UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4038

TRAVIS RAYMARK GRATE,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Florence.

C. Weston Houck, Senior District Judge.

(CR-02-448)

Submitted: October 31, 2003

Decided: November 21, 2003

Before WILLIAMS, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

William F. Nettles, IV, Assistant Federal Public Defender, Florence,

South Carolina, for Appellant. Rose Mary Parham, Assistant United

States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Travis Raymark Grate appeals from his convictions pursuant to a

plea agreement to possession with intent to distribute at least five

grams and less than 500 grams of cocaine base, in violation of 21

U.S.C. § 841(a) (2000), and possession of a firearm during and in

relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)

(2000). Grate was sentenced to consecutive terms of seventy and

eighty-four months’ imprisonment. 

Counsel filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), in which he raised two issues: (1) whether the magistrate

judge complied with Rule 11 when he accepted Grate’s guilty plea;

and (2) whether the district court erroneously enhanced Grate’s sentence pursuant to U.S.S.G. § 3C1.2 for reckless endangerment during

flight. Grate filed a supplemental brief raising two additional issues

for this Court’s consideration. The first is whether the district court

erred in enhancing Grate’s sentence from five to seven years, where

there was no evidence that Grate brandished the firearm in relation to

a drug trafficking crime. The second is whether the district court erred

in enhancing Grate’s sentence twice for the same firearm, thereby

engaging in impermissible double counting. 

After reviewing the transcript of the plea proceeding, we conclude

that the magistrate judge fully complied with the requirements of Rule

11 in accepting Grate’s guilty plea. 

Grate’s presentence report recommended enhancing his guideline

range under U.S. Sentencing Guidelines Manual § 3C1.2 (2002) for

reckless endangerment during flight. Our review is de novo where the

facts are undisputed. United States v. Butner, 277 F.3d 481, 488 (4th

Cir.), cert. denied, 122 S. Ct. 2610 (2002). The enhancement applies

if the defendant recklessly created a substantial risk of death or serious bodily injury to another while fleeing from a law enforcement

officer. U.S.S.G. § 3C1.2. A defendant’s conduct is reckless when he

"was aware of the risk created by his conduct and the risk was of such

a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exer2 UNITED STATES v. GRATE
cise in such a situation." See U.S.S.G. § 3C1.2, comment. (n.2);

§ 2A1.4, comment. (n.1). Running through a crowded parking lot, as

Grate did, while holding a firearm and causing officers to draw their

weapons is behavior demonstrating this kind of disregard for public

safety and the safety of the officers. Likewise, discarding a weapon

in a heavily trafficked area is also conduct creating a risk of serious

bodily injury. 

Grate also raises two issues in his pro se supplemental brief. First,

he contends that he was improperly convicted under § 924(c) because

there was insufficient evidence from which to conclude that he "brandished" the firearm in relation to the drug offense. He contends that

because he never admitted at the plea hearing to brandishing his

weapon or pointing his weapon at an officer, he has been improperly

sentenced. 

Grate did not raise this issue below, therefore review is for plain

error. See United States v. Olano, 507 U.S. 725, 732 (1993). We find

no plain error where Grate pled guilty to the indictment, which

charged him with brandishing the firearm, and admitted at his plea

colloquy to brandishing the firearm. Grate’s guilty plea, the validity

of which he has not challenged, precludes a challenge to the sufficiency of the evidence. See United States v. Willis, 992 F.2d 489, 490-

91 (4th Cir. 1993). 

Grate’s second contention in his supplemental brief states that the

district court impermissibly double counted because the district court

both enhanced his sentence under U.S.S.G. § 3C1.2 for reckless

endangerment and imposed the statutory mandatory minimum under

§ 924(c). The Guidelines do not prohibit imposition of a consecutive

sentence under § 924(c) after enhancing the offense level on the

underlying offense for reckless endangerment. See United States v.

Studifin, 240 F.3d 415, 419-20 (4th Cir. 2001). Therefore, we affirm

Grate’s convictions and sentence. 

In accordance with Anders, we have reviewed the entire record in

this case and have found no meritorious issues for appeal. We therefore affirm Grate’s conviction and sentence. This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review. If the client

UNITED STATES v. GRATE 3
requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave

to withdraw from representation. Counsel’s motion must state that a

copy thereof was served on the client. 

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

4 UNITED STATES v. GRATE