United States Court of Appeals

For the Eighth Circuit

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No. 16-3317

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Brannon L. Mackins

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - Cape Girardeau

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 Submitted: April 3, 2017

 Filed: July 28, 2017

[Unpublished] 

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Before WOLLMAN, LOKEN, and RILEY, Circuit Judges.

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PER CURIAM.

Brannon L. Mackins pleaded guilty to one count of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him

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The Honorable Stephen N. Limbaugh, Jr., United States DistrictJudge for the

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Eastern District of Missouri.
to 108 months’ imprisonment. Mackins appeals from his sentence, arguing that the

evidence was insufficient to support the application of a 6-level “Official Victim”

enhancement under § 3A1.2(c)(1) oftheUnited States Sentencing Guidelines Manual

(U.S.S.G. or Guidelines). We affirm.

Based on Mackins’s total offense level of 21 and a criminal history category

of III, his presentence report (PSR) recommended an advisory Guidelines range of 46

to 57 months’ imprisonment. The government objected, arguing for imposition of a

6-level enhancement under U.S.S.G. § 3A1.2(c)(1), which applies when a defendant

assaults a law enforcement officer during or in flight from the offense “in a manner

creating a substantial risk of serious bodily injury.”

During the sentencing hearing, the district court adopted the PSR’s factual

statements and then heard testimony and considered evidence regarding the

§ 3A1.2(c)(1) enhancement. Sergeant Joseph Hahn of the Cape Girardeau, Missouri,

Police Department testified that he and other officers observed Mackins, who had

outstanding warrants for his arrest, walking on a sidewalk in Cape Girardeau in

December 2015. When the officers exited their patrol car to speak with Mackins, he

entered private property and walked into the back yard of a residence. Hahn stated

that it was “very evident” that Mackins was trying to evade the officers. More

officers arrived and created a perimeter to prevent Mackinsfromescaping, effectively

trapping him within the fenced-in back yard.

Mackins told the officers that he lived at the residence and that the officers

were trespassing, but he did not know the address of the residence. He provided

Hahn with a fictitious name, date of birth, and Social Security number. Hahn testified

that Mackins appeared to be “immediately hostile and aggressive from our initial

approach.” Based on Hahn’s eighteen years of law-enforcement experience, he

believed that Mackins was preparing to physically confront the officers, “to fight or

flee.” Hahn physically placed Mackins in a seated position after Mackins refused

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Hahn’s command to sit down on the steps leading to the residence, whereupon

Mackins almost immediately stood up again. After Hahn spoke with witnesses across

the street, he returned to arrest Mackins, who was then standing in the carport.

Hahn informed Mackins that he was being arrested and grabbed Mackins’s

right arm to place him in handcuffs. According to Hahn, Mackins “violently threw

his right hand forward to break [Hahn’s] grasp on his arm.” With his left hand,

Mackins pushed off a nearby car, away from another officer who was trying to

restrain him. Mackinsthen reached with his right hand for either his waistband or the

front pocket of his sweatshirt. He repeatedly attempted to reach into his pocket while

Hahn grabbed and held his right arm to prevent him from doing so. Hahn stated that

Mackins appeared to be attempting to retrieve an object.

“After a substantial struggle,” Mackins and Hahn “went to the ground.” As

Hahn pinned him down, Mackins attempted to push himself off the ground with his

left hand while again reaching toward his pocket with his right hand. Hahn

eventually succeeded in placing Mackins in handcuffs.

The officers found a loaded handgun in the pocket that Mackins had been

reaching for. After Mackins yelled to the crowd of onlookers that Hahn had

attempted to choke him and otherwise injure him, Hahn explained to Mackinsthat he

had used the force required to stop Mackins from drawing the gun and “forcing a

lethal situation,” implying that, had Mackins drawn the gun, Hahn would have had

to use deadly force. Mackins replied, “[I]f I had got to it, you wouldn’t have had a

chance to.” “Based on [Mackins’s] actions and the situation and his tone,” Hahn

interpreted this statement as a declaration that Mackins had intended to draw the gun

and fire upon Hahn or the other officers.

