1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-30331

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ANDRE GILLYARD,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

August 9, 2001

Before EMILIO M. GARZA, PARKER, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

On May 18, 1999, a highway patrolman with the Texas Department

of Safety, Bruce Dalme, stopped two vehicles traveling eastbound on

Intersta te 20 between Dallas/Fort Worth, Texas, and Shreveport,

Louisiana, for following too closely behind an 18-wheeler. A red

Chrysler Concorde, driven by Andre Gillyard’s girl friend Natasha

Lawrence an d in which Appellant Andre Gillyard was a passenger,

followed t he 18-wheeler two car lengths behind. Gillyard’s2

friends, Helen Guy, Tiffany Guy, and Princeston Parks, traveled one

car length behind the Concorde in a Pontiac Grand Am. When Officer

Dalme pulled behind the cars, the drive rs decreased speed,

increased intervals, and eventually stopped.

When the driver from the lead car exited the Concorde and

approached the tr ooper, Gillyard slid into the driver’s seat and

sped off. Trooper Dalme pursued Gillyard for 32 miles and at

speeds exceeding 120 miles per hour. According to the PreSentencing Report, Gillyard “tr aveled through a one lane

construction zone to move around other vehicles, struck another

vehicle, drove onto the median causing construction workers to jump

out of the way for their safety and continued driving erratically

across the Louisiana state line.” While two 18-wheelers were

occupying both lanes, Gillyard pa ssed them on the right shoulder

and, in doing so, almost struck a Caddo Parish Sheriff’s Office

patrol car. Gillyard avoided the patrol car but caromed off a

concrete piling instead. Gillyard exited the interstate in

Shreveport, Louisiana, sped past a stopped scho ol bus, ran stop

signs in a residential neighborhood, and jumped from the car while

it was in motion. Trooper Dalme finally apprehended Gillyard

several blocks away and subsequently found approximately six bricks

of powder cocaine in the trunk of his car.

Gillyard and Lawrence were charged in a two-count superseding

indic tment with conspiracy to possess cocaine hydrochloride with

intent to distribute and possession of cocaine hydrochloride with3

intent to distribute. Gillyard moved to suppress the cocaine and

argued that the officer lacked probable cause to stop the car

initially. The magistrate judge recommended that his motion be

denied. Over Gillyard’s objection, the district court adopted the

magistrate judge’s recommendation.

Gillyard conditionally pleaded guilty to both co unts of the

indictment but reserved his right to appeal the denial of his

motion to suppress. The district court assessed a three-level

enhancement under U.S.S.G. § 3A1.2(b) for assaulting a law

enforcement officer and a two-level enhancement under § 3C1.2 for

reckless endangerme nt of others during flight. Gillyard was

sentenced to 240 months’ imprisonmen t

, five years’ supervised

release, and a $200 special assessment. Gillyard appealed. On

appeal, Gillyard challenges the d istrict court’s denial of his

motion to suppress and the district court’s enhancement under the

sentencing guidelines.

I. Motion to Suppress

Gillyard argues that the district court erred in not

suppressing the cocaine found in the car because Trooper Dalme

lacked probable cause to arrest him. Gillyard contends that the

stop was a pretext to search for narcotics and suggests that

Trooper Dalme’s act ions were motivated by racial animus or

profiling; Gillyard states that Trooper Dalme was looking into cars4

and that the “last vehicle stopped by Trooper Dalme four minutes

earlier was also operated by a black person.” Gillyard argues that

Trooper Dalme’s statement that the car was following too closely is

contradicted by the affidavits and testimony of his three friends

who witnessed the stop, Helen Guy, Tiffany Guy, and Princeston

Parks. In addition, Gillyard contends that the video camera inside

Trooper Dalme’s car shows no evidence that the cars were following

too closely. Gillyard entreats that the cocaine should be

suppressed as fruit of an unlawful stop.

The district court, in deny ing the motion to suppress,

explicitly credited Trooper Dalme’s testimony over that of

Gillyard’s wi tnesses. In response to Gillyard’s contention that

the videotape showed a reasonable distance between the cars, the

court concluded “[the video recorder] was clearly turned on after

the Trooper had pulled into position behind the red Concorde” and

accepted Trooper Dalme’s explanation that the cars had dropped back

as he approached.

“In reviewing a district court’s ruling on a motion to

suppress, we review questions of law de novo

, and accept the trial

court’s factual fin dings unless they are clearly erroneous.”

