PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4455
MICHAEL J. HAMPTON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Cameron McGowan Currie, District Judge.
(3:07-cr-01517-CMC-1)
Argued: October 29, 2010
Decided: December 16, 2010
Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the opin-
ion, in which Judge Niemeyer and Judge Wynn joined.
COUNSEL
ARGUED: Raymond John Rigat, Washington, D.C., for
Appellant. Robert Frank Daley, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee. ON BRIEF: Kevin F. McDonald, Acting
United States Attorney, Stacey D. Haynes, Assistant United
2 UNITED STATES v. HAMPTON
States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
OPINION
DAVIS, Circuit Judge:
A federal grand jury indicted Michael Hampton on one
count of being a felon in possession of a firearm and ammuni-
tion, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The charge arose from the seizure of a pistol from Hampton’s
pants pocket by law enforcement officers who effected a traf-
fic stop of a vehicle in which Hampton had been a back seat
passenger. Hampton moved to suppress the firearm and, after
a suppression hearing, the district court denied the motion.
Hampton was convicted by a jury after a two-day trial. The
district court imposed a sentence of 300 months incarceration.
Upon this timely appeal, Hampton challenges both his con-
viction and his sentence. First, he contends that the district
court erred in denying his motion to suppress, insisting that
the officer violated his Fourth Amendment right to be free
from unreasonable seizures when he ordered Hampton to get
out of the vehicle. Second, he contends that the district court
erred in calculating his advisory sentencing guidelines range
in three ways: (1) by applying a six-level enhancement to his
base offense level pursuant to U.S. Sentencing Guidelines
Manual ("U.S.S.G.") § 3A1.2(c)(1) (dealing with assault on a
law enforcement officer); (2) by applying a four-level
enhancement pursuant to U.S.S.G. § 2K2.1(b)(6) (dealing
with possession of a firearm in connection with a felony
offense); and (3) by impermissibly "double counting" the two
objected-to enhancements under §§ 3A1.2(c)(1) and
2K2.1(b)(6). For the reasons set forth below, we reject all of
Hampton’s contentions and affirm the judgment.
UNITED STATES v. HAMPTON 3
I.
A.
On July 9, 2007, Hampton was the backseat passenger in
a red Honda automobile. Deputy Sheriff Gerald Atkinson of
Richland County, South Carolina effected a traffic stop of the
Honda for a broken tail light after following and observing the
vehicle for a short distance. Two other deputies who were in
the area, Deputies Warren Cavanaugh and Joseph Andaloro,
arrived as back-up. Atkinson approached the car, obtained the
operator’s license and registration, and returned to his vehicle.
During this time, the other deputies noticed that the backseat
passenger, Hampton, was sweating profusely, moving around,
and exhibiting signs of nervousness.
Having learned that there was an outstanding arrest warrant
for the driver of the Honda, Atkinson returned to the vehicle
and placed the driver under arrest. At about the same time,
one of the deputies ordered Hampton to exit the vehicle. As
he climbed out, and after a brief verbal exchange with one of
the deputies, Hampton shoved Cavanagh in the chest and fled
from the scene. The deputies chased Hampton, and Cavanagh
was the first to catch up to him. Hampton struggled and was
able to throw Cavanagh off of him. Atkinson then tackled
Hampton and held him to the ground. At this point, Hampton
was face down on the ground with Atkinson on top of him.
Atkinson provided several instructions to Hampton to put his
hands behind his back, but Hampton continued to struggle and
to make multiple attempts to retrieve something from his
pocket. Atkinson then used his taser on Hampton in an effort
to subdue him. After using the taser, Atkinson was able to
place one of Hampton’s hands in the handcuffs, but while he
did so, Hampton was able to work his other hand underneath
his chest. At that point, Atkinson again used the taser on
Hampton. Atkinson was then able to fully handcuff Hampton
and pat him down. The search revealed a fully loaded Taurus
.38 caliber revolver in Hampton’s back pants pocket, a bag
4 UNITED STATES v. HAMPTON
containing marijuana, and digital scales. In the course of his
attempts to control Hampton, Deputy Atkinson injured his
rotator cuff and the ligament in his shoulder, which required
medical attention and six weeks of physical therapy.
B.