During cross-examination, Hahn agreed that Mackins had made the statement

described above shortly after the physicalstruggle with Hahn, and while complaining

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of neck and shoulder pain. Mackins introduced the probable cause affidavit of

Patrolman Nick Becker, which, Hahn acknowledged, did not mention Mackins’s

statement. Hahn also acknowledged that the report of another officer, which was not

offered at the hearing, did not indicate that Mackins made this statement. Hahn

testified that while the officers began to approach Mackins in the back yard,

Mackins’s hands were free and he made no attempt to reach into his pockets or draw

a firearm. Hahn also testified that when he physically forced Mackins into a seated

position, Mackins’s hands were free and he did not reach for his pockets. Hahn

agreed that Mackins began reaching for his pockets only after Hahn placed himunder

arrest and attempted to secure him in handcuffs. Although Hahn did not see the gun

until after he placed Mackins in handcuffs, Hahn testified that even before that time

he had “believed very strongly based upon a high number of indicators” that Mackins

had a weapon and had attempted to draw it.

The district court found by a preponderance of the evidence that the 6-level

§ 3A1.2(c)(1) enhancement was appropriate because “there was assaultive conduct

on the part of the Defendant against the arresting officer that was sufficiently serious

to create at least a substantial risk of serious bodily injury.” The court stated:

It’s the Court’s impression that the Defendant was trying to obtain a

weapon, that it’s very fortunate that there was not a shooting and that,

in effect, the Defendant actually admitted that had he been able to

retrieve that gun from his pocket that there would have been a shooting. 

Based on a total offense level of 27 and a criminal history category of III, the court

calculated an advisory Guidelines range of 87 to 108 months’ imprisonment and then

sentenced Mackins to 108 months’ imprisonment.

“This court reviews the district court’s construction and application of the

sentencing guidelines de novo, and we review its factual findings regarding

enhancements for clear error.” United States v. Olson, 646 F.3d 569, 572 (8th Cir.

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2011) (quoting United States v. Bastian, 603 F.3d 460, 465 (8th Cir. 2010)). “The

government must prove the facts needed to support a sentencing enhancement by a

preponderance of the evidence.” Id. (quoting United States v. Hansel, 524 F.3d 841,

847 (8th Cir. 2008)). 

We perceive no error in the district court’s conclusion that the factual findings

set forth above were sufficient to support the § 3A1.2(c)(1) enhancement. The

district court found that Mackins attempted to draw a weapon while resisting arrest

and struggling with Hahn, and that Mackinslater admitted that he had intended to use

the gun against the arresting officers. Such an attempt constituted an assault upon the

arresting officers that created a substantial risk of serious bodily injury. See United

States v. Hill, 583 F.3d 1075, 1077, 1079-80 (8th Cir. 2009) (upholding a

§ 3A1.2(c)(1) enhancement where the defendant repeatedly stopped fleeing, turned

toward pursuing police officers, and attempted to draw a gun, and later attempted to

draw the gun while physically resisting arrest); see also Olson, 646 F.3d at 574

(upholding a § 3A1.2(c)(1) enhancement where the defendant refused officers’

commands to drop the gun he was holding and raised it as if to fire at the officers).

The district court’s factual findings were not clearly erroneous. To the extent

that Mackins disputes the court’s finding that he actually made the statement

regarding using the gun against the arresting officers, that finding depends on the

district court’s assessment of Hahn’s credibility, which is “quintessentially a

judgment call and virtually unassailable on appeal.” United States v. SicarosQuintero, 557 F.3d 579, 582 (8th Cir. 2009) (quoting United States v. Hart, 544 F.3d

911, 916 (8th Cir. 2008)). Mackins argues that the statement might have been

delivered in a sarcastic tone, and thus not an admission that he had intended to use

the gun against the officers but rather an “attempt through bombast to be insulting and

arrogant upon being informed by Hahn that Mackins just came very close to being

killed.” Appellant’s Br. 17. Whatever the plausibility of such an interpretation of

Mackins’s statement, the district court did not clearly err in rejecting it. Given

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Hahn’s firsthand observations of Mackins’s tone and behavior during the encounter,

the court did not clearly err in crediting Hahn’s testimony that the statement conveyed

Mackins’s intent to use the gun against the officers, had he been able to draw it. 

Likewise also with respect to Mackins’s arguments that he reached for his pockets

only to prevent Hahn from placing him in handcuffs and that if he had intended to

draw the gun and use it against the officers, he would have done so before he was

physically restrained. The district court did not clearly err in concluding, based on

Hahn’s testimony, that Mackins attempted to draw the gun after Hahn informed him

he was being placed under arrest.

The judgment is affirmed. 

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