United States of America v. Jordan Laudermilt

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4487
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORDAN LAUDERMILT,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:11-cr-00010-FPS-JES-1)
Argued: March 18, 2014 Decided: June 19, 2014
Before KEENAN and FLOYD, Circuit Judges, and Max O. COGBURN,
Jr., United States District Judge for the Western District of
North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Cogburn wrote the
opinion, in which Judges Keenan and Floyd joined.
ARGUED: Stephen Douglas Herndon, Wheeling, West Virginia, for
Appellant. Randolph John Bernard, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee. ON BRIEF:
William J. Ihlenfeld, II, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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COGBURN, District Judge:
A jury convicted Jordan Laudermilt of violating 18 U.S.C.
§ 922(g)(1), which prohibits possession of a firearm by a
convicted felon. He was sentenced to 120 months’ imprisonment.
Laudermilt challenges his conviction, arguing that the district
court committed plain error when it admitted a 911 recording and
allowed unnecessarily cumulative testimony from responding
officers concerning that recording. He also contends that the
district court erred at sentencing in allowing a four-level
enhancement for use of a firearm by a prohibited person during
the course of the commission of another felony, and in
calculating his criminal history by including a criminal history
point for convictions that resulted from uncounseled pleas.1 For
the reasons that follow, we affirm.
I.
On appeal from a criminal conviction, we recite the
relevant facts in the light most favorable to the government.
United States v. Smith, 701 F.3d 1002, 1004 (4th Cir. 2012).
1 Although it is not altogether clear from Laudermilt’s
opening brief that he raised the issue of whether the 911 calls
should have been admitted, from our review of the government’s
brief, it appears that the government thinks that he did.
Therefore, for purposes of this opinion, we assume that he
raised the issue.

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A.
On February 27, 2011, six law enforcement officers
responded to a 911 call from Laudermilt’s residence in Ohio
County, West Virginia. The caller reported a domestic
disturbance involving Laudermilt and a firearm. When the
officers arrived at the scene, three witnesses reported to the
officers that Laudermilt was in the home with a firearm. The
officers observed Laudermilt come from inside the home to a
porch, where he verbally threatened his girlfriend, Shannalee
Kuri (Kuri), and the other two witnesses, Kuri’s brother and
father. After determining that he was not then in possession of
a firearm, the officers ordered the defendant to the ground,
handcuffed him, and conducted a protective sweep of the home,
where they located a rifle on a rack in a pantry near the
kitchen. At trial, Kuri testified that Laudermilt threatened to
shoot her with a gun, and Kuri’s father and brother testified
that Laudermilt told them that a coroner and “body bags” would
be needed.
B.
After Laudermilt was arrested, he was charged by a grand
jury with unlawful possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1); 924(a)(2). After the government
successfully appealed an adverse suppression order to this
court, see United States v. Laudermilt, 677 F.3d 605 (4th Cir.),

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cert. denied, Laudermilt v. United States, 133 S. Ct. 458
(2012), a jury found the defendant guilty of the offense charged
on February 6, 2013.
After the verdict, a presentence investigation report (PSR)
was prepared, which concluded that Laudermilt was subject to a
total offense level of 28, a criminal history category of VI,
and a resulting advisory guidelines sentencing range of 140 to
175 months’ imprisonment. Because the statutory maximum penalty
under § 922(g)(1) was 10 years, 120 months became the advisory
guidelines sentencing range. The district court concluded that
the proposed guidelines sentencing range was appropriate, denied
Laudermilt’s motion for a downward variance, and sentenced him
to 120 months’ imprisonment.
II.
Appellant presents essentially two issues on appeal: (1)
whether the district court committed plain error at trial in
admitting the 911 recording and by allowing the responding
officers to testify concerning the 911 call; and (2) whether the
district court erred at sentencing when it imposed a four-level
enhancement for use of a firearm by a prohibited person during
the course of the commission of another felony and when it
calculated his criminal history by including convictions that
resulted from uncounseled pleas.