Hampton was indicted in one count for violations of 18
U.S.C. §§ 922(g)(1) and 924(a)(2), felon in possession of a
firearm and ammunition. He filed a pretrial motion to sup-
press. After an evidentiary hearing, at which limited video
and audio recordings of the encounter at the traffic stop were
presented, the district court found that, under Maryland v.
Wilson, 519 U.S. 408 (1997), the deputies permissibly ordered
Hampton to step out of the Honda. Furthermore, the district
court found, albeit only implicitly, that when Hampton shoved
Deputy Cavanagh, there arose probable cause for Hampton’s
arrest. Therefore, the firearm was constitutionally seized, and
the court denied the motion to suppress. Hampton proceeded
to trial before a jury and was convicted.
At the sentencing hearing, the Presentence Report ("PSR")
revealed that Hampton’s record of prior convictions exposed
him to sentencing as an armed career criminal and a manda-
tory minimum sentence of incarceration for 180 months and
a maximum of life. Under the advisory sentencing guidelines,
Hampton’s base offense level was determined to be 24. He
received a two-level enhancement pursuant to U.S.S.G.
§ 2K2.1(b)(4) because the firearm he possessed was stolen.
Over Hampton’s timely objection, the district court adopted
the PSR’s recommendation and applied a six-level enhance-
ment pursuant to U.S.S.G. § 3A1.2(c)(1), finding that Hamp-
ton had created a substantial risk of serious bodily injury
while assaulting a law enforcement officer. Similarly, the dis-
trict court applied a four-level enhancement pursuant to
U.S.S.G. § 2K2.1(b)(6) for possessing the firearm in connec-
tion with another felony, namely, assaulting a police officer
while resisting arrest. Thus, Hampton’s final offense level
UNITED STATES v. HAMPTON 5
was 36. As Hampton’s criminal history category was VI, this
resulted in an advisory sentencing guidelines range of 324 to
405 months.
In addition to his objections to the six- and four-level
enhancements, Hampton also timely and separately objected
to the application of both enhancements, contending that the
combined ten-level enhancement constituted impermissible
double counting. The district court overruled all of the objec-
tions. Hampton then sought a variance sentence, which the
court granted, at least in part, because of the conceded overlap
of the enhancements. The court sentenced Hampton to 300
months of imprisonment, followed by five years of supervised
release.
II.
We first consider the district court’s ruling on the motion
to suppress. Our standard of review is well known:
In assessing a trial court’s ruling on a motion to
suppress, we review factual findings for clear error
and legal determinations de novo. When a motion to
suppress has been denied in the court below, we
review the evidence in the light most favorable to the
Government.
United States v. Green, 599 F.3d 360, 375 (4th Cir. 2010),
cert. denied ___ S. Ct. ___, 2010 WL 2717751 (Oct. 4, 2010)
and Boyd v. United States, ___ S. Ct. ___, 2010 WL 3074238
(Oct. 4, 2010) (internal citations omitted).
Hampton does not contest the legality of the vehicle stop.
He argues only that the deputies did not have reason to order
him out of the car or chase him upon his flight. He contends
that the district court’s reliance on Maryland v. Wilson, 519
U.S. 408 (1997), is misplaced because Arizona v. Gant, 129
S. Ct. 1710 (2009), overruled Wilson to the extent Wilson per-
6 UNITED STATES v. HAMPTON
mitted an officer to order a passenger to exit a vehicle. This
is not correct, as we have already held.
Wilson established that an officer making a traffic stop may
order passengers to get out of the car pending completion of
the stop. Wilson, 519 U.S. at 415. The officers may do so as
a precautionary measure, without reasonable suspicion that
the passenger poses a safety risk. Id. at 414-415. The Wilson
Court reasoned that the danger to an officer from a traffic stop
is likely to be greater when there are passengers in addition
to the driver in a stopped vehicle and the additional intrusion
on the passenger is minimal. Id.
Hampton acknowledges that we explicitly rejected his
argument that Gant fatally undermined Wilson in United
States v. Rumley, 588 F.3d 202 (4th Cir. 2009). Nevertheless,
he asserts the argument simply to preserve the issue. In Rum-
ley, we determined that an officer acted lawfully in ordering
a passenger to exit a car absent any suspicion that the passen-
ger had done anything wrong. Id. at 206. We said:
Long before its holding in Gant or the events giv-
ing rise to this appeal, the Supreme Court held that
an officer conducting a lawful traffic stop may, as a
safety measure, order any passenger to exit the vehi-
cle as a matter of course. Maryland v. Wilson, 519
U.S. 408, 414-15 (1997); see also United States v.
