                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-3748
                                  ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
v.                                     * District Court for the
                                       * Western District of Missouri.
Phillip D. Hill,                       *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: September 25, 2009
                                Filed: October 22, 2009
                                 ___________

Before MELLOY, GRUENDER, and BENTON, Circuit Judges.
                          ___________

MELLOY, Circuit Judge.

      Following a plea of guilty, Phillip D. Hill was convicted of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court1
sentenced Hill to 78 months’ imprisonment. Hill appeals his sentence, arguing that
the district court improperly applied enhancements under the U.S. Sentencing
Guidelines (“USSG”) §§ 2K2.1(b)(6) and 3A1.2(c). We affirm.




      1
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
                                          I.

       In the early morning hours of February 2, 2008, Hill was a passenger in a black
Pontiac Grand Am traveling on Interstate 70 in Kansas City, Missouri, at a high rate
of speed and without its lights on. Two police officers patrolling the interstate in a
police car observed the Grand Am and recognized it as matching the description of a
vehicle that had refused to stop for another police officer earlier that night. The
officers began driving in the Grand Am’s general direction and observed that the
Grand Am had been involved in a one-car accident.

       The driver of the car and Hill fled from the wrecked car in different directions.
Kansas City Police Officer Mark Smith exited the police car and yelled at Hill to stop,
but Hill continued running. Officer Smith pursued Hill up several embankments on
the side of the interstate. During the chase, Hill turned toward Officer Smith at least
three times, squared his body, and unsuccessfully attempted to draw an object from
his waistband. Officer Smith could not discern what was in Hill’s waistband, but each
time that Hill turned around and attempted to retrieve something from his waistband,
Officer Smith “drew down” on his firearm and verbally ordered Hill onto the ground.
Hill did not obey those commands. Eventually, Officer Smith caught up to Hill and
took him to the ground. Officer Smith pinned Hill on the ground and restrained Hill’s
hands until Smith’s partner arrived, at which point the officers attempted to place Hill
into handcuffs. Hill physically resisted the officers and made several unsuccessful
attempts to retrieve something from his waistband. During the struggle, a Smith &
Wesson .41 caliber large frame revolver fell out of Hill’s waistband onto the
pavement. The revolver had a six- to seven-inch barrel and was loaded with four
rounds. Neither officer was injured during this incident.

      Hill was indicted for being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g) and 924(a)(2). Hill pled guilty to the one-count indictment on June
6, 2008. Following Hill’s conviction, the U.S. Probation Office prepared a

                                          -2-
Presentence Investigation Report (“PSR”), which calculated Hill’s total offense level
at 21. Hill’s base offense level was 14 pursuant to USSG § 2K2.1(a)(6). The PSR
recommended a four-level enhancement under USSG § 2K.1(b)(6) because Hill
possessed a firearm in connection with felony resisting arrest. The PSR also
recommended a six-level enhancement under USSG § 3A1.2(c)(1) because Hill
assaulted a law enforcement officer in a manner that created a substantial risk of
serious bodily injury. Lastly, the PSR recommended a three-level reduction under
USSG § 3E1.1(a) due to Hill’s acceptance of responsibility.

      Hill objected to the recommended enhancements in the PSR. The district court
overruled Hill’s objections and adopted the PSR’s recommended adjustments. Hill
had a category-V criminal history, placing him in a sentencing range of 70 to 87
months under the Guidelines. The district court sentenced Hill to a term of
imprisonment of 78 months.

                                          II.

       Hill argues on appeal that the district court erred by applying the four-level and
six-level enhancements. We review de novo the “legal conclusions a district court
reaches in order to apply an enhancement for purposes of calculating an advisory
guidelines range . . . while the factual findings underpinning the enhancement are
reviewed for clear error.” United States v. Septon, 557 F.3d 934, 936 (8th Cir. 2009).

                                          A.

       The Sentencing Guidelines provide a four-level enhancement “[i]f the defendant
used or possessed any firearm or ammunition in connection with another felony
offense.” USSG Manual § 2K2.1(b)(6) (2007). “Another felony offense” is defined
as “any federal, state, or local offense, other than the explosive or firearms possession
or trafficking offense, punishable by imprisonment for a term exceeding one year,

                                          -3-
regardless of whether a criminal charge was brought, or a conviction obtained.” Id.
§ 2K2.1 cmt. n.14(C). The PSR recommended a four-level enhancement under §
2K2.1(b)(6) because Hill committed felony resisting arrest in connection with his
possession of a firearm. In support of the § 2K2.1(b)(6) enhancement, the district
court found that Hill “clearly attempted to draw a firearm in an effort to use that
firearm in furtherance of resisting his arrest.” Hill argues that the district court erred
when by concluding that he committed felony resisting arrest.