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As Laudermilt failed to object at trial to these
evidentiary issues, we apply plain error analysis. United
States v. Thomas, 669 F.3d 421, 424 (4th Cir. 2012). To
establish plain error, appellant must show that: (1) there was
error; (2) the error was plain; and (3) the error affected
substantial rights. Id. Even if appellant can satisfy these
elements, error will not be found unless the error “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993)
(citation and internal quotation marks omitted).
As to his assignments of error at sentencing, Laudermilt
raised those objections with the trial court. We review a
district court's factual findings for clear error and questions
of law de novo. See United States v. Abu Ali, 528 F.3d 210, 261
(4th Cir. 2008). The determination whether a firearm was
possessed in connection with another felony offense under
U.S.S.G. § 2K2.1(B)(6) is a factual determination, to which we
apply the clearly erroneous standard. See United States v.
Jenkins, 566 F.3d 160, 163 (4th Cir. 2009); United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Determining
whether convictions were properly included in a defendant’s
criminal history score is a question of law, which we consider
de novo. See United States v. Allen, 446 F.3d 522, 527 (4th
Cir. 2006).

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A.
Laudermilt challenges the trial court’s admission of the
911 recording and the officers’ testimony concerning the
recording, contending that such evidence constituted
inadmissible hearsay under the Sixth Amendment’s Confrontation
Clause and was unfairly prejudicial under Federal Rule of
Evidence 403.
Taking the evidence presented at trial in a light most
favorable to the government, see Smith, 701 F.3d at 1004, the
evidence shows that the 911 caller was Laudermilt’s girlfriend,
Kuri, and that Kuri reported that Laudermilt was in possession
of a firearm and had threatened her with a firearm. Without
objection, police officers testified that they went to
Laudermilt’s residence in response to the 911 call.
Statements which are offered to explain why police officers
were present at a particular place are not hearsay. See United
States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (stating
that “an out of court statement is not hearsay if it is offered
for the limited purpose of explaining why a government
investigation was undertaken” (citations omitted)). Here, close
review of the trial transcript reveals that neither the 911
recording nor the testimony of the officers was offered for the
truth of its content, but was instead offered simply to explain

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why six police officers responded to a domestic disturbance
call.
The admission of the 911 call and the police officers’
statements regarding the 911 call also does not violate the
Confrontation Clause of the Sixth Amendment, which provides that
“[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36
(2004), the Supreme Court held that under the Confrontation
Clause, the government is prohibited from introducing
“testimonial” hearsay unless the witness who made the out-of-
court statement was unavailable and previously had been
subjected to cross-examination. Id. 541 U.S. at 68. The Court
later held that 911 tapes were patently non-testimonial when
made “under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency.” Davis v. Washington,
547 U.S. 813, 822 (2006).
Nothing in the record before this court even remotely
suggests that the primary purpose of the 911 call was anything
other than the caller attempting to secure emergency services
from the police. Under Davis, the contents of the 911 call were
clearly non-testimonial, as were the statements of the
dispatcher to which the police officers responded. Accordingly,

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the district court correctly admitted the 911 recording as well
as the background testimony of the responding officers.
Appellant also contends that the challenged testimony
violated Federal Rule of Evidence 403, arguing that the
probative value of the evidence was substantially outweighed by
the dangers of unfair prejudice and needless presentation of
cumulative evidence that resulted from multiple officers
restating that they responded to a call relating to the
defendant’s possession of a firearm, which was the central issue
in the case. On appeal, this court considers evidence under a
Rule 403 challenge “in a light most favorable to its proponent,
maximizing its probative value and minimizing its prejudicial
effect.” United States v. Simpson, 910 F.2d 154, 157 (4th Cir.
1990) (citation and internal quotation marks omitted).
Federal Rule of Evidence 403 provides that “[t]he court may
exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” We have held that
Rule 403 judgments are preeminently the province of
the trial courts. . . . . We will not upset such a
decision except under the most extraordinary of
circumstances, where a trial court's discretion has
been plainly abused.

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Love, 134 F.3d at 603 (alterations, citation, and internal
quotation marks omitted).
“Relevance and prejudice under Rules 401 and 403 are
determined in the context of the facts and arguments in a
particular case, and thus are generally not amenable to broad
per se rules.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S.
379, 387 (2008) (citation omitted). Further, it is not
appropriate for this court to conduct its own Rule 403 balancing
test. As the Supreme Court held in Mendelsohn, “questions of
relevance and prejudice are for the District Court to determine
in the first instance,” id., except when “‘the record permits
only one resolution of the factual issue.’” Id. at n.3 (quoting
Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982)). Finally,
as this court consistently has held, “[i]t is not an easy thing
to overturn a Rule 403 ruling on appeal.” United States v.
Udeozor, 515 F.3d 260, 264 (4th Cir. 2008). Where a party seeks
to introduce evidence that is probative, “the balance under Rule
403 should be struck in favor of admissibility, and evidence
should be excluded only sparingly.” United States v. Lentz, 524
F.3d 501, 525 (4th Cir. 2008) (quoting United States v. Aramony,
88 F.3d 1369, 1378 (4th Cir. 1996)).
Laudermilt’s failure to object at trial obviated the need
for the district court to conduct a Rule 403 inquiry on the