Sakyi, 160 F.3d 164, 168 (4th Cir. 1998). Nothing in
Gant, which limits permissible searches incident to
arrest, undermines the bright-line rule established in
Wilson.
Id.
Under Rumley and Wilson, Deputy Atkinson’s order to
Hampton to exit the vehicle was constitutionally permissible.
Id. Furthermore, quite apart from the issue of whether reason-
able suspicion existed to conduct an immediate frisk of
UNITED STATES v. HAMPTON 7
Hampton after he stepped out of the vehicle, when Hampton
shoved Deputy Cavanagh in his effort to flee from the depu-
ties, that act provided the deputies probable cause to arrest
Hampton for simple assault (and to conduct a search of his
person incident thereto). Thus, the district court did not err in
denying Hampton’s motion to suppress.
III.
We now turn to Hampton’s three challenges to his sen-
tence, each based on the district court’s advisory guidelines
calculations. When considering the district court’s application
of the Sentencing Guidelines, we review factual findings for
clear error and questions of law de novo. United States v.
Green, 436 F.3d 449, 456 (4th Cir. 2006).
A.
It is undisputed that Hampton qualified as an "armed career
criminal" pursuant to 18 U.S.C. § 924(e) and therefore faced
a mandatory minimum sentence of incarceration of 180
months and a maximum sentence of life in prison. Although
he does not challenge that aspect of his sentencing, Hampton
does contend that the district court erred in its calculation of
his advisory guidelines range by applying two enhancements.
Hampton’s base offense level was determined to be 24. The
two disputed enhancements applied by the district court added
a total of 10 offense levels.1 First, the court applied a six-level
enhancement pursuant to U.S.S.G. § 3A1.2(c)(1) for "creating
a substantial risk of serious bodily injury" while assaulting an
officer "during the course of the offense or immediate flight
therefrom." Second, the court applied a four-level enhance-
ment pursuant to U.S.S.G. § 2K2.1(b)(6) based on its finding
1
The district court applied a two-level enhancement pursuant to
U.S.S.G. § 2K2.1(b)(4) because the firearm Hampton possessed had been
stolen. Hampton does not dispute this enhancement.
8 UNITED STATES v. HAMPTON
that Hampton possessed the firearm in connection with
another felony, namely, assaulting a law enforcement officer
while resisting arrest. Hampton argues that it was error to
apply either of these two enhancements and, even if either
would apply, it was error to apply both, cumulatively. We
consider his contentions in turn.
B.
Hampton first argues that the district court erred in apply-
ing the six-level enhancement pursuant to U.S.S.G.
§ 3A1.2(c)(1) because the evidence before the district court
did not establish that he assaulted either of the arresting depu-
ties in a manner creating a substantial risk of serious bodily
injury. We reject this contention and conclude that the evi-
dence before the district court was sufficient to support its
application of the enhancement.
In considering Hampton’s argument, we look first to the
language of the enhancement. Section 3A1.2(c)(1) provides
for a six-level enhancement where a defendant "in a manner
creating a substantial risk of serious bodily injury," and
"knowing or having reasonable cause to believe that a person
was a law enforcement officer, assaulted such officer during
the course of the offense or immediate flight therefrom."
Application note 4(A) to § 3A1.2(c)(1) states that the provi-
sion applies in circumstances "tantamount to aggravated
assault." Application note 4(B) provides that "‘[s]ubstantial
risk of serious bodily injury’ includes any more serious injury
that was risked, as well as actual serious bodily injury"
(emphasis added). The Guidelines define "serious bodily
injury" as "injury involving extreme physical pain or the pro-
tracted impairment of a function of a bodily member, organ,
or mental faculty; or requiring medical intervention such as
surgery, hospitalization, or physical rehabilitation." U.S.S.G.
§ 1B1.1 (emphasis added).
