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The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-1085

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Arkansas.

Earl Anthony Boyd, *

* [UNPUBLISHED]

Appellant. *

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Submitted: November 14, 2005

Filed: December 30, 2005

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Before ARNOLD, BEAM, and RILEY, Circuit Judges. 

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PER CURIAM.

Earl Anthony Boyd (Boyd) appeals the sentence imposed by the district court1

following his plea of guilty to one count of being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g). We affirm.

Boyd’s sentencing occurred after the Supreme Court’s decision in Blakely v.

Washington, 542 U.S. 296 (2004), but before the Supreme Court’s decision in United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). At sentencing, Boyd argued
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the Guidelines were unconstitutional in light of Blakely, thereby preserving an appeal

of his sentence under Booker. See United States v. Pirani, 406 F.3d 543, 550 (8th

Cir. 2005) (en banc).

At the sentencing hearing, the government sought enhancements for

(1) possessing a firearm in connection with a felony offense (specifically, the

Arkansas state felony of aggravated assault, see Ark. Code. Ann. § 5-13-204),

pursuant to U.S.S.G. § 2K2.1(b)(5); and (2) reckless endangerment during flight,

pursuant to U.S.S.G. § 3C1.2. In support of the second enhancement, the government

presented testimony that Boyd, while fleeing from police with a gun, pushed a

bystander who was holding her infant child and then tried to hide the gun in the

bystander’s stroller. The district court denied the first requested enhancement, but

found Boyd had acted recklessly and imposed the second enhancement. The court

stated it was not bound by the Guidelines but considered them advisory, and

sentenced Boyd to 46 months’ imprisonment, the top of the 37- to 46-month range

under the Guidelines.

Boyd appeals, arguing the district court violated his Sixth Amendment right

under Blakely and Booker by finding he recklessly endangered others during flight

rather than submitting these facts to a jury for determination. We have held there is

no Booker error if the district court calculates the proper Guidelines sentencing range,

treats the Guidelines as advisory, and imposes a reasonable sentence. Pirani, 406

F.3d at 551. In such a case, we review de novo a district court’s application of the

Guidelines and review its factual findings for clear error. United States v. Mathijssen,

406 F.3d 496, 498 (8th Cir. 2005).

In this case, the district court’s findings did not violate Boyd’s Sixth

Amendment right because the district court treated the Guidelines as advisory rather

than mandatory. Furthermore, the district court’s findings are not clearly erroneous.

Taken as a whole, the testimony by the government’s witnesses, including the
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arresting officer who observed Boyd’s flight, and the bystander who was the victim

of Boyd’s actions, established Boyd recklessly endangered a woman and her infant

child while fleeing from police.

Finally, Boyd claims his sentence is unreasonable. Reviewing the record in

light of the sentencing factors in 18 U.S.C. § 3553(a), because the district court

correctly applied the Guidelines in deciding Boyd’s sentencing range, we conclude

his sentence is reasonable. See United States v. Hadash, 408 F.3d 1080, 1082 (8th

Cir. 2005).

For the foregoing reasons, we affirm Boyd’s sentence.

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