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record. To show plain error in admitting such evidence, it is
Laudermilt’s burden to demonstrate that the challenged evidence
was needlessly cumulative, outweighing its probative value.
Although several police officers testified that they responded
to a call regarding a firearm, we agree with the district court
that those statements and the 911 call provided context that was
relevant to explain to the jury why six officers appeared at
Laudermilt’s home on the night in question. Accordingly, we
cannot conclude that the probative value of that evidence was
“substantially outweighed by the danger of unfair
prejudice, . . . or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. Therefore, we decline to disturb the
district court’s admission of the evidence.
B.
We next consider whether the district court erred at
sentencing.
1.
Laudermilt first contends that the district court erred in
overruling an objection to a four-level enhancement under
U.S.S.G. § 2K2.1(b)(6)(B) for use of a firearm by a prohibited
person during the course of the commission of another felony, to
wit, the offense of wanton endangerment with a firearm under
West Virginia law.

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The determination whether a firearm was possessed in
connection with another felony offense under U.S.S.G.
§ 2K2.1(B)(6) is a factual determination. Jenkins, 566 F.3d at
163. We review a district court's factual findings for clear
error. Abu-Ali, 528 F.3d at 261.
Laudermilt argues that the conduct proven at trial did not
amount to wanton endangerment with a firearm, a felony under
West Virginia Code § 61-7-12, but was instead more akin to the
offense of brandishing a firearm, a misdemeanor under West
Virginia Code § 61-7-11. According to the Supreme Court of
Appeals of West Virginia, “brandishing as defined by West
Virginia Code § 61–7–11 is a lesser included offense within the
definition of wanton endangerment under West Virginia Code § 61–
7–12.” State v. Bell, 565 S.E.2d 430, 436 (W. Va. 2002)
(footnote omitted). West Virginia’s wanton endangerment statute
provides, in pertinent part, as follows:
Any person who wantonly performs any act with a
firearm which creates a substantial risk of death or
serious bodily injury to another shall be guilty of a
felony, . . . .
W. Va. Code § 61–7–12.
The Supreme Court of Appeals of West Virginia has
determined that discharge of a firearm is not an element of
wanton endangerment with a firearm under section 61-7-12, and
observed that this interpretation is consistent with that of

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other states that have addressed the issue with respect to
similar statutes. See State v. Hulbert, 544 S.E.2d 919, 930 (W.
Va. 2001). In making this determination, the court specifically
referenced as a “consistent case” Key v. Commonwealth, 840
S.W.2d 827, 829 (Ky. Ct. App. 1992), which recognized that the
pointing of a gun, whether loaded or unloaded, constitutes
conduct that creates a substantial danger of death or serious
injury. Hulbert, 544 S.E.2d at 930. Thus, not only can we find
no West Virginia case requiring the pointing of a loaded firearm
to establish the offense of wanton endangerment with a firearm,
but indications are strong from the highest court of West
Virginia that the offense is complete when one person wantonly
points a firearm at another person, regardless whether the
firearm is loaded.
Review of the record on appeal reveals that there was ample
evidence that Laudermilt wantonly pointed a firearm at Kuri, and
that in doing so, he endangered not only Kuri and her family,
but also responding police officers and other bystanders.
Accordingly, we find no error in the district court’s
application of a four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B) for use of a firearm by a prohibited person
during the course of the commission of another felony.