In light of these definitions and the largely undisputed facts
before the district court at sentencing, the elements justifying
UNITED STATES v. HAMPTON 9
application of the enhancement are clearly established. Hamp-
ton does not dispute that he knew Atkinson and Cavanagh
were law enforcement officers. It is also clear that Atkinson
suffered "serious bodily injury" during his struggle to detain
and handcuff Hampton after Hampton tried to flee the scene
of the traffic stop. Atkinson’s injury to his rotator cuff and lig-
ament in his shoulder required medical attention and six
weeks of physical therapy. Under the Guidelines’ definition,
this constitutes a "serious bodily injury." See § 1B1.1.
Of course, the mere fact that Atkinson suffered a serious
bodily injury does not alone satisfy the provision; we must
also determine whether the district court committed clear
error in finding that the evidence established that Hampton
"assaulted" Deputy Atkinson in a manner creating a substan-
tial risk of such injury.
As the Sentencing Guidelines do not provide a definition of
"assault," we turn to the common meaning of the word for
guidance. Cf. United States v. Diaz-Ibarra, 522 F.3d 343,
348-49 (4th Cir. 2008) ("Because the Sentencing Guidelines
do not define the phrase [‘sexual abuse of a minor’], we inter-
pret it by employing the common meaning of the words that
the Sentencing Commission used."). We begin with the dic-
tionary definition of "assault." See id. (citing Webster’s and
Black’s Law Dictionary). Black’s Law Dictionary lists several
definitions of "assault": a "threat or use of force" inflicting "a
reasonable apprehension" of harm; "an attempt to commit bat-
tery"; "a battery"; and "any attack." Black’s Law Dictionary
130 (9th ed. 2009). Webster’s defines the term as "a violent
physical or verbal attack"; and "a threat or attempt to inflict
offensive physical contact" creating "immediate danger" or
"apprehension of such harm." Merriam-Webster Collegiate
Dictionary (11th ed. 2010). These definitions reveal that in
common usage, "assault" is synonymous with "attack."
At least one other circuit court of appeals has looked to the
common law to define "assault" within the Sentencing Guide-
10 UNITED STATES v. HAMPTON
lines. See United States v. Lee, 199 F.3d 16, 17 (1st Cir. 1999)
(applying the common law definition of assault to the "Offi-
cial Victim" enhancement we consider in this case, now
located at U.S.S.G. § 3A1.2(c)(1)). It is worth noting that
application of the common law meaning of "assault" provides
us with the same result we reach by considering its common
meaning. At common law, assault consisted of either
attempted battery or the "deliberate infliction upon another of
a reasonable fear of physical injury." United States v. Delis,
558 F.3d 177, 180-81 (2d Cir. 2009) (citing 3 William Black-
stone, Commentaries on the Laws of England *120; 2 Wayne
R. LaFave, Substantive Criminal Law § 16.3, at 565-66, 568
(2d ed. 2003)). In contrast, common law battery consisted of
"the unlawful application of force to the person of another,"
and required no specific intent to commit the act. Id. (citing
2 LaFave, supra, § 16.2, at 552). Over the years, however,
battery has come to be defined as a completed assault, and
thus an assault is necessarily included in every battery. See id.
("[E]ven as a formal matter, a battery has generally been con-
sidered to constitute the successful completion of, and there-
fore necessarily to include, an assault.") (citing Rollin M.
Perkins, Non-Homicide Offenses Against the Person, 26
B.U.L. Rev. 119, 119-20 (1946) ("A battery includes an
assault. . . . Hence a defendant may be convicted of assault
although the evidence shows also a battery."); People v.
Heise, 20 P.2d 317, 318 (Cal. 1933) ("Battery includes
assault; in fact, battery is a consummated assault. Assault is,
therefore, necessarily included in battery."); State v. Hefner,
155 S.E. 879, 880-81 (N.C. 1930) (discussing a statute crimi-
nalizing "assault[ ] . . . inflict[ing] serious injury not resulting
in death" and noting that, although "[a]n assault is an offer or
attempt by force or violence to do injury[,] . . . every battery
includes an assault [and] an assault inflicting serious injury
necessarily implies a battery")).
Consonant with this historical development, several states,
as well as the drafters of the Model Penal Code, have merged
the two offenses. See, e.g., Md. Code Ann., Criminal Law,
UNITED STATES v. HAMPTON 11
§ 3-201(b) ("‘Assault’ means the crimes of assault, battery,
and assault and battery, which retain their judicially deter-
mined meanings."); Arizona Rev. Stat. Ann., § 13-1203(A)
("A person commits assault by: 1. Intentionally, knowingly or
recklessly causing any physical injury to another person; or 2.
