UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4266
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS ANTONIO RILEY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00122-TDS-1)
Submitted: January 20, 2015 Decided: February 3, 2015
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Ripley Rand,
United States Attorney, Kyle D. Pousson, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Antonio Riley, Jr., pleaded guilty to one count
of being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2) (2012). The conviction was
predicated on an altercation between Riley and a law enforcement
officer; during the altercation, Riley obtained the officer’s
firearm and shot him in the leg. Riley was sentenced to the
statutory maximum of ten years’ imprisonment, which was also the
Sentencing Guidelines range. On appeal, Riley raises three
challenges to the calculation of his Sentencing Guidelines
range, and he contests the reasonableness of his sentence.
Finding no error, we affirm.
We review Riley’s sentence for reasonableness,
applying an abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). We first review for
“significant procedural error[s],” including, among other
things, whether the Guidelines range was calculated incorrectly.
Id. When reviewing the district court’s application of the
Guidelines, we review findings of fact for clear error and
questions of law de novo. United States v. Strieper, 666 F.3d
288, 292 (4th Cir. 2012). Only if we find a sentence
procedurally reasonable will we consider whether it is
substantively reasonable. Id. We presume a sentence is
substantively reasonable if it is imposed within the properly
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calculated Guidelines range. See United States v. Louthian, 756
F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).
This presumption may only be rebutted with a showing that the
sentence is unreasonable when measured against the 18 U.S.C.
§ 3553(a) (2012) factors. Id.
In his first sentencing challenge, Riley claims that
the district court erred in crediting the testimony of the
police officer and in finding that Riley’s firearms offense was
related to an underlying robbery offense. The calculation of
Riley’s offense level began with the application of U.S.
Sentencing Guidelines Manual (USSG) § 2K2.1(c)(1) (2012), the
Guideline applicable to offenses involving unlawful possession
of firearms. Because Riley’s firearms offense was committed in
connection with another offense, section 2K1.1(c)(1)(A) provides
a cross-reference to USSG § 2X1.1. That section, in turn,
directs application of the base offense level for the underlying
substantive offense. The substantive offense used by the
probation officer in formulating the presentence report (PSR)
was robbery. See USSG § 2B3.1.
When determining whether the underlying offense was
indeed robbery, the district court considered the testimony of
both Riley and the law enforcement officer. The court credited
the officer’s testimony, finding that Riley took the firearm
away from the officer after a struggle, put a magazine into the
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firearm, chambered a round, and pointed the firearm at the
officer. Riley argues that the court erred by crediting the
officer’s testimony. Under clear error review, we may decide
that a factual finding is clearly erroneous only if we are left
with the definite and firm conviction that a mistake has been
made. United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir.
2008). Nothing in the record calls into question the district
court’s decision to credit the testimony of the law enforcement
officer. See, e.g., United States v. McLean, 715 F.3d 129, 145
(4th Cir. 2013) (deferring to district court’s decision to
credit witness’s testimony). Because Riley’s conduct, as found
by the district court, constituted robbery under North Carolina
law, see North Carolina v. Maness, 677 S.E.2d 796, 810 (N.C.
2009), the court properly applied the base offense level for
USSG § 2B3.1.
Riley next challenges the enhancement applied under
USSG § 3A1.2(c)(1). Pursuant to that section, six levels are
added to the offense level if the defendant assaulted the
officer during the course of the offense or immediate flight
therefrom and created a substantial risk of serious bodily
injury. An assault is a threat or use of force with the intent
to create bodily injury. United States v. Hampton, 628 F.3d
654, 660 (4th Cir. 2010). The application notes to the relevant
Guidelines provision state that the enhancement applies in
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circumstances “tantamount to aggravated assault.” USSG § 3A1.2
cmt. n.4(a). Riley argues that the district court erred in
applying this enhancement. We have reviewed the record and the
district court’s factual findings and conclude there was no
error in the district court’s finding that Riley engaged in
“assaultive resistance to arrest;” thus, the addition of six
levels to the offense level was proper. Hampton, 628 F.3d at
660-61.
Riley next contends that the district court erred in
declining to award him an acceptance of responsibility
reduction. Under USSG § 3E1.1(a), the sentencing court should
decrease the offense level by two levels if the defendant
clearly demonstrates acceptance of responsibility for his
offense. When the district court determines that the defendant
qualifies for a decrease under subsection (a), the offense level
may be decreased by one additional level under § 3E1.1(b), if
the government so moves. In order to receive a reduction
pursuant to USSG § 3E1.1, “the defendant must prove by a
preponderance of the evidence that he has clearly recognized and
affirmatively accepted personal responsibility for his criminal
conduct.” United States v. May, 359 F.3d 683, 693 (4th Cir.
2004) (internal quotation marks omitted). “[A] defendant who
falsely denies, or frivolously contests, relevant conduct that
the court determines to be true has acted in a manner
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inconsistent with acceptance of responsibility.” USSG § 3E1.1
cmt. n.1(A). Because Riley denied the relevant conduct of
attempting to disarm the officer, the district court’s decision
was not clearly erroneous.
Finally, Riley asserts that his sentence was
unreasonable. He contends that the district court “placed undue
weight on the nature of the crime,” referring to the Guidelines
calculation challenges addressed above. (Appellant’s Br. at 20-
22). Because we have concluded that those challenges are
meritless, and because Riley’s within-Guidelines sentence is
entitled to a presumption of reasonableness — a presumption he
has not rebutted in any fashion — we conclude that his sentence
was reasonable.
Accordingly, we affirm Riley’s sentence. 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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