UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CORREY MARKELL JANIFER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:13-
cr-00089-PWG-1)
Submitted: August 26, 2014 Decided: September 5, 2014
Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher M. Davis, Mary E. Davis, DAVIS & DAVIS, Washington,
D.C., for Appellant. Rod J. Rosenstein, United States Attorney,
Hollis Raphael Weisman, Assistant United States Attorney,
Kathleen E.I. Wise, Student Law Clerk, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Correy Markell Janifer pled guilty, pursuant to a plea
agreement, to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1) (2012), and interstate
transportation of a stolen vehicle, in violation of 18 U.S.C.
§ 2312 (2012). Janifer appeals his forty-six-month sentence,
arguing that the district court clearly erred when it applied a
six-level enhancement to his base offense level for assaulting a
police officer while fleeing arrest, pursuant to U.S. Sentencing
Guidelines Manual (“U.S.S.G.”) § 3A1.2(c)(1) (2013). We affirm.
When evaluating Guidelines calculations, we review the
district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Cox, 744 F.3d 305, 308
(4th Cir. 2014). We will find clear error only when, “on the
entire evidence[,] [we are] left with the definite and firm
conviction that a mistake has been committed.” Id. (internal
quotation marks omitted).
Section 3A1.2(c)(1) authorizes the sentencing court to
enhance the offense level by six if the defendant, in a manner
creating a substantial risk of serious bodily injury, “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.” An application note
explains that the enhancement applies only “in circumstances
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tantamount to an aggravated assault”—-that is--“assaultive
conduct . . . that is sufficiently serious to create at least a
substantial risk of serious bodily injury.” U.S.S.G.
§ 3A1.2(c)(1) cmt. n.4(A) (internal quotation marks omitted).
“Serious bodily injury” is an “injury involving extreme physical
pain or the protracted 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 cmt. n.1(L).
Because the Guidelines do not define assault, we held,
in a case involving the same sentencing enhancement, that the
common law definition applies. See United States v. Hampton,
628 F.3d 654, 660 (4th Cir. 2010). The common law definition of
assault includes the “threat or use of force inflicting a
reasonable apprehension of harm; an attempt to commit battery; a
battery; and any attack.” Id. (internal quotation marks
omitted). Accordingly, we “readily conclude[d] 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.” Id. at
661.
In sum, in order for the enhancement to apply in this
case, the Government was required to prove by a preponderance of
the evidence that: (1) Janifer knew or had reason to believe
that Officer Usher was a law enforcement officer; (2) he
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assaulted Officer Usher in the course of the offense or
immediate flight therefrom, employing the common law definition
of assault; and (3) the assault qualified as aggravated—-that
is--one that created at least a substantial risk of serious
bodily injury. See United States v. Manigan, 592 F.3d 621, 628-
29 (4th Cir. 2010) (noting that the government has the burden of
proving application of U.S.S.G. sentence enhancements by a
preponderance of the evidence).
The primary dispute on appeal is whether the first
collision between the stolen vehicle Janifer was driving and
Officer Usher’s police cruiser qualified as an aggravated
assault. We conclude that the district court did not clearly
err by applying the § 3A1.1(c)(1) enhancement to Janifer’s base
offense level when Janifer intentionally accelerated into
Officer Usher’s cruiser at speeds that created a substantial
risk of serious bodily injury. The collision was not an
accident nor a benign contact between the two vehicles.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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