Intentionally placing another person in reasonable apprehen-
sion of imminent physical injury; or 3. Knowingly touching
another person with the intent to injure, insult or provoke such
person."); Model Penal Code § 211.1 (". . . A person is guilty
of assault if he: (a) attempts to cause or purposely, knowingly
or recklessly causes bodily injury to another . . . ."). The effect
of these changes is that the two crimes have become nearly
synonymous. See Delis, 558 F.3d at 181 (noting that the terms
assault and battery are often used interchangeably) (citing 2
LaFave, supra, § 16.1, at 551 ("[T]he word ‘assault’ is some-
times used loosely to include a battery . . . ."); Perkins, supra,
at 119-20 & n.1 ("It is not uncommon to detail the facts con-
stituting a battery in speaking of an assault . . . .")). Consider-
ing both this history and the common meaning of the word,
we readily conclude that battery of a law enforcement officer
was intended to and in fact does satisfy U.S.S.G.
§ 3A1.2(c)(1)’s assault requirement.
The district court, expressly adopting the analysis of the
probation officer contained in the PSR, concluded that Hamp-
ton assaulted Atkinson when Hampton struggled with the dep-
uty while at the same time attempted to retrieve the firearm
from his pocket and use it in a manner to cause serious bodily
injury. The district court also concluded that Atkinson injured
his shoulder and rotator cuff while attempting to apprehend
and secure Hampton. Specifically, the court stated:
[T]he facts of the situation are such that the defen-
dant obviously intended to struggle with and avoid
and resist arrest, and in the course of that he did so
in a manner which created a substantial risk of seri-
ous bodily injury, and in fact there was an injury to
the officer as a result of the struggle.
12 UNITED STATES v. HAMPTON
In light of our conclusion that a completed battery satisfies
§ 3A1.2(c)(1)’s assault requirement and the district court’s
findings of fact, it is clear to us that the district court did not
err in concluding that Hampton assaulted Atkinson when he
struggled with him while resisting arrest. Consequently,
because Hampton assaulted Atkinson with knowledge that
Atkinson was a law enforcement officer, application of the
enhancement is justified, both because (1) Hampton "created
a substantial risk of serious bodily injury" by his assaultive
resistance to arrest and because as a result of the struggle, (2)
Atkinson suffered an "actual serious bodily injury."
1.
On the first ground, we find that the facts of this case estab-
lished that Hampton created a substantial risk of serious bod-
ily injury to Deputy Atkinson. The facts established that
Hampton attempted to flee, shoved away one deputy, and
required the second deputy to tackle him to prevent his
escape. Once tackled, Hampton struggled and attempted to
retrieve his firearm, despite orders from the deputies to place
his hands behind his back and stop struggling. Atkinson was
then forced to use his taser on Hampton in order to prevent
him from reaching into his pocket and to place him in hand-
cuffs. Even after Atkinson used the taser, Hampton continued
to struggle, and Atkinson was forced to use the taser a second
time.
While application of U.S.S.G. § 3A1.2(b) is often based on
actual injury to the officer or a willful attempt by the defen-
dant to inflict serious injury, see United States v. Harrison,
272 F.3d 220, 222-223 (4th Cir. 2001) (finding conduct that
created a substantial risk of serious bodily injury where a
codefendant fired a gun at the officers); United States v. Slo-
ley, 19 F.3d 149, 154 (4th Cir. 1994) (finding conduct that
created a substantial risk of serious bodily injury where the
defendant engaged in a struggle with the officer, grabbed the
officer’s gun from his holster, and raised it towards the offi-
UNITED STATES v. HAMPTON 13
cer), courts have also found application of the enhancement
proper where direct harm is less likely than it is when the
defendant takes actual possession of a firearm; the defen-
dant’s conduct still created a substantial risk of harm, see
United States v. Hill, 583 F.3d 1075, 1080 (8th Cir. 2009)
(finding conduct that created a substantial risk of serious bod-
ily injury where defendant made multiple attempts to retrieve
his loaded weapon during a struggle with law enforcement);
United States v. Bowie, 198 F.3d 905, 913 (D.C. Cir. 1999)
(finding that defendant who struggled with arresting officers
while attempting to pull a pistol from his waistband assaulted
officer in a manner creating risk of serious bodily injury suffi-
cient to support the enhancement); cf. United States v. Easter,
553 F.3d 519, 524 (7th Cir. 2009) (finding, in the context of
U.S.S.G. § 3C1.2 ("Reckless Endangerment During Flight"),
that "simply reaching for a loaded gun is enough to create a
substantial risk of serious bodily injury to another person").