United States v. Castro

, 166 F.3d 728, 731 (5 th Cir. 1999) (en banc)

(citing United States v. Carrillo-Morales

, 27 F.3d 1054 , 1060-61

(5 th Cir. 1994)). “We also view the relevant evidence in a light

most favorable to the party that prevailed; in this case, the5

government.” Id. (citing United States v. Nichols , 142 F.3d 857,

866 (5 th Cir. 1998)). “[W]hen a trial judge’s finding is based on

his decision to credit the testimony of one of two or more

witnesses, each of whom has told a coherent and facially plausible

story that is not contradicted by extrinsic evidence, that finding,

if not internally inconsisten t, can virtually never be clear

error.” A nderson v. City of Bessemer City

, 470 U.S. 56 4, 575

(1985).

As bo th parties presented coherent and facially plausible

stories, and as the district court’s factua l determination was

based on its credib ility assessment, to meet the clear error

standard Gillyard must demonstrate that D alme’s statements were

either internally inconsistent or contradicted by extrinsic

evidence. Gillyard has not argued that Dalme’s version of the

events is internally inconsistent. He contends only that the video

recording showing the cars to be a greater distance apart is

extrinsic evidence that contradicts Dalme’s story.

The district court explicitly found that the video camera was

not turned on until after Dalme approached the cars and the cars

fell back from the 18-wheeler. Gillyard does not challenge the

district court’s findings regarding when the video camera was

turned on, and Gillyard’s contention that turning on a video camera

“is not an effort which requires a great passage of time” (implying

that the camera s hould have been activated earlier) does not

“clearly demonstrate that those findings were in fact wrong.”6

Castro

, 166 F.3d at 733. The testimony of Gillyard’s witnesses

also does not demonstrate that the district court clearly erred in

accepting Trooper Dalme’s version of the events. When “there are

two permissible views of th e evidence, the factfinder’s choice

between them cannot be clearly erroneous.” Anderson , 470 U.S. at

574.

Finally, Gillyard’s argument that th e stop was motivated by

racial animus and was a pretext to search for narcotics is

u navailing, as the subjective motivations of police are deeme d

irrelevant as long as their conduct does not exceed what they are

objectively authorized to do. W hren v. United States

, 517 U.S.

806, 814 (1996). Gillyard does not argue that following too

closely is not a traffic violation under Texas law. Tex. Transp.

Code § 545.062(a) (Vernon 1999) (“An operator shall, if following

another vehicle, maintain an assured clear distance between the two

vehicles so that, considering the speed of the vehicles, traffic,

and the conditions of the highway, the operator can safely stop

without colliding with the preceding vehi cle or veering into

another vehicle, object, or person on or near the highway.”). And,

he has presented no reasonable basis to challenge the district

court’s finding that a traffic violation was, in fact, committed by

the driver of the Concorde. Thus, he has not shown that the stop

of the Concorde violated the Fourth Amendment. W hren

, 517 U.S. at

810 ( “As a general matter, the decision to stop an automobile is

reasonable where the police have probable cause to believe that a7

traffic violation has occurred.”).

II. Gillyard’s Sentencing Enhancement

Gillyard also argues that the district court erred in

assessing a three-level enhancement under U.S.S.G. § 3A1.2(b) for

assault on a law enforc ement officer and a two-level enhancement

under § 3C1.2 for reckless endangerment during flight for the same

high-speed car chase. The PSR recommended a three-level

enhancement under § 3 A1.2 because Gillyard’s threatening conduct

toward the officers was tantamount to aggravated assault against a

law enforcement officer and a two-level enhancement under § 3C1.2

for recklessly endangering others (i.e., construction workers,

school children, and other motorists) during the high-speed chase.

Although t he district court was initially “inclined to not do

both,” it later a pplied both enhancements. Gillyard argues that

this assessment constitutes impermissible “double counting” that is

explicitly prohibited by the Application Notes to § 3C1.2. S ee

United States v. Morris

, 131 F.3d 1136, 1140 (5 th Cir. 1997)

(“[D]ouble counting is prohibited only if the particular guidelines

at issue forbid it.”).

