UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5231
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM ANDREW MERRITT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:10-cr-00054-RAJ-TEM-1)
Submitted: July 28, 2011 Decided: August 10, 2011
Before SHEDD, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Patrick L. Bryant,
Appellate Attorney, Norfolk, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Kristine E. Wolfe, Special
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Andrew Merritt pled guilty to unlawful
possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1) (2006), and was sentenced to a term of sixty-six
months imprisonment. Merritt appeals his sentence, contending
that the district court clearly erred in finding that he
assaulted a law enforcement officer in the course of the offense
in a manner that created a substantial risk of serious bodily
injury, U.S. Sentencing Guidelines Manual § 3A1.2(c)(1) (2010).
We affirm.
Responding to a 911 call from a woman reporting that a
disorderly man armed with a handgun was refusing to leave her
hotel room, Police Officer S.A. Mounger encountered Merritt
walking out the front entrance to the hotel. Merritt
acknowledged he was the subject of the 911 call and showed his
identification. He then began walking back to his room. * He
ignored Officer Mounger’s request to pat him down for weapons.
When Mounger drew his gun and ordered Merritt to get down on the
floor, Merritt did not obey. As Merritt began to re-enter his
room, Mounger tried to take him into custody. Merritt elbowed
Mounger in the left arm and then slammed the door on Mounger’s
*
At the time, Merritt was living at the hotel with a former
girlfriend.
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left arm, slightly injuring Mounger’s left elbow. While Mounger
held the door open with his leg, Merritt ran into the bathroom
and closed the door briefly. He came out again as backup
officers arrived. Merritt was arrested for assaulting an
officer; however, to effect his arrest the officers had to
subdue him with pepper spray. Merritt’s handgun was found in
the bathroom and marijuana was found in the room.
At sentencing, Merritt contested the probation
officer’s recommendation for a six-level increase in the offense
level under § 3A1.2(c)(1). Information in the presentence
report summarized Officer Mounger’s account of the incident, as
well as a monitored telephone call Merritt made the next day
from the Newport News jail, in which he said that he had tried
to break the officer’s arms by slamming the door on him. The
district court found that slamming a door on a person’s arm
could potentially cause a serious injury, that Merritt had
slammed the door on the officer’s arm forcefully in hopes of
deterring the officer from entering his hotel room, and that the
officer had been lucky to escape with a minor injury. The court
decided that the enhancement under § 3A1.2(c)(1) was properly
applied. However, the court departed downward from the
Guidelines range of 84-105 months and imposed a sentence of
sixty-six months.
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We review the factual findings underlying a sentencing
enhancement for clear error. United States v. Carter, 601 F.3d
252, 254 (4th Cir. 2010). Pursuant to USSG § 3A1.2(c), a
defendant qualifies for a six-level enhancement if, knowing or
having reasonable cause to believe that a person is a law
enforcement officer, he assaults the officer in a manner
creating a substantial risk of serious bodily injury during the
course of an offense or during immediate flight from the
offense. USSG § 3A1.2(c)(1). In determining whether an assault
was committed, this court looks to its meaning both in common
usage and common law. United States v. Hampton, 628 F.3d 654,
660 (4th Cir. 2010). Battery of a law enforcement officer
qualifies as an assault within the meaning of USSG
§ 3A1.2(c)(1). Id. at 661.
Merritt argues that the government did not prove that
he intentionally attacked Mounger. Instead, Merritt states that
he was retreating from the police when he “shut a hotel room
door in such a way that it made contact with an officer’s
elbow.” Appellant’s Br. at 7. He also argues that the
government failed to prove that his action created a substantial
risk of serious injury to the officer and maintains that the
district court should not have given any weight to his boast
that he tried to injure the officer by slamming the door on him.
He contends that the fact that Mounger’s injury was slight
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proves that he had no intention of seriously harming Mounger.
Last, he states that, had he wished to seriously harm Mounger,
he could have used his gun to do so, which he did not.
Contrary to Merritt’s contentions, the presentence
report tendered to the court and other evidence of record showed
that Merritt did not merely retreat but actively refused to
cooperate with Mounger’s request for a pat-down and subsequent
order to get on the floor, purposely slammed the door on
Mounger’s arm, and eventually had to be subdued with pepper
spray. Merritt had the burden of showing that the information
in the presentence report was inaccurate, which he failed to do.
See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990).
Moreover, the information in the presentence report was
corroborated and amplified by Merritt’s phone call from the jail
in which he said he had tried to break Mounger’s arms when he
slammed the door. Even though Mounger’s injury was slight,
Merritt’s action had the potential to produce a more serious
injury such as a broken arm, which was enough to trigger the
enhancement. United States v. Ashley, 141 F.3d 63, 68–69 (2d
Cir. 1998). Therefore, the district court did not clearly err
in finding that Merritt created a substantial risk of a serious
injury and in applying the enhancement.
Accordingly, we affirm the sentence imposed by the
district court. We dispense with oral argument because the
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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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