We find that here, Hampton’s conduct created a substantial
risk of serious bodily injury, and conclude that the district
court did not err in applying the enhancement under
§ 3A1.2(c)(1).
2.
As we noted, however, application of the § 3A1.2(c)(1)
enhancement is proper in this case not only because Hamp-
ton’s assaultive conduct created a substantial risk of serious
bodily injury, but also because serious bodily injury actually
occurred. See U.S.S.G. § 3A1.2(c)(1), Application Note 4(B).
The district court found that there was an injury to Atkinson’s
shoulder as a result of his struggle with Hampton. There is no
question that the injury, which required medical attention and
weeks of attendance at therapy, is sufficiently serious to sat-
isfy the enhancement provision. See U.S.S.G. § 1B1.1 (stating
that any injury requiring medical intervention such as physical
rehabilitation constitutes a serious bodily injury). We there-
fore conclude that the district court did not err in determining
14 UNITED STATES v. HAMPTON
that Hampton assaulted the officer in such a way that his
actions caused an actual serious injury to Deputy Atkinson.
C.
Hampton next contests the application of the four-level
enhancement pursuant to U.S.S.G. § 2K2.1(b)(6). Section
2K2.1(b)(6) provides for a four-level enhancement "[i]f the
defendant used or possessed any firearm or ammunition in
connection with another felony offense." Hampton argues that
he did not assault any of the officers while resisting arrest and
thus did not commit a felony for the purposes of
§ 2K2.1(b)(6). Although we did not look to South Carolina
law to define assault as used in § 3A1.2(c)(1),2 we find that
the language of the relevant South Carolina statute is suffi-
ciently broad to support the district court’s conclusion that
Hampton committed felonious assault on Deputy Atkinson in
the course of the struggle.
In South Carolina, the felony of assaulting an officer while
resisting arrest requires that a defendant "assault, beat, or
wound an officer when the person is resisting an arrest being
made by one whom the person knows or reasonably should
know is a law enforcement officer." Code of Laws of S.C.,
1976 Ann. § 16-9-320. The above analysis, in which we con-
clude that the district court correctly found that Hampton had
2
As noted supra in Section III.B., because the Sentencing Guidelines do
not provide a definition of assault, we turned to both the common meaning
of the word and the common law for guidance. See United States v. Diaz-
Ibarra, 522 F.3d 343, 348-49 (4th Cir. 2008); United States v. Lee, 199
F.3d 16, 17 (1st Cir. 1999). However, to determine whether Hampton used
or possessed a firearm "in connection with another felony offense," we
must determine whether Hampton’s conduct constitutes a felony under
either federal, state, or local law. See § 2K2.1, Application 14(C) (noting
that "[a]nother felony offense" means "any Federal, state, or local
offense," other than the predicate firearms offense, "regardless of whether
a criminal charge was brought, or a conviction obtained"). We choose here
to analyze whether Hampton’s conduct constituted felonious assault under
South Carolina law.
UNITED STATES v. HAMPTON 15
committed an assault for purposes of § 3A1.2(c)(1), estab-
lishes that Hampton committed a felony assault on a law
enforcement officer while resisting arrest under South Caro-
lina law for purposes of § 2K2.1(b)(6).
The final element of § 2K2.1(b)(6) requires that the govern-
ment prove that Hampton used or possessed the firearm "in
connection with" commission of the felony. While this issue
presents a closer call, we conclude that the government has
met its burden on this element. We have determined that a
weapon is used or possessed "in connection with" another
offense if the weapon "facilitates or has a tendency to facili-
tate the [other] offense." United States v. Blount, 337 F.3d
404, 411 (4th Cir. 2003) (quoting United States v. Garnett,
243 F.3d 824, 828 (4th Cir. 2001)). In other words, "the fire-
arm must have some purpose or effect with respect to the . . .
crime; its presence or involvement cannot be the result of
accident or coincidence." Id. (quoting Smith v. United States,
508 U.S. 223, 238 (1993)).
In Blount, we determined that the government failed to
meet its burden by showing only that Blount stole a weapon
during the commission of a burglary; however, we noted that
the government could have satisfied its burden by showing
that the defendant kept the weapon accessible in preparation
for any problems that might have arisen during the burglary.
