United States of America v. Marchello Jimmy Loverson

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0011n.06
Filed: October 6, 2004
No. 03-6120
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCHELLO JIMMY LOVERSON,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE
Before: KENNEDY, DAUGHTREY, and COOK, Circuit Judges.
PER CURIAM. The defendant, Marchello Loverson, appeals the sentence that he
received as the result of the guilty plea he entered to car-jacking and use of a firearm
during a crime of violence. He alleges that the district court erred in applying a four-level
enhancement under §2B3.1(b)(4)(A), which requires such an enhancement when the
proof shows that a defendant “abducted [someone] to facilitate the commission of the
offense or to facilitate escape.” He argued at the sentencing hearing that he did not know
that there were two children in the back seat of the car he commandeered until he had
driven away from the convenience market where he had pulled the driver out of the car and
shot the children’s mother when she tried to rescue the children. However, at the earlier

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guilty plea proceeding, the defendant admitted the existence of the following facts, which
were recited into the record by the government attorney in order to establish a basis for the
defendant’s plea:
In this case, we would have shown, Your Honor, that on March 2nd,
2001, Mr. Loverson carjacked a car from Angel Henry and David Payne at
the Circle K Store on Shelby Drive here in Memphis. The proof would have
shown that David Payne arrived at the Circle K Store driving his Buick
LeSabre automobile. Angel Henry, his girlfriend, was in the front seat. Ms.
Henry’s two children, Dante, and DeAngelo, ages three and one, were in the
back seat. Mr. Payne pulled up and parked his vehicle by the gas pump.
Ms. Henry got out of the passenger seat and went inside the Circle K to use
the ATM machine. Mr. Payne briefly got out of the car, washed the windows
off, and got back in the driver’s seat, and was sitting there waiting for Ms.
Henry. Two children were in the back seat.
While Mr. Payne was sitting there waiting, the defendant, Mr.
Loverson, came up to the door, pulled the door open, and pulled Mr. Payne
out. Mr. Payne then began struggling with Mr. Loverson. After they
struggled for a bit, Mr. Loverson produced a pistol and fired a shot at fairly
close range at James Payne, missing James Payne. Mr. Payne then turned
to run. As he was running, he heard another shot, which he felt was aimed
at him. At this point, Angel Henry was in the store, looked out. She saw Mr.
Loverson about to get in the Buick LeSabre and drive off. Saw her kids were
there, she started to run toward the Buick LeSabre, and she was yelling, “My
kid,” “My kids.” As she was running toward the Buick LeSabre, Mr. Loverson
pointed the pistol at her, fired a shot at her, hitting her in the leg and
wounding her. Ms. Henry went down on the parking lot of the Circle K
wounded in the leg.
Mr. Loverson then proceeded to drive off in the Buick LeSabre, and
he drove out onto Shelby Drive. Mr. Payne, who had run around the back
of the Circle K, at that time saw a woman in another car following Mr.
Loverson as the get-away driver.
The proof would have shown that the children were dropped off
unharmed about several blocks away at a Kentucky Fried chicken store
about a mile away. They were recovered unharmed on the parking lot of a
Circuit City store.

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Under these circumstances, we think there can be no doubt that the defendant knew
that the children were in the car and nevertheless left the scene intentionally, without taking
time to remove them, in order to facilitate both the commission of the offense and his
escape. We therefore find no error in the district court’s application of the sentencing
guideline at issue in this appeal.
AFFIRMED.

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