“This court reviews the sentencing court’s application of the

U.S.S.G. de novo, while reviewing the sentencing court’ s factual

findings for clear error.” United States v. Fitch , 137 F.3d 277,

281 (5 th Cir. 1998) (citing United States v. Edwards

, 65 F.3d 430,8

432 (5 th Cir. 1995)). Section 3A1.2(b) provides for a three-level

increase if “during the course of the offense or immediate flight

therefrom, the defendant . . . assaulted [an] officer in a manner

creating a s ubstantial risk of serious bodily injury.” Section

3C1.2 requires a two-level increase “[i]f the defendant recklessly

created a substantial risk of death or serious bodily injury to

another person in the course of fleeing from a law enforcement

officer.” Application note 1 to section 3C1.2 instructs that this

enhancement should not be applied “where the offense guideline in

Chapter Two, or another adjustment in Chapter Three, results in an

equivalent or greater increase in offense level solely on the basis

of the same conduct.” § 3C1.2, Application Note 1.

Gillyard contends that his conduct did not rise to the level

of assault against officers. Gillyard argues that the police were

not endangered by his erratic driving and that he did not

intentionally threaten them, but took evasive action to avoid

striking the police car. Moreover, Gillyard argues that his

conduct did not create a “substantial” risk of death or serious

bodily injury to others because he did not fire shots and because

he stayed in the eastbound lane of the Interstate. Gillyard also

contends that applying both enhancements from§ 3A1.2 and § 3C1.2

constitutes impermissible double counting.

The PSR and the evidence are sufficient to support as not

clearly erroneous the district court’s evident factua l findings

that the high-speed chase endangered both police officers and9

others. As the government contends, Gillyard “travelled through a

one lane construction zone to move around other vehicles, struck

another vehicle, drove onto the median causing construction workers

to jump out of the way for their safety an d continued driving

e rratically across the Louisiana state line.” In addition,

Gillyard’s reckless driving in residential neighborhoods and

disregard of stop signs and traffic lights endangered others. The

PSR revealed that the defendant made threatening moves with his car

towards the police vehicles and almost struck a Caddo Parish

Sheriff’s car. During the Sentencing Hearing, the district judge,

after considering the statements in the PSR and viewing the

videotape of the car chase, concluded that Gillyard placed numerous

people in serious jeopardy and committed aggravated assault against

law enforcement officers, and applied both enhancements. Because

Gillyard has not shown that the district court’s factual findings

on these issues were clearly wrong, we will not disturb the court’s

judgment on these issues.

With respect to wheth er the two sentencing enhancements

assessed by the district court under sections 3A1.2 and 3C1.2

constituted impermissible double counting, we have found no Fifth

Circuit case squarely on point on both facts and law. The

government cites other circuits’ decisions discussing the

application of sections 3A1.2(b) and 3C1.2 in which the defendant

alleged double counting. Although most of the cases are

distinguishable as they involve a combination of different kinds of1 See, e.g.

, United States v. Alicea

, 205 F.3d 480, 486 (1 st Cir.

2000) (concluding that a double enhancement under § 3A1.2(b) and §

3C1.2 for firing shots in a n open plaza and firing a pistol at

police pursuing the defendant while fleeing the scen e was not

imp ermissible double counting); U nited States v. White

, 222 F.3d

363, 376 (7 th Cir. 2000) (upholding the district court’s enhancement

of the defendant’s sentence under both § 3A1.2(b) and § 3C1.2 for

assaulting an officer with a gun before endangering others in a

flight from a bank); United States v. Swoape

, 31 F.3d 482, 483 (7 th

Cir. 1994)(applying both the enhancements in § 3A1.2(b) and § 3C1.2

because the defendant led the police on a chase endangering others

before shooting at and hitting a police officer); United States v.

Alexander

, 48 F.3d 1477, 1492 (9 th Cir. 1995) (applying both § 3C1.2

and § 3A1.2(b) because “the reckless endangerment provision applied

not only because shots were fired during the attempted getaway, but

also because of the risk of injury to civilians caused by the highspeed chase and by the defendants’ serious violations of other

traffic laws”).

2 But see United States v. Sloley

, 19 F.3d 149, 154 (4 t h Cir.

1994) (stating, in dicta, that “[i]f both § 3A1.2(b) and § 3C1.2

apply to a defendant, the court must ap ply only the former and

increase the offense level by three levels” ) (citing U.S.S.G. §

3C1.2, comment 1).

10 actions (i.e., firing a gun and leading police on a car chase), 1

other cases bear on our analysis by analogy.

