United States v. Richburg , 109 F. App'x 558 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4010
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES ELTON RICHBURG,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-03-122)
Submitted: August 27, 2004 Decided: September 16, 2004
Before WIDENER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Sherri Royall
Alspaugh, Assistant Federal Public Defender, Raleigh, North
Carolina, for Appellant. Frank D. Whitney, United States Attorney,
Anne M. Hayes, Christine Witcover Dean, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Elton Richburg 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 108 months imprisonment. Richburg contends
on appeal that the district court clearly erred in finding that, in
his attempt to avoid arrest, he assaulted the arresting officer in
a manner that created a substantial risk of serious bodily injury.
U.S. Sentencing Guidelines Manual § 3A1.2(b)(1) (2003). We affirm.
During a traffic stop of the car in which Richburg, a
convicted felon, was a passenger, the police officer learned that
there was an outstanding probation violation warrant for Richburg.
The officer told Richburg that he was under arrest, noticed a gun
in Richburg’s waistband, and attempted to handcuff him. Richburg
turned around and tried to punch the officer in the face, but
missed. The two struggled and Richburg’s gun fell to the ground.
The struggle continued, with the officer punching Richburg in the
face and spraying him in the face with cap-stun, until other
officers arrived. At Richburg’s sentencing, over his objection,
the district court determined that Richburg had assaulted the
officer in a manner that created a substantial risk of serious
bodily injury and gave him a three-level adjustment under
§ 3A1.2(b)(1).
The district court’s factual finding that Richburg
assaulted the officer in a manner that created a risk of serious
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bodily injury is reviewed for clear error. United States v.
Harrison, 272 F.3d 220, 223 (4th Cir. 2001), cert. denied, 537 U.S.
839 (2002). Richburg argues that his conduct did not create a
substantial risk of serious bodily injury. He attempts to
distinguish his case from Harrison, where the defendant’s
accomplice shot at pursuing police officers,* id. at 222, and from
United States v. Sloley, 19 F.3d 149, 154 (4th Cir. 1994), in
which the defendant resisted arrest by struggling with the officer
and grabbing his gun.
Application of § 3A1.2(b) usually is based on some actual
injury to the law enforcement officer or a clear attempt by the
defendant to inflict serious injury, as in Harrison and Sloley.
See, e.g., United States v. Zaragoza-Fernandez, 217 F.3d 31, 33
(1st Cir. 2000) (defendant drove his car at military policeman who
suffered glancing blow on knee as he jumped clear); United
States v. Ashley, 141 F.3d 63, 69 (2d Cir. 1998) (minor injuries
suffered by four officers in subduing defendant). However,
circumstances alone that presented a risk of injury have been held
to warrant the adjustment. See United States v. Waldman, 310 F.3d
1074, 1079 (8th Cir. 2002) (defendant pointed loaded gun at back of
officer’s head and threatened to kill him); United States v. Bowie,
*
In Harrison, the appellant received adjustments under
§ 3A1.2(b) and § 3C1.2 (Reckless Endangerment during Flight). He
did not contest the applicability of § 3A1.2(b), but argued that
USSG § 3C1.2 alone should have been applied, and that applying both
sections constituted double counting. 272 F.3d at 223.
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198 F.3d 905, 913 (D.C. Cir. 1999) (defendant’s attempt to pull gun
from waistband as officer tried to handcuff him posed risk of
serious bodily injury).
Clear error occurs when the court, upon reviewing the
record as a whole, is left with the “‘definite and firm conviction
that a mistake has been committed.’” United States v. Powell, 124
F.3d 655, 667 (5th Cir. 1997) (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948)). Although the
circumstances in this case are less egregious than those in other
decisions, we are satisfied that a circumstance where, as here, an
armed officer has a physical fight with an armed suspect he is
attempting to arrest, presents a risk of serious bodily injury. We
cannot say that the district court clearly erred in finding that
the adjustment was warranted.
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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