US v. Correy Janifer, No. 14-4047 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4047 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CORREY MARKELL JANIFER, Defendant -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. (8:13cr-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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. (4th Cir. 2014). entire evidence[,] United States v. Cox, 744 F.3d 305, 308 We will find clear error only when, on the [we are] left with the definite conviction that a mistake has been committed. and firm 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. explains that the enhancement applies 2 only An application note in circumstances tantamount to an aggravated assault -that is-- assaultive conduct . . . that is sufficiently serious to create at least a substantial risk § 3A1.2(c)(1) of cmt. serious n.4(A) bodily (internal injury. quotation U.S.S.G. marks omitted). Serious bodily injury is an injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, intervention or such rehabilitation. mental as faculty; surgery, or requiring hospitalization, or medical physical 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 use includes the threat or of force inflicting a reasonable apprehension of harm; an attempt to commit battery; a battery; omitted). a law and any attack. Id. (internal quotation marks Accordingly, we readily conclude[d] that battery of enforcement officer was intended to and in fact satisfy U.S.S.G. § 3A1.2(c)(1) s assault requirement. does 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 was Officer Usher a law 3 enforcement officer; (2) he 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 bodily injury. at least a substantial risk of serious 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 assault. Usher s police cruiser qualified as an aggravated 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 contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 4
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