PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4442

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ANTHONY JAMES GROSS,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Max O. Cogburn, Jr., District Judge. (1:21−cr−00046−MOC−WCM−1)

Argued: December 6, 2023 Decided: January 12, 2024

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Agee joined.

ARGUED: Melissa Susanne Baldwin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: John G. Baker, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 22-4442 Doc: 57 Filed: 01/12/2024 Pg: 2 of 16

WILKINSON, Circuit Judge:

Anthony Gross pleaded guilty to unlawful possession of a firearm after he shot at

and injured a man in his family’s driveway. The district court sentenced Gross to 63

months’ imprisonment and 3 years of supervised release. Gross challenges two aspects of

the court’s Sentencing Guidelines calculation: its application of a sentencing enhancement

for causing “serious bodily injury” and its cross-reference to the aggravated assault

guideline. At the core of Gross’s appeal is his contention that we should review the district

court’s finding of serious bodily injury de novo.

We disagree. To adopt the de novo standard here would turn law in a direction

inhospitable to factfinders. The district court’s finding that Gross caused serious bodily

injury was an application of the Guidelines that turned on a question of fact, and thus we

review it for clear error. In so doing, we find that the district court did not clearly err in its

Guidelines calculation and affirm its judgment.

I.

A.

On the morning of May 17, 2021, Anthony Gross, his parents, and his girlfriend

were at his family’s home in Marshall, North Carolina. Gross’s girlfriend told the others

that a man whom they had known for years, A.C., had sexually assaulted her the night

before. The family had been letting A.C. stay over while he went through a period of

addiction and homelessness, and nearly everything he owned was at their house. A.C.

himself, however, was nowhere to be found.

2 USCA4 Appeal: 22-4442 Doc: 57 Filed: 01/12/2024 Pg: 3 of 16

That soon changed. Around 10:00 am, A.C. drove up on a motorcycle, parked on

the family’s driveway, and pushed his helmet up onto his head. Gross’s mom saw A.C. in

the driveway and told him he needed to leave. A.C. retorted that he had a right to retrieve

his belongings. Gross’s father then came out to talk to A.C., who remained perched on his

bike, refusing to leave.

Gross walked out onto the porch, shirtless and holding a long gun. A.C. was

undeterred. He stayed on his bike and demanded that he be allowed to retri

Click Here to Read the rest of this document