       Under Missouri law, it is a class D felony to “[r]esist[] an arrest, detention or
stop by fleeing in such a manner that the person fleeing creates a substantial risk of
serious physical injury or death to any person.” Mo. Rev. Stat. § 575.150(5). Hill
argues that his conduct did not create a “substantial risk of serious physical injury or
death” because he did not draw, point, or fire his weapon, and the officers were not
injured. According to Hill, he did not commit felony resisting arrest because the risk
of injury or death was too speculative. We disagree.

       There is sufficient evidence in the record that Hill’s actions created a substantial
risk of serious physical injury or death. First, Hill attempted to retrieve his firearm
from his waistband at least three times when he stopped and squared his body toward
the pursuing officer.2 Hill’s conduct substantially increased the risk of serious
physical injury and death to Officer Smith. See United States v. Easter, 553 F.3d 519,
524 (7th Cir. 2009) (“[S]imply reaching for a loaded gun is enough to create a
substantial risk of serious bodily injury to another person.”). Hill’s conduct also
created a “substantial risk of physical injury and death” to himself, as evidenced by
the undisputed fact that Officer Smith reacted by drawing his firearm. See United
States v. Lee, 199 F.3d 16, 17 (1st Cir. 1999) (“[W]hatever [the defendant’s] purpose,
his efforts to seize his gun did create a substantial risk of bodily injury, whether from

      2
       The district court credited Officer Smith’s testimony as to these facts, and we
do not find any evidence to suggest that the district court’s finding was clearly
erroneous.

                                           -4-
accidental discharge or the threat of fire from the police.”). Indeed, the risk of harm
to Officer Smith and Hill was substantial despite the fact that no one was injured. Cf.
United States v. Williams, 278 F. App’x 279, 281 (4th Cir. 2008) (per curiam)
(unpublished) (“Both the plain language of [USSG § 3C1.2] and case law mandate
application of the adjustment when the defendant is resisting arrest and his conduct
creates a substantial risk of serious bodily injury, even though no injury results.”).

        Additionally, Officer Smith testified that Hill attempted to retrieve his firearm
from his waistband after Officer Smith tackled him. In United States v. Bates, 561
F.3d 754 (8th Cir. 2009), the evidence showed that the defendant, “while armed with
a loaded weapon, intentionally struggled on the ground with the officer and
continually reached toward his waistband during the altercation.” Id. at 757. Those
facts were sufficient to affirm the district court’s conclusion that the defendant
recklessly created a “substantial risk of death or serious bodily injury to another
person.” Id. at 756–57. The facts here are strikingly similar, and therefore Bates is
persuasive.3 See also Williams, 278 F. App’x at 281 (“A struggle in which all the
parties are armed carries an obvious risk that the struggle might escalate to the point
that a firearm is used, or discharges accidentally.”); United States v. Bowie, 198 F.3d
905, 913 (D.C. Cir. 1999) (holding that defendant’s attempts to reach for a loaded
firearm in his waistband during a struggle with police officers created a substantial
risk of serious bodily injury); United States v. Weaver, 8 F.3d 1240, 1245 (7th Cir.
1993) (holding that defendant’s efforts to reach inside his jacket for a loaded firearm
provided a sufficient basis for concluding that defendant created “substantial risk of
serious bodily injury to the officers”).


      3
        Bates is not binding precedent because the legal issue was different. In Bates,
we affirmed a two-level reckless endangerment enhancement under USSG § 3C1.2.
However, Bates is persuasive because the standard for a § 3C1.2 enhancement (“If the
defendant recklessly created a substantial risk of death or serious bodily injury . . .”)
is nearly identical to the standard for felony resisting arrest. See Mo. Rev. Stat. §
575.150.