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2.
Finally, Laudermilt challenges the district court’s
assignment of an additional criminal history point based on two
2007 misdemeanor convictions in Meigs County, Ohio for operating
a motor vehicle under the influence and driving with a suspended
license. Laudermilt pleaded guilty to both offenses, which
resulted in suspended sentences, and he was not represented by
counsel during the plea hearing. We review the district court’s
calculation of Laudermilt’s criminal history de novo. See
Allen, 446 F.3d at 527.
Laudermilt contends that the district court improperly
counted the Ohio convictions because they were obtained in
violation of his Sixth Amendment right to counsel.2 In Alabama
v. Shelton, 535 U.S. 654 (2002), the Supreme Court held that
although the right to counsel is not violated where a defendant
receives a stand-alone sentence of probation, to be a valid
conviction, a suspended sentence that could end up in an actual
2 Review of the relevant portions of the Joint Appendix
reveals that in one waiver there is an initialed “Statement of
Miranda Rights,” immediately followed by a signed “Waiver of
Rights” stating that “I have read the above statement of my
rights and I understand each of those rights, and having these
rights in mind I waive them and willingly make a statement.”
J.A. at 463. Although not identical, the second waiver contains
similar substantive provisions. Id. at 464. Arguably, the
waivers contained in the record are Fifth Amendment waivers, not
Sixth Amendment waivers, as they make no mention of appellant’s
right to the assistance of counsel at trial.

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deprivation of liberty is not validly imposed unless the
defendant receives the assistance of counsel or executes a
knowing waiver of counsel. Id. at 674.
This court need not reach the question whether assigning an
additional criminal history point was appropriate. Even if the
relevant convictions were excluded from the calculation of
Laudermilt’s criminal history, Laudermilt concedes that he would
remain in the same criminal history category and that his
advisory guidelines sentencing range would not change. The
Supreme Court and this court have long held that a sentencing
error is subject to harmless error analysis, and that remand is
not required if “the error did not affect the district court's
selection of the sentence imposed.” Williams v. United States,
503 U.S. 193, 203 (1992) (citation omitted); see also United
States v. McCrary, 887 F.2d 485, 489 (4th Cir. 1989) (per
curiam) (noting that error in calculating criminal history
category warrants remand only when possible sentencing ranges
are different), overruled on other grounds by United States v.
Underwood, 970 F.2d 1336 (4th Cir. 1992). Based on Laudermilt’s
concession and our review of the record as a whole, we conclude
that any error was harmless as it did not impact the district
court’s selection of the sentence.
Laudermilt argues that remand nevertheless is appropriate
due to the collateral consequences of including an additional

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criminal history point. He contends that inclusion of the
additional criminal history point resulted in a less favorable
custody classification within the Bureau of Prisons (BOP) and
caused him to be housed in a federal penitentiary rather than a
less restrictive federal correctional institution.
An inmate has a right not to have erroneous information in
a PSR used to deny him fair consideration for favorable prison
programs. Monroe v. Thigpen, 932 F.2d 1437 (11th Cir. 1991).
We also have no doubt that criminal history points are
considered by the BOP in determining an inmate’s security level
and custody classification. See Brown v. LaManna, 2008 WL
5062180, *2 (D.S.C. Nov. 19, 2008) (unpublished decision)
(finding that BOP Program Statement 5100.08 uses points
determined in the PSR as part of the “score” used in inmate
classification). On direct review, however, this court is
limited to determining whether the alleged error impacts the
“selection of the sentence imposed” under Williams.
Other post-judgment consequences, while certainly important
to Laudermilt, are matters which may or may not occur, may
require factual development and administrative exhaustion within
the BOP, and may, depending on the harm alleged, find other
remedies, such as those available under 28 U.S.C. § 2255, 28
U.S.C. § 2241, or Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971). See Preiser v. Rodriguez, 411 U.S.

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475, 484 (1973) (stating that the basic fact or duration of
incarceration are the “essence of habeas”); Bunn v. Conley, 309
F.3d 1002, 1007 (7th Cir. 2002) (observing that habeas corpus is
the appropriate remedy where the inmate seeks a “quantum change”
in custody level) (citation and internal quotation marks
omitted); Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002)
(holding that “when the challenge is to a condition of
confinement such that a finding in plaintiff's favor would not
alter his sentence or undo his conviction, [a civil rights
action] is appropriate”); Paschal v. Bauknecht, 2007 WL 4568979,
*1 (D.S.C. Dec. 20, 2007) (unpublished decision) (noting that
under § 2241 “an inmate can challenge the manner in which the
BOP carries out his sentence”). Under Williams, supra,
appellant’s remedy is not to be found on direct review as this
court’s inquiry ends when we are satisfied that any alleged
error in assigning criminal history points had no impact on the
district court’s selection of a sentence.
III.
For the reasons given, we affirm the conviction and the
sentence imposed by the district court.
AFFIRMED.

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