UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4377
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HENRY JEROME COOPER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Jackson L. Kiser, Senior
District Judge. (CR-03-106)
Argued: May 25, 2006 Decided: June 20, 2006
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Randy Virlin Cargill, MAGEE, FOSTER, GOLDSTEIN & SAYERS,
P.C., Roanoke, Virginia, for Appellant. Ronald Andrew Bassford,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: John L.
Brownlee, United States Attorney, Jill Lowell, Third Year Practice
Law Student, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Henry Jerome Cooper pled guilty to possession of a firearm by
a convicted felon in violation of 18 U.S.C. § 922(g)(1) (2000).
The district court sentenced Cooper to 37 months of imprisonment.
Cooper now appeals his sentence.
Cooper primarily contends that the district court improperly
enhanced his sentence for assaulting a law enforcement officer
during the course of immediate flight “in a manner creating a
substantial risk of serious bodily injury” under U.S.S.G. §
3A1.2(b) (2003). We review the district court’s legal
determinations under the sentencing guidelines de novo and will not
disturb its factual findings absent clear error. United States v.
Harrison, 272 F.3d 220, 223 (4th Cir. 2001). Application Note 4(A)
to § 3A1.2 provides that this adjustment “applies in circumstances
tantamount to aggravated assault . . . against a law enforcement
officer, committed in the course of, or in immediate flight
following, another offense.” Further, “its applicability is
limited to assaultive conduct against such official victims that is
sufficiently serious to create at least a ‘substantial risk of
serious bodily injury.’” Id. Application Note 4(B) provides that
“substantial risk of serious bodily injury” “includes any more
serious injury that was risked, as well as actual serious bodily
injury . . . if it occurs.”
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While we recognize that a simple assault on a law enforcement
officer during the course of flight is insufficient to warrant the
§ 3A1.2(b) enhancement, we find that the facts of this case created
a substantial risk of serious bodily injury to the law enforcement
officer. The facts established that Cooper had a loaded nine
millimeter firearm in his hand when he exited the vehicle, the
firearm fell to the ground during a brief struggle with a law
enforcement officer, and Cooper struck the officer in the face
twice during the incident. When another officer retrieved the
weapon and attempted to eject the magazine, it discharged into the
ground. Therefore, we hold that the district court did not err in
enhancing Cooper’s sentence under § 3A1.2(b).
Cooper further contends that he is entitled to resentencing
because the district court plainly erred by improperly finding
facts at sentencing and applying the guidelines under a mandatory
regime. See United States v. Booker, 543 U.S. 220, 267-68 (2005).
At oral argument, Cooper conceded that he had failed to establish
a Sixth Amendment error because the district court did not impose
a sentence exceeding the maximum allowed based only on the facts he
admitted. See United States v. Evans, 416 F.3d 298, 300-01 (4th
Cir. 2005). Inasmuch as Cooper argues that the district court
plainly erred in applying the guidelines as mandatory, the record
provides no nonspeculative basis for us to conclude that the
treatment of the guidelines as mandatory affected the district
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court’s selection of the sentence imposed. See United States v.
White, 405 F.3d 208, 223 (4th Cir. 2005). Therefore, Cooper is not
entitled to be resentenced under Booker. See White, 405 F.3d at
223-24.
Accordingly, we affirm the decision of the district court.
AFFIRMED
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