US v. Gross: Gross, a felon, possessed a rifle which he used to shoot at AC, who had been staying at the home Gross shared with his parents and girlfriend. The shot didn’t hit AC, but it hit the ground near him and “three metal fragments” hit him near the right eye. AC ran away and a neighbor called 911. AC said he felt pain while waiting for paramedics arrived and, while initially telling them he was not in pain, told doctors at the hospital he was and received pain killers. AC left the hospital shortly thereafter, but continued to have pain (“probably one of the worst pains I have had”) and experienced “chronic sinus problems” since the incident. At sentencing, the main issue was whether AC’s injury was sufficient to be “serious bodily injury” under the Guidelines (rather than lesser “bodily injury”), a determination that would lead both to an enhancement and a cross-reference that would increase Gross’ advisory Guideline range. The district court applied the enhancement and sentenced Gross to the bottom of the resulting Guideline range.
On appeal, the Fourth Circuit affirmed Gross’ sentence. The court’s main focus was on what the proper standard of review to apply was in this case. Gross argued for a de novo standard, because the application of the enhancement turned on a legal interpretation of the Guideline’s terms, while the Government argued for a clearly erroneous standard, as the district court’s decision was primarily resolving a question of fact. The court agreed with the Government, noting that had the district court applied the wrong legal standard when resolving Gross’ objection that would have been a legal question subject to de novo review, but that the district court applied the correct standard. The application itself was not clearly erroneous, even though Gross could muster contrary facts that might support his position.
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