions, or something else.”
This argument is without merit. The District Court based its factual finding on the
evidence presented at the sentencing hearing, including Weaver’s testimony that
Fitzgerald “shoved” him and “took off on foot” in an attempt to escape from police
custody, and that he was seriously injured while giving chase. “A [factual] finding is
‘clearly erroneous’ when, although there is evidence to support it, the reviewing body on
the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc) (internal
quotation marks omitted). Our review of the record in this case leaves us with no such
conviction, and we conclude that the District Court did not abuse its discretion in
increasing Fitzgerald’s total offense level under § 3C1.2. Cf. United States v. Luster, 305
6
F.3d 199, 202 (3d Cir. 2002) (recognizing that “every escape scenario is a powder keg,
which may or may not explode into violence and result in physical injury to someone at
any given time, but which always has the serious potential to do so”).
B.
Fitzgerald next argues that the District Court abused its discretion by applying the
four-level enhancement under § 2K2.1(b)(6) for possession of a firearm in connection
with another felony offense. He insists that the District Court predicated its application of
§ 2K2.1(b)(6) on a finding that he “pointed the gun at Trooper Lieberum’s head” and,
proceeding from that premise, argues that the finding was clearly erroneous because “the
government completely failed to prove” that he did so.
This argument need not detain us for long, because it fails at its premise. Contrary
to Fitzgerald’s assertion, the District Court found that he recklessly endangered Trooper
Lieberum’s life “whether [the gun] was pointed at [Lieberum]” or not. And this was not
error. Under Pennsylvania law, a person commits the crime of recklessly endangering
another person “if he recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.” 18 Pa. Cons. Stat. Ann. § 2705. To
establish that Fitzgerald committed this uncharged felony,1 the government was not
1
Although Pennsylvania considers a violation of 18 Pa. Cons. Stat. Ann. § 2705 to
be a second-degree misdemeanor, the offense is punishable by up to two years in prison,
18 Pa. Cons. Stat. Ann. § 1104(2), and therefore qualifies as “another felony offense”
within the meaning of Guidelines § 2K2.1(b)(6). See Guidelines § 2K2.1 cmt. n.14(C)
(defining “another felony offense” for purposes of § 2K2.1(b)(6) as “any federal, state, or
7
required to prove that he pointed the gun at Lieberum – it was enough to demonstrate by a
preponderance of the evidence that he recklessly endangered Lieberum’s life by
brandishing the gun during their struggle. Cf. Commonwealth v. Hopkins, 747 A.2d 910,
916 (Pa. Super. Ct. 2000) (concluding that “[b]randishing a loaded firearm during the
commission of a crime provides a sufficient basis on which a factfinder may conclude
that a defendant” violated § 2705). We are satisfied that the evidence in the record is
sufficient to support application of the four-level enhancement under § 2K2.1(b)(6) and
conclude that the District Court did not abuse its discretion in doing so.
C.
Finally, Fitzgerald contends that the District Court committed a significant
procedural error by failing to adequately explain its rejection of his argument for a
downward variance 2 based on his “history and characteristics,” specifically the
circumstances of his “difficult youth,” under 18 U.S.C. § 3553(a)(1). We disagree.
As Fitzgerald correctly points out, a sentencing court “must acknowledge and
respond to any properly presented sentencing argument which has colorable legal merit
local offense punishable by imprisonment for a term exceeding one year, regardless of
whether a criminal charge was brought, or a conviction obtained”).
2
A “variance” is a decision to impose a sentence that diverges from the advisory
Guidelines range, either upward or downward, based on consideration of the factors set
forth in 18 U.S.C. § 3553(a), as distinct from a “departure,” which is a decision to alter
the Guidelines range itself “based on reasons provided by the Guidelines themselves.”
United States v. Lofink, --- F.3d ----, 2009 WL 1140258, at *5 n.14 (3d Cir. Apr. 29,
2009).
8
and a factual basis.” United States v. Ausburn, 502 F.3d 313, 329 (3d Cir. 2007). And
we have held that “[t]here are indeed situations in which a district court’s failure to
adequately explain its rejection of a legally recognized sentencing factor would amount to
a ‘significant procedural error’ under Gall.” United States v. Howe,
543 F.3d 128, 136
(3d Cir. 2008). But such a situation is not presented here. The record reflects that the
District Court credited Fitzgerald’s argument for a downward variance, specifically
discussing his “very troubled childhood” and acknowledging the “eloquent letters written
by his sister and others on his behalf” and “the testimony of his cousin and sister,” but
concluded that those mitigating circumstances did not outweigh the other § 3553(a)
factors. We are satisfied that the explanation set forth by the District Court shows that it
“considered the parties’ arguments and ha[d] a reasoned basis for exercising [its] own
legal decisionmaking authority.” Rita v. United States,
127 S. Ct. 2456, 2468 (2007).3
IV.
For the foregoing reasons, we will affirm the District Court’s judgment of
sentence.
3
Fitzgerald does not challenge the substantive reasonableness of his sentence, and
we discern no substantive error related to his sentence.
9