T he courts that have addressed the issue of double

enhancements for different aspects of a criminal transaction have

focused on the temporal and spatial distinctiveness or separateness

of the acts in determining whether the defendant’s conduct involves

more than one culpable act. U nited States v. Matos-Rodriguez

, 188

F .3d 1300, 1312 (11 t h Cir. 1999). 2 Threats to police and to

bystanders that occur at different times and in different places

have been viewed as two separate acts worthy of two separate

enhancements under the guidelines. Matos-Rodriguez , 188 F.3d at

1312 (11 th Cir. 1999). In Matos-Rodriguez

, the court applied both11

enhancements because the defendant not only gunned the engine of

his car, causing the police officer in front of the vehicle to push

off in self-defense, but also sped away running stop signs and

driving the wrong way on the street. I d. The court concluded that

“Matos’ conduct did not occur in a small area of only ‘two or three

car lengths,’ or in a brief e xpanse of time. Rather, Matos’

assault of [the police] was separated temporally and spatially from

his subsequent, reckless conduct in l eading police officers on a

high-speed chase. The court concluded that this was not a single,

uninterrupted event and that enhancements were not levied ‘solely

on the basis of the same conduct.’” Id. ; see also United States

v. Lowhorn

, No. 99-6641, 2001 WL 303359, at *3 (6 th Cir. Mar. 20,

2001) (unpublished)(holding that two adjustments for the

defendant’s conduct during a single car chase of accelerating

toward a police road block and ignoring stop signs and traffic

signals were permissible because they were “applied to addr ess

separate and distinct instances of harm caused by factually

distinct actions by the defendant”); United States v. Kadunc

, Nos.

99-3908 & 99-3909, 2001 WL 224002, at *5 (6 th Cir. Feb. 27, 2001)

(unpubl ished) (holding that enhancements under § 3A1.2(b) and §

3C1.2 are permissible as “the reckless endangerment of an

unidentified motorist at the r ed light is separate and distinct

[both temporally and geographically] from the vehicular assault on

the FBI agent”); United States v. Miner

, 108 F.3d 967, 970 (8 th Cir.

1997) (holding that “the district court properly increased Miner’s12

offense level for assaulting a police officer when he rammed his

car into a police roadblock, and for his chase-related conduct that

created a risk of serious injury to other drivers and

pedestrians”); United States v. Hernandez-Sandoval

, 211 F.3d 1115,

1118 (9 th Cir. 2000) (allowing a double enhancement under § 3A1.2(b)

and § 3C1.1 and holding that the defendant’s conduct of speeding

through streets and ramming police cars “were

. . . not only on

independent actions but [perpetrated] on distinct victims”).

On the other hand, threats to p olice and bystanders that

happened in the same or nearby place and at the same time are

viewed as one act deserving of only one enhancement. U nited States

v. Hayes

, 135 F.3d 435, 437 (6 th Cir. 1998). In H ayes

, 135 F.3d at

437, the Sixth Circuit concluded that punching a car’s accelerator

which resulted in inju ry to a law enforcement officer and

endangerment of a child riding in the car was a “single,

uninterrupted act.” “To suggest that the conduct that caused the

assault of [the officer] was different from that which placed the

y oung child in danger would be ‘an artificial and unrealistic

division of a single uninterrupted course of conduct into separate

events. ’” Id. (quoting United States v. Beckner

, 983 F.2d 1380,

1384 (6 th Cir. 1983)); cf. United States v. Cabral-Castillo

, 35 F.3d

182 (5 th Cir. 1994) (disallowing a double enhancement under § 3C1.2

and § 2D1.1(b)(1) for reckless endangerment during flight and use

of a deadly weapon (i.e., his car) when the defendant drove his car

at a high speed toward a border patrol agent).13

As in Matos-Rodriguez

, Gillyard’s acts of assault against a

policeman and reckless endangerment of others were temporally and

geographically sepa rate. Although both occurred during the same

car chase, both occurred at different times and in different

places. Although the car chase jeopardized all in the vicinity,

Gillyard’s threats of force upon police occurred on the interstate

and after his endangerment of the construction workers on the

median. Similarly, the police endangerment occurred before

Gillyard’s violations of reckless driving, speeding, disobeying

stop signs and sig nals, and illegally passing a school bus in a

different vicinity. Gillyard’s conduct is pertinently

disting uishable from that in H ayes and in Cabral-Castillo

. The

threat in Hayes , although involving two victims, clearly involved

one temporally and spatially unified action; the conduct in CabralCastillo involved only one threat to one victim. Because we find

that Gillyard’s conduct involved two temporally and geographically

sepa rate acts aimed at different victims, two enhancements were

appropriate and not prohibited by comment 1 to § 3C1.2.

III. Conclusion

For the foregoing reasons, th e district court’s denial of

Gillyard’s motion to suppress, its application of the s entencing

guidelines, and the defendant’s sentence are AFFIRMED.