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    United States v. Richard Jackie Flood, A/K/A Jackie Fludd, A/K/A Jackie Flood, 25 F.3d 1041, 4th Cir. (1994)

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    1) Richard Flood was convicted of being a felon in possession of a firearm. The district court departed upward from the mandatory minimum sentence of 180 months to 300 months based on a finding that a death resulted from Flood's offense. 2) At the sentencing hearing, a witness testified that he saw Flood shoot the victim during a fight. Another witness said that Flood did not shoot the victim. 3) The district court found the witness who said Flood was the shooter to be more credible. It found that Flood had purposely sought out the victim to exact revenge and shot the victim during the ensuing fight. The appellate court affirmed, finding the district court's factual findings were not clearly erroneous.

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    United States v. Richard Jackie Flood, A/K/A Jackie Fludd, A/K/A Jackie Flood, 25 F.3d 1041, 4th Cir. (1994)

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    1) Richard Flood was convicted of being a felon in possession of a firearm. The district court departed upward from the mandatory minimum sentence of 180 months to 300 months based on a finding that a death resulted from Flood's offense. 2) At the sentencing hearing, a witness testified that he saw Flood shoot the victim during a fight. Another witness said that Flood did not shoot the victim. 3) The district court found the witness who said Flood was the shooter to be more credible. It found that Flood had purposely sought out the victim to exact revenge and shot the victim during the ensuing fight. The appellate court affirmed, finding the district court's factual findings were not clearly erroneous.

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    Filed: 1994-05-26 Precedential Status: Precedential Citations: 25 F.3d 1041 Docket: 92-5821

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    1) Richard Flood was convicted of being a felon in possession of a firearm. The district court departed upward from the mandatory minimum sentence of 180 months to 300 months based on a finding that a death resulted from Flood's offense. 2) At the sentencing hearing, a witness testified that he saw Flood shoot the victim during a fight. Another witness said that Flood did not shoot the victim. 3) The district court found the witness who said Flood was the shooter to be more credible. It found that Flood had purposely sought out the victim to exact revenge and shot the victim during the ensuing fight. The appellate court affirmed, finding the district court's factual findings were not clearly erroneous.

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    United States v. Richard Jackie Flood, A/K/A Jackie Fludd, A/K/A Jackie Flood, 25 F.3d 1041, 4th Cir. (1994)

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    Scribd Government Docs
    1) Richard Flood was convicted of being a felon in possession of a firearm. The district court departed upward from the mandatory minimum sentence of 180 months to 300 months based on a finding that a death resulted from Flood's offense. 2) At the sentencing hearing, a witness testified that he saw Flood shoot the victim during a fight. Another witness said that Flood did not shoot the victim. 3) The district court found the witness who said Flood was the shooter to be more credible. It found that Flood had purposely sought out the victim to exact revenge and shot the victim during the ensuing fight. The appellate court affirmed, finding the district court's factual findings were not clearly erroneous.

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    25 F.

    3d 1041
    NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished
    dispositions is disfavored except for establishing res judicata, estoppel, or the law
    of the case and requires service of copies of cited unpublished dispositions of the
    Fourth Circuit.

    UNITED STATES of America, Plaintiff-Appellee,


    v.
    Richard Jackie FLOOD, a/k/a Jackie Fludd, a/k/a Jackie
    Flood, Defendant-Appellant.
    No. 92-5821.

    United States Court of Appeals, Fourth Circuit.


    Submitted: May 17, 1993.
    Decided: May 26, 1994.

    Appeal from the United States District Court for the District of South
    Carolina, at Columbia. Charles E. Simons, Jr., Senior District Judge. (CR91-406-3)
    Langdon D. Long, Assistant Federal Public Defender, Columbia, South
    Carolina, for Appellant.
    John S. Simmons, United States Attorney, Eric Wm. Ruschky, Assistant
    United States Attorney, Columbia, South Carolina, for Appellee.
    D.S.C.
    AFFIRMED.
    Before WIDENER, WILKINS, and NIEMEYER, Circuit Judges.
    OPINION
    PER CURIAM:

    Richard Jackie Flood was convicted of being a felon in possession of a firearm,


    18 U.S.C.A. Secs. 922(g), 924(e) (West Supp.1992). In sentencing him, the
    district court departed upward from the mandatory minimum sentence of 180

    months to 300 months on the ground that a death resulted from his offense.*
    United States Sentencing Commission, Guidelines Manual, Sec. 2K2.1
    (Nov.1989). He appeals this sentence, contending that there was insufficient
    factual support for the departure. We affirm.
    2

    Our review of a departure generally consists of a three-part test for


    reasonableness. United States v. Hummer, 916 F.2d 186, 192 (4th Cir.1990),
    cert. denied, 59 U.S.L.W. 3702 (U.S.1991). We review de novo the district
    court's determination that a relevant factor was not adequately considered by
    the Sentencing Commission. We review the factual finding that the factor is
    present in the case under the clearly erroneous standard. Last, we review for
    abuse of discretion the decision that the factor is significant enough to justify a
    departure, and the extent of the departure.

    Flood does not dispute that the district court can depart, when circumstances
    warrant it, on the ground that the crime caused a death. He does argue that
    there was insufficient evidence for the district court to find that he shot the
    victim.

    Six government witnesses testified at the sentencing hearing. Elijah Smith


    testified that he and the victim, Tony Mathis, were attacked from behind by
    Flood and Edward German, also known as Germany or Gemini, as they stood
    in the street talking to several women on the porch of a house. Smith testified
    that in the course of the ensuing fight, he saw Flood shoot Mathis. German
    testified that he had sought out Smith because he was angry at Smith's treatment
    of Tanya Weathers, his girlfriend and Smith's former girlfriend. He said (to the
    government's surprise) that he had shot Mathis himself, and that Flood had not
    been involved. The remaining government witnesses had not seen the shooting,
    but had been nearby or involved in its aftermath. Geraldine Anderson related
    that Tanya Weathers called her right after the shooting and told her that Flood
    had shot Mathis to protect German. Anderson had also visited German in the
    hospital; he told her Flood had saved his life by shooting Mathis and that he
    planned to take the blame because he owed Flood his life.

    Police witnesses presented statements given the night of the murder by Tanya
    Weathers (who had since disappeared) and Andrena Wise (who had since been
    killed in an apparently unrelated homicide). Weathers told police that German
    called her right after the fight and said that Flood had shot Mathis in the back.
    She had seen Flood with a gun late that afternoon. Wise also talked to Weathers
    that night and was told that Flood did the shooting. German had given a
    statement to police a few days later in which he said he was on the ground when
    Mathis was shot; he did not identify the killer. Ballistic evidence showed that

    the fatal bullet came from a .32 caliber pistol, but was inconclusive whether it
    came from the .32 caliber revolver found on Flood when he was arrested early
    the following morning.
    6

    One witness testified for Flood. She had seen the shooting but could not
    identify the person holding the gun. Flood also made a statement on his own
    behalf in which he denied being involved.

    The district court found as facts that German and Flood had purposely sought
    out Smith to exact some sort of revenge for his treatment of Weathers, that in
    the ensuing fight German was hit in the face with a small dumbbell, and that
    Flood had shot Mathis. The court found Smith a more credible witness than
    German. On this record, we cannot say that its factual findings are clearly
    erroneous.

    We therefore affirm the judgment of the district court. 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

    Flood was charged with first degree murder in state court following the incident
    which was the basis for the departure. Charges were dropped after Flood was
    indicted on federal firearms charges

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