United States v. Smith , 237 F. App'x 869 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5262
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DWAYNE E. SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (3:06-cr-00198-REP)
Submitted: July 31, 2007 Decided: August 13, 2007
Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Darryl A. Parker, Richmond, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Stephen W. Miller, Assistant
United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwayne E. Smith pled guilty to possession of a firearm by
a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was sentenced
to a term of 115 months imprisonment. Smith appeals his sentence,
contending that the district court clearly erred in making a
two-level adjustment for reckless endangerment during flight, U.S.
Sentencing Guidelines Manual § 3C1.2 (2005). We affirm.
Smith was stopped by Richmond, Virginia, Police Officer
Taylor Sensabaugh for speeding and improper lane change. After he
learned that Smith’s license was suspended and that warrants were
outstanding for “Dwayne Smith” and “D. Smith,” Sensabaugh asked
Smith to get out of his car. Smith complied, but rolled up the
windows and locked the car. Sensabaugh handcuffed him as part of
an investigative detention. By this time, two backup officers had
arrived. Sensabaugh told Smith he was going to search the car.
Smith immediately moved toward Sensabaugh and head butted him in
the face. The officers subdued Smith, and Sensabaugh then searched
Smith’s car and found a loaded .40 caliber semiautomatic pistol on
the floor on the driver’s side.
At sentencing, the district court determined over Smith’s
objection that an adjustment for reckless endangerment applied
because of Smith’s head butt to Officer Sensabaugh. The adjustment
applies “[i]f the defendant recklessly created a substantial risk
of death or serious bodily injury to another person in the course
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of fleeing from a law enforcement officer . . . .” The term
“reckless” is defined as conduct “in which the defendant was aware
of the risk created by his conduct and the risk was of such a
nature and degree that to disregard that risk constituted a gross
deviation from the standard of care that a reasonable person would
exercise in such a situation.” USSG §§ 3C1.2, comment. (n.2),
2A1.4, comment. (n.1). The term “during flight” encompasses
“preparation for flight” and includes conduct that “occurs in the
course of resisting arrest.” USSG § 3C1.2, comment. (n.3). The
court found that a head butt to the face delivered by a man who was
six feet three inches tall and weighed 210 pounds created a
substantial risk of serious injury to the victim’s nose or eyes, or
of extreme pain. The court also found that Smith was resisting
arrest and likely preparing to flee when he head butted Sensabaugh.
On appeal, Smith contends that application of the
enhancement was clearly erroneous because he made no attempt to
flee and because Sensabaugh was not seriously injured. He further
contends that, because he was handcuffed, he was incapable of
inflicting any serious injury or creating a substantial risk of
death. The plain language of the guideline and case law mandate
application of the enhancement when the defendant is resisting
arrest and his conduct creates a substantial risk of serious bodily
injury, even though no injury results. See, e.g., United States v.
Jimenez, 323 F.3d 320, 323-24 (5th Cir. 2003); United States v.
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Thomas, 294 F.3d 899, 906-07 (7th Cir. 2002); United States v.
Williams, 254 F.3d 44, 47-48 (2d Cir. 2001). There is no doubt
that Smith’s head butt created a substantial risk of serious bodily
injury to Sensabaugh. Moreover, § 3C1.2 has been applied when the
defendant’s conduct occurred while he was resisting arrest, even
though there was little hope of escape or indication that the
defendant was preparing to flee. See United States v. Campbell, 42
F.3d 1199, 1205-06 (9th Cir. 1994) (during twelve-hour standoff,
defendant said he would not be taken and would kill anyone who
tried to arrest him). Accordingly, we conclude that the district
court’s determination that the enhancement applied was not clearly
erroneous.
We therefore affirm the sentence imposed by 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
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