PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4235

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ERIC HENDERSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Kenneth D. Bell, District Judge. (3:20-cr-00288-KDB-DSC-1)

Argued: October 26, 2023 Decided: December 13, 2023

Before GREGORY and AGEE, Circuit Judges, and Robert S. BALLOU, United States District Judge for the Western District of Virginia, sitting by designation.

Reversed by published opinion. Judge Gregory wrote the opinion, in which Judge Agee and Judge Ballou joined.

ARGUED: Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: William T. Stetzer, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 21-4235 Doc: 41 Filed: 12/13/2023 Pg: 2 of 9

GREGORY, Circuit Judge:

Eric Henderson appeals his sentence, which was imposed after he pleaded guilty to

one count of possession of a firearm by a person previously convicted of a felony, in violation

of 18 U.S.C. § 922(g)(1). He contends that the district court erred in two ways when it

calculated his sentencing guidelines range. First, it applied a four-level enhancement for

possession of a firearm in connection with another felony offense pursuant to

§ 2K2.1(b)(6)(B) of the United States Sentencing Guidelines. Second, it applied a two-level

enhancement for reckless endangerment during flight pursuant to § 3C1.2 of the Sentencing

Guidelines. For the reasons that follow, we reverse and remand for resentencing.

I.

On June 5, 2020, police officers responded to a call in Charlotte, North Carolina, after

the caller told them that Henderson was armed. J.A. 121. When officers arrived, they saw

that Henderson was armed with a rifle and observed him shove a woman to the ground and

point the firearm directly at her. Id. When law enforcement confronted Henderson, he fled.

Id. Henderson was subsequently located hiding behind a shed a short distance away. Id.

Officers later located a rifle hidden under a vehicle parked on the roadway. Id. At the time,

Henderson was subject to an active Domestic Violence Protection Order (“DVPO”). Id.

On August 18, 2020, Henderson was charged in the United States District Court for the

Western District of North Carolina with one count of being a felon in possession of a firearm.

J.A. 24–36. He pleaded guilty to the charge without a written plea agreement. Id. During his

guilty plea hearing, Henderson acknowledged that he had read and agreed with a factual basis

2 USCA4 Appeal: 21-4235 Doc: 41 Filed: 12/13/2023 Pg: 3 of 9

document filed by the government. The document outlined how Henderson’s conduct satisfied

the elements of § 922(g)(1), establishing the basis for his guilty plea. J.A. 32.

In preparation for Henderson’s sentencing, a probation officer prepared a draft

Presentence Investigation Report (“PSR”). J.A. 85. The draft PSR calculated Henderson’s

total offense level to be seventeen, based on the following factors: (1) a base level of

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