Id. Similarly here, the district court found that Hampton had
the weapon close at hand and, more importantly, that he made
multiple attempts to access it during the course of the assault.3
3
We note that Hampton made no argument before the district court that
his possession of the firearm was other than "in connection with" the
assault on Deputy Atkinson, and he has not made that argument on appeal.
Instead, counsel has argued only that Hampton did not commit a violent
assault on a law enforcement officer as he was being placed under arrest,
seeming to refer mainly (if not only) to Hampton’s shove of Cavanagh as
he exited the vehicle and took flight. Thus, because counsel failed to make
the argument regarding possession of the firearm "in connection with" the
16 UNITED STATES v. HAMPTON
Given these facts, we will not disturb the district court’s find-
ing that the presence of the firearm facilitated Hampton as he
resisted arrest, and in applying the four-level enhancement
under § 2K2.1(b)(6) for possession of a firearm in connection
with another felony offense. See United States v. Jenkins, 566
F.3d 160, 163 (4th Cir. 2009) (stating that this court will not
disturb factual determinations based on the specific circum-
stances of a case unless "left with the definite and firm con-
viction that a mistake has been committed") (quoting United
States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007).
D.
Finally, we consider whether the district court engaged in
impermissible double counting by imposing both the six-level
and four-level enhancements discussed above. While Hamp-
ton acknowledges that there is a presumption double counting
is permissible except where expressly prohibited, he argues
that here the presumption is rebutted because both enhance-
ments are based on his "alleged creation of a substantial risk
of harm by way of an assault upon the arresting officer." Br.
of Appellant at 21. Therefore, he says, the enhancements
"serve identical policies, and are not divergent as applied to
the facts of this case." Id.
Hampton’s claim is without merit. As he acknowledges,
there is a presumption that double counting is proper where
not expressly prohibited by the guidelines. See United States
v. Schaal, 340 F.3d 196, 198 (4th Cir. 2003). Hampton admits
that there is no express prohibition against double counting
assault on Deputy Atkinson, the district court made no explicit finding that
the firearm was in fact possessed "in connection with" that assault. We
readily conclude, however, that implicit in the district court’s factual
determination that Hampton made repeated attempts to access the weapon
during the course of the commission of the felony assault on Atkinson is
the conclusion that the weapon had some facilitative purpose and effect
with respect to the assault.
UNITED STATES v. HAMPTON 17
here. He claims only that the presumption in favor of double
counting is rebutted where the two provisions serve identical
policies. The premise for this claim has been explicitly
rejected by the Eighth Circuit:
[T]he §§ 2K2.1 and 3A1.2 enhancements may be
applied cumulatively because they are based on dis-
tinct aspects of Hill’s conduct. See United States v.
Zech, 553 F.3d 663, 668 (8th Cir. 2009) (per curiam)
(approving cumulative application of two enhance-
ments because the guidelines "address conceptually
separate sentencing notions"). The § 2K2.1 enhance-
ment addresses the connection between a felony and
use of a firearm, whereas the § 3A1.2 adjustment
concerns the identity of the victim of Hill’s assaul-
tive conduct. Cf. United States v. Joiner, 418 F.3d
863, 870 (8th Cir. 2005) (holding that double count-
ing was permissible because official victim adjust-
ment addressed a different consideration from the
guideline for obstruction of justice offenses).
United States v. Hill, 583 F.3d 1075, 1081 (8th Cir. 2009). As
in Hill, each of the enhancements in this case addresses differ-
ent aspects of Hampton’s conduct: the § 3A1.2 enhancement
addresses his conduct resulting in the injury to a law enforce-
ment officer, and the § 2K2.1 enhancement addresses his use
of a firearm while violently resisting arrest. Consequently, we
hold that the district court’s application of cumulative
enhancements under § 3A1.2(c)(1) and § 2K2.1(b)(6) is not
impermissible double counting.
IV.
For the foregoing reasons, we affirm the judgment.
AFFIRMED