                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4299


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

RASHAWN LAMAR OWENS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (7:08-cr-00095-BO-1)


Submitted:    December 11, 2009             Decided:   January 4, 2010


Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Rashawn Lamar Owens 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 110 months imprisonment.                                Owens

appeals his sentence, contending that the district court erred

in    giving     a    four-level       increase        for    use    of    a   firearm    in

connection       with        another   felony,      U.S.       Sentencing       Guidelines

Manual § 2K2.1(b)(6) (2008), and plainly erred in adopting the

enhanced      base    offense     level      of   24    under       USSG   § 2K2.1(a)(2),

based    in    part     on    Owens’   prior      North      Carolina      conviction    for

speeding to elude arrest.              We affirm.

               Owens was arrested after narcotics officers executed a

search warrant at a hotel room in Jacksonville, North Carolina.

Owens was not a suspect in the drug investigation, but when the

officers entered the hotel room, Owens was seated in a chair

with a 9mm pistol pointed at the officers.                           In the presentence

report, the probation officer recommended a four-level increase

for use of a firearm in connection with another felony, i.e.,

assault on the law enforcement officers by pointing the gun at

them.     At sentencing, Owens insisted that he did not commit an

assault       because    he     did    not   realize         the    officers    were     law

enforcement officers and thought he was being robbed.                              One of

the     arresting       officers       testified        at    sentencing       that      they

announced their presence and identity loudly and knocked before

                                              2
opening the door, that they were wearing clothing that clearly

identified           them   as   law   enforcement    officers,       and   that   Owens

dropped the gun only after he was ordered to do so three times.

The    district        court     summarily     overruled     Owens’     objection    and

applied the enhancement.

                Whether a defendant has actually possessed a firearm

in connection with another felony offense is a factual question.

United States v. Garnett, 243 F.3d 824, 829 (4th Cir. 2001).

Accordingly,          the   district       court’s   decision   to     enhance     Owens’

offense level pursuant to § 2K2.1(b)(6) is reviewed for clear

error.         United States v. Osborne, 514 F.3d 377, 387 (4th Cir.),

cert. denied, 128 S. Ct. 2525 (2008).                    Owens suggests that the

district court wrongly assumed that pointing a firearm at a law

enforcement           officer     is   a    felony   under     North    Carolina     law

regardless of whether the defendant knew the law enforcement

officer was in fact a law enforcement officer. 1                         See State v.

Avery, 337 S.E.2d 786, 803 (N.C. 1985) (holding that “knowledge

is an essential element of the crime of assault with a firearm

upon       a   law    enforcement      officer”).      Owens    bases    his   argument


       1
       Under N.C. Gen. Stat. § 14-34.2 (LexisNexis 2007), an
assault with a firearm on a law enforcement officer in the
performance of his duties is a Class F felony.    An assault by
pointing a gun “at any person,” is a Class A1 misdemeanor under
N.C. Gen. Stat. § 14-34, and a simple assault is a Class 2
misdemeanor. N.C. Gen. Stat. § 14-33 (LexisNexis 2007).



                                              3
primarily         on     the     brevity         of       the     district       court’s      ruling,

contending        that        the    district             court    did     not     find      that   he

knowingly pointed a gun at the officers.                                  He also argues that

the officer’s testimony was insufficient to support the enhanced

base offense level because it did not establish how long it took

him    to    recognize           that      he     was       confronting          law    enforcement

officers.         However, we agree with the government’s position that

the only question before the district court at sentencing was

whether      Owens       knew       that    he        was       pointing     his       gun    at    law

enforcement officers.                Therefore, the district court’s denial of

Owens’ objection constituted a ruling that he pointed the gun

with knowledge that the persons entering the hotel room were law

enforcement officers.

             Owens           contends      that       we    are    precluded       from      reaching

this conclusion, relying on United States v. Carter, 564 F.3d

325, 329 (4th Cir. 2009), in which we noted that “the Supreme

Court’s     recent           sentencing     jurisprudence            plainly       precludes        any

presumption that, when imposing a sentence, the district court

has silently adopted arguments presented by a party.”                                        However,

in Carter, the issue was the district court’s failure to provide

a specific explanation for a below-guideline sentence.                                       We held

that   the    sentence           was    procedurally              unreasonable         because      the

record      did        not     reveal      the        sentencing         court’s       reasons      for

choosing the sentence it imposed.                            Id. at 330.          By contrast, a

                                                      4
narrow   issue   was   before    the   district    court   and    the    court’s

ruling was clearly a rejection of Owens’ claim that he did not

know he was pointing a gun at police.             Although a more complete

explanation would have been preferable, the court’s ruling was

adequate under the circumstances.

