                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4386


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CLIFTON EARL JOHNSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:10-cr-00234-D-1)


Submitted:   November 30, 2011            Decided:   December 14, 2011


Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, John H. Bennett, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Clifton    Earl    Johnson    appeals    his    108-month      sentence

following his guilty plea to armed bank robbery. ∗                       He contends

that the district court erred by enhancing his sentence by six

offense levels for creating a substantial risk of bodily harm to

a law enforcement officer, United States Sentencing Commission

Guidelines Manual § 3A2.1 (2010), and by also imposing a two-

level enhancement for reckless endangerment during flight.                           We

affirm.

                Johnson first asserts that the district court erred by

applying        the     six-level       enhancement    for     assault    on    a    law

enforcement officer.              Johnson does not contest that he assaulted

a person by pointing his firearm at him during his flight from

the bank, but he challenges the enhancement on the ground that

there was no evidence that he knew or had reason to believe that

the person at whom he pointed his gun was a police officer.

                The six-level enhancement is applied if, “in a manner

creating        a   substantial      risk    of   serious      bodily    injury,    the

defendant . . . knowingly or having reasonable cause to believe

that       a   person   was   a   law    enforcement    officer,    assaulted       such


       ∗
       Johnson also pled guilty to using or carrying a firearm
during and in relation to a crime of violence, and was sentenced
to a consecutive sentence of 84 months.   He does not challenge
this sentence on appeal.



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officer during the course of the offense or immediate flight

therefrom.”        USSG § 3A1.2(c)(1).          The district court reviewed a

statement Johnson made upon his arrest, in which Johnson stated

that, after he exited the bank, he “saw an unmarked police car

coming towards [him].           The officer jumped out of the car and

fired two shots at [him].             [He] had the gun in [his] hand at

[his] side.        [He] asked him why he was shooting at [him].                    The

officer told [him] to get down.                 [He] told [the officer] that

[he] had a bad knee and could not.               The officer fired three more

shots.      [He] brought the gun up.”

              The court made the factual determination that, based

on   this    statement,     Johnson     “knew    or   had   reasonable   cause     to

believe     that    the    person   who   was    in   the   vehicle   was     a   law

enforcement officer.”          The court found that the enhancement was

appropriately applied.

              We find no clear error in the district court’s factual

finding that Johnson, at the time of the conduct, knew or had

reason to believe that the person at whom he pointed his weapon

was a law enforcement officer.                United States v. Hampton, 628

F.3d 654, 659 (4th Cir. 2010); see United States v. McAllister,

272 F.3d 228, 234 (4th Cir. 2001).                    We therefore uphold the

imposition     of    the    six-level     sentence     enhancement    under       USSG

§ 3A1.2(c)(1).       See Hampton, 628 F.3d at 659.



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              Johnson next contends that the district court erred by

applying      the    two-level     enhancement           for    reckless      endangerment

during     flight,     in   addition     to       the    six    levels      added    for    the

assault on the law enforcement officer.                        Because Johnson did not

raise this issue in the district court, we review the claim for

plain error.         Fed. R. Crim. P. 52(b); United States v. Lynn, 592

F.3d   572,    580     (4th   Cir.      2010).          To     establish     plain    error,

Johnson must show that error occurred, the error was plain, and

the error affected his substantial rights.                              United States v.

Moussaoui, 591 F.3d 263, 295 (4th Cir. 2010).                              Even if Johnson

establishes       that   there    was    plain      error,          “the   court    will    not

‘correct      the    forfeited     error      .     .     .    unless      [it]     seriously

affect[s]      the     fairness,     integrity           or     public      reputation       of

judicial proceedings.’”              Id. (quoting United States v. Olano,

507 U.S. 725, 731-32 (1993)).

              Section 3C1.2 provides for a two-level enhancement “if

the defendant recklessly created a substantial risk of death or

serious bodily injury to another person in the course of fleeing

from   a    law     enforcement      officer.”               USSG    § 3C1.2.        Johnson

contends that the application of both enhancements is contrary

to   the   Guidelines       and   this    court’s         precedent.          He    cites    to

Application Note 1 of § 3C1.2, which provides that the reckless

endangerment         enhancement        should          not     apply      when      “another

adjustment in Chapter Three, results in an equivalent or greater

                                              4
increase     in    offense       level     solely     on   the   basis     of    the    same

conduct.”         USSG § 3C1.2, comment. (n.1); see United States v.

Sloley, 19 F.3d 149, 154 (4th Cir. 1994).                        However, this court

has   held     that      both    the    § 3A1.2      enhancement     and   the    § 3C1.2

enhancement may be applied if “each is triggered by separate

conduct.”         United States v. Harrison, 272 F.3d 220, 223 (4th

Cir. 2001).

             The district court found that both enhancements were

appropriate.          Johnson’s conduct of pointing his firearm at the

police officer constituted an assault on the law enforcement

officer,     justifying          the    six-level      enhancement     under      § 3A1.2.

See N.C. Gen. Stat. § 14.34 (2009).                        His failure to obey the

officer’s repeated commands to drop his weapon resulted in the

officer firing his weapon at least four times.                        Thus, by failing

to    comply      with     the    officer’s         directive,      Johnson     committed

separate conduct that created a “substantial risk of death or

serious bodily injury” to the officer or to any other person in

the area of the bank.             The district court did not clearly err in

determining that the conduct that amounted to an assault was

separate     and    distinct       from    the      conduct   that    resulted     in    the

officer      firing       his      weapon,         which   thereby     justified         the

additional      enhancement        under       § 3C1.2.       See    United     States    v.

Alicea, 205 F.3d 480, 486 (1st Cir. 2000) (holding that high

speed   chase      and    shots        fired   at    pursuing    officers       separately

                                               5
endangered      police    and    public,       justifying   both   enhancements);

United States v. Matos-Rodriguez, 188 F.3d 1300, 1312 (11th Cir.

1999).

            Having discovered no error, much less plain error in

the district court’s application of both the § 3A2.1 enhancement

and the § 3C1.2 enhancement, we affirm the 108-month sentence

imposed    on   Johnson    for     the   armed    bank   robbery   offense.     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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