                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4702



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CARLOS DEMORIS DARDEN,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Malcolm J. Howard,
District Judge. (CR-04-46)


Submitted:   May 31, 2006                     Decided:   June 9, 2006


Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Carlos Demoris Darden pled guilty to possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was

sentenced to the statutory maximum term of 120 months imprisonment.

He appeals his sentence, contending that the district court clearly

erred in finding that he assaulted a police officer in a manner

that created a substantial risk of serious bodily injury, U.S.

Sentencing Guidelines Manual § 3A1.2(b)(1) (2003).1      We affirm.

            On January 25, 2004, Carlos Darden’s wife obtained a

warrant for his arrest, charging that he had assaulted her at a

coin laundry.    She reported that he was armed with two handguns.

According to Officer Shawn Brock’s report of what followed, Brock

drove by Darden’s house and saw Darden walking through the back

yard.    Darden fled on foot, and Brock pursued him.   While they were

running, Brock saw Darden getting something out of his coat pocket.

Brock drew his service revolver.    Darden turned around and pointed

a revolver at Brock for approximately two seconds, then threw the

gun at Brock and continued to run.      In his report of the incident,

Brock stated that he thought Darden either tried to shoot, but the

gun did not fire, or Darden saw that Brock’s weapon was already

aimed at him.




     1
      Although Darden was sentenced in June 2005, the probation
officer used the 2003 Guidelines Manual to avoid an Ex Post Facto
problem. See USSG § 1B1.11(b)(1).

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           Brock caught up to Darden and tackled him.                  While they

struggled on the ground, Darden tried to take Brock’s firearm out

of its holster, and Brock kneed Darden in the side.                Darden stood

up and began to take something else out of his coat.                   Thinking it

was the second gun, Brock again drew his revolver and pointed it at

Darden’s chest.     As he was about to pull the trigger, Brock saw

that Darden had a cell phone. Brock holstered his firearm, knocked

Darden on the ground, and sprayed him with pepper spray.                     Despite

the spray, Brock was unable to handcuff Darden, who escaped and ran

down the street.      After another officer arrived and assisted in

taking Darden into custody, Brock retrieved the revolver that

Darden had thrown at him.        It had five rounds of ammunition in it.

A second firearm was not found.

           The probation officer calculated a base offense level of

24 under USSG § 2K2.1(a)(2), added a four-level enhancement under

§ 2K2.1(b)(5) for use of the firearm in connection with another

felony (assault on the officer), and added a three-level adjustment

under USSG § 3A1.2(b)(1) for creation of a substantial risk of

serious   bodily   injury   to    a   person   Darden      knew   to    be    a   law

enforcement   officer     during      the   offense   or    immediate         flight

therefrom.2    With   a   three-level       adjustment     for    acceptance       of


     2
      Application Note 4(A) to § 3A1.2 states that “subsection (b)
applies in circumstances tantamount to aggravated assault . . .
against a law enforcement officer       . . .”     As defined in
Application Note 1 to § 2A2.2, “aggravated assault means a
felonious assault that involved (A) a dangerous weapon with intent

                                      - 3 -
responsibility, USSG § 3E1.1, the recommended offense level was 28.

Darden was in criminal history category V, which gave him an

advisory guideline range of 130-162 months.       However, because the

statutory maximum sentence for a violation of § 922(g)(1) is ten

years, see 18 U.S.C. § 924(a)(2) (2000), the guideline range became

120 months.    See USSG § 5G1.1(a).

          At    sentencing,     Darden    contested   the   recommended

enhancement    under   §    2K2.1(b)(5)   and   the   adjustment   under

§ 3A1.2(b), arguing that Brock’s report was not credible and that

pointing a gun was, in any case, only a misdemeanor offense under

North Carolina law.3       The district court determined that Darden

assaulted the officer and that both the four-level enhancement

under § 2K2.1(b)(5) and the three-level adjustment under § 3A1.2

were warranted. After considering the advisory guideline range and

the factors set out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2005), the court imposed a sentence of 120 months imprisonment.

          In this appeal, Darden contends that the district court

erred when it increased his offense level by three levels under

§ 3A1.2(b) because his conduct did not create a substantial risk of



to cause bodily injury (i.e., not merely to frighten) with that
weapon; (B) serious bodily injury; or (C) an intent to commit
another felony.”
     3
      While simple assault or pointing a gun at a person is a
misdemeanor, see N.C. Gen. Stat. Ann. §§ 14-33, 14-34 (2005), an
assault on a law enforcement officer with a firearm is a felony.
N.C. Gen. Stat. Ann. § 14-34.5 (2005).

                                  - 4 -
serious bodily injury to the officer who arrested him.      Darden

concedes that he fled from the officer and resisted arrest, but

asserts that he did not point his gun at Officer Brock except

briefly, in the act of throwing the gun away, and that such conduct

does not constitute aggravated assault.    Darden also claims that

the district court failed to adequately resolve the disputed

factual issues, such as whether he pointed the gun at Brock with

the intent to injure him.      Without the contested adjustment,

Darden’s offense level would be 25 and the resulting advisory

guideline range would be 100-125 months.

          We review the district court’s factual finding that

Darden assaulted the officer in a manner that created a substantial

risk of serious bodily injury for clear error.    United States v.

Harrison, 272 F.3d 220, 223 (4th Cir. 2001).   We conclude that the

district court’s determination that an assault occurred and the

adjustment was warranted encompassed the necessary findings that

Brock’s account was credible and that Darden pointed the gun at

Brock.   Although the district court did not determine whether

Darden intended to do harm to Brock or merely to frighten him, we

are satisfied that a confrontation between an armed officer and an

armed suspect who is resisting arrest in which each points a loaded

firearm at the other and the suspect tries to take the officer’s

weapon during a physical struggle presents a substantial risk of

serious bodily injury.


                              - 5 -
           We therefore affirm the sentence imposed by the district

court.   We dispense with oral argument because the 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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