            In addition, the officer’s testimony was sufficient to

establish by a preponderance of the evidence that Owens had time

to recognize the men entering the room as police.                     See United

States v. Jeffers, 570 F.3d 557, 570 (4th Cir. 2009) (stating

standard of review).      Here, the information before the district

court was sufficient to support its finding by a preponderance

of the evidence.

            Owens did not challenge his base offense level of 24

in the district court and thus his challenge to it is reviewed

for plain error.       United States v. Hughes, 401 F.3d 540, 547

(4th Cir. 2005).       Under the plain error test, United States v.

Olano, 507 U.S. 725, 732-37 (1993), a defendant must show that

(1) error occurred; (2) the error was plain; and (3) the error

affected his substantial rights.           Id. at 732.      Even when these

conditions are satisfied, this court may exercise its discretion

to notice the error only if the error “seriously affect[s] the

fairness,     integrity     or     public     reputation         of     judicial

proceedings.”    Id. (internal quotation marks omitted).



                                       5
              A     base       offense     level      of        24    is     applied      under

§ 2K2.1(a)(2)           if    the   defendant    committed           the    instant    offense

after being convicted of two felony offenses that are either a

crime of violence or a controlled substance offense.                                  A “crime

of violence,” as used here, see § 2K2.1 cmt. n.1, is defined in

USSG § 4B1.2(a) as –

       [A]ny offense under federal or state law, punishable
       by imprisonment for a term exceeding one year, that –

       (1) has as an element the use attempted use, or
       threatened use of physical force against the person of
       another, or

       (2) is burglary of a dwelling, arson, or extortion,
       involves use of explosives, or otherwise involves
       conduct that presents a serious potential risk of
       physical injury to another.

              Owens          claims   that      the   district             court   erred     in

accepting         the    probation       officer’s     calculation            of   the     base

offense level at 24, based in part on his prior North Carolina

felony conviction for eluding arrest with a motor vehicle with

three aggravating factors, in light of Begay v. United States,

128 S. Ct. 1581, 1585 (2008) (holding that a crime of violence

under the “otherwise” clause in 18 U.S.C. § 924(e) (2006), which

mirrors the language in § 4B1.2(a)(2), must be “roughly similar,

in kind as well as in degree of risk posed,” to the enumerated

crimes), and United States v. Roseboro, 551 F.3d 226 (4th Cir.

2009) (holding that test applied in United States v. James, 337

F.3d   387,       390-91       (4th   Cir.   2003),        is    no    longer      good    law;


                                             6
applying Begay).          He also relies on Chambers v. United States,

129 S. Ct. 687 (2009) (holding that the crime of failing to

report for confinement is not a “violent felony” under the Armed

Career Criminal Act, 18 U.S.C. § 924(e)).

               In Roseboro, we held that “the proper inquiry focuses

on the similarity between the prior crime and the enumerated

crimes    in     § 924(e)(2)(B)(ii),         asking       whether      the   prior    crime

involved       purposeful,      violent,         and   aggressive        conduct,     which

would demonstrate a likelihood that the defendant would use a

firearm during the commission of a crime.”                         Roseboro, 551 F.3d

at   234.        We    further    held      that       “[t]he    intentional        act    of

disobeying a law enforcement officer by refusing to stop for his

blue     light    signal,      without      justification,          is    inherently       an

aggressive and violent act.”             Id. at 240.            Roseboro decided that

a South Carolina conviction for failure to stop for a blue light

was not categorically a “violent felony” under § 924(e) or a

crime    of    violence       under   the    guidelines          because     it    did    not

require the government to prove that the defendant’s failure to

stop was intentional.             Id. at 240-41.                However, we noted in

Roseboro that the North Carolina speeding to elude statute at

issue in this case, N.C. Gen. Stat. § 20-141.5, is one that does

“require       that     the   failure       to     stop    for     a     blue     light    be

purposeful.”          Roseboro, 551 F.3d at 236, 239 & n.5.                     Thus, under

Roseboro, the district court did not err, or plainly err, in

                                             7
accepting the probation officer’s recommendation to treat Owens’

prior felony speeding to elude conviction as a crime of violence

and applying the enhanced base offense level in § 2K2.1(a)(2). 2

               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




     2
       Owens maintains that Chambers v. United States, 129 S. Ct.
687 (2009), prohibits a sentencing court from assuming that a
prior offense involves conduct that presents serious potential
risk to others, given that the Supreme Court in Chambers relied
on statistical analysis rather than “assumptions about inherent
risks” to reach its decision.        We are not persuaded that
Chambers requires a reexamination of this aspect of Roseboro.



                                          8