                                          -5-
         In support of his argument, Hill cites Bell v. Kentucky, 122 S.W.3d 490 (Ky.
2004), in which the Supreme Court of Kentucky determined as a matter of law that a
criminal defendant did not create a substantial risk of death or serious bodily injury
when he discarded a loaded handgun during a foot chase by a police officer. Id. at
498–99. We agree with the court in Bell when it noted, “Whether a defendant's act
. . . creates ‘a substantial risk of death or serious physical injury’ will, of course, turn
on the unique circumstances of an individual case." Id. at 497. Importantly, the
defendant in Bell did not turn and square off with the pursuing officer. Also, the risk
of armed confrontation was much lower in Bell because the police officer never drew
his weapon or believed that he was authorized to do so. Id. at 499. As such, Bell is
not helpful for the “unique circumstances” of this case.

       We conclude that Hill committed felony resisting arrest because Hill’s attempts
to retrieve his loaded firearm during the struggle with police officers created a
substantial risk of serious physical injury or death to himself and the officers.
Accordingly, the district court did not err in applying a four-level enhancement under
USSG § 2K2.1(b)(6).

                                            B.

       A six-level sentence enhancement applies when the defendant assaults a person
they know or have reasonable cause to believe is a law enforcement officer during the
course of an offense or immediate flight therefrom “in a manner creating a substantial
risk of serious bodily injury.” USSG Manual § 3A1.2(b). This section “applies in
circumstances tantamount to aggravated assault . . . against a law enforcement
officer.” Id. § 3A1.2 cmt. n.4. The PSR recommended this enhancement based on
Hill’s unsuccessful attempts to retrieve the firearm during the foot chase and after
Officer Smith tackled him—that is, the same actions that justified the § 2K2.1(b)(6)
enhancement. Over Hill’s objection, the district court adopted the PSR’s
recommendation and stated its factual findings in support:

                                            -6-
      [T]he defendant was attempting to draw a weapon in order to discharge
      that weapon at the officer given the manner in which these events
      occurred. The defendant stopping, turning towards the officer as he
      attempted to draw the weapon creates a clear inference that the defendant
      was attempting to use that weapon against the officer and that he would
      have done so had he been successful in extracting that weapon from his
      waistband. If the defendant was merely trying to discard that weapon,
      the defendant would not have needed to stop to turn towards the officer
      in his effort to withdraw that weapon. Rather the defendant would have
      more likely merely attempted to draw that weapon as he ran away from
      the officer to throw it off so that it would not be found on him when --
      if and when he was ultimately apprehended.

Upon careful review, we believe these factual determinations are not clearly
erroneous. Based on these findings, we conclude that Hill’s actions were assaultive
in nature.

       Hill’s challenge to the six-level official-victim enhancement again boils down
to the contention that his actions did not create a “substantial risk of serious bodily
injury.” Hill cites United States v. Iron Cloud, 75 F.3d 386 (8th Cir. 1996), in support
of his argument. In Iron Cloud, this Court vacated a sentence based on the improper
application of an official victim enhancement where a defendant resisted arrest and
the police officer had to draw his firearm and use all of his strength to arrest the
defendant. Id. at 390. Iron Cloud does not control the outcome in this case, however,
because the defendant in Iron Cloud did not have a firearm and never even assaulted
the police officers. Id. In this case, Hill’s actions were assaultive, and as we explained
with greater detail in the previous section, Hill’s repeated attempts to retrieve a
firearm from his waistband created a substantial risk of serious bodily injury to
Officer Smith. See Bates, 561 F.3d at 757; Easter, 553 F.3d at 524; Williams, 278 F.
App'x at 281; Bowie, 198 F.3d at 913; Weaver, 8 F.3d at 1245. Therefore, we find no
error in the district court’s application of a six-level enhancement under USSG §
3A1.2(b).

                                           -7-
                                         III.

       Alternatively, Hill contends that “the district court erred in impermissibly
‘double-counting’ when it applied two sentence enhancements which both stemmed
from the single act [of Hill] attempting to ‘draw’ his weapon while fleeing from the
officer.” We review de novo whether a district court impermissibly double counted
in applying the sentencing guidelines. United States v. Hipenbecker, 115 F.3d 581,
583 (8th Cir. 1997). “Double counting occurs when one part of the Guidelines is
applied to increase a defendant's punishment on account of a kind of harm that has
already been fully accounted for by application of another part of the Guidelines.”
United States v. Hedger, 354 F.3d 792, 793 (8th Cir. 2004) (citations and quotation
marks omitted). Double counting may be allowed, however, where “(1) the
Sentencing Commission intended the result and (2) each statutory section concerns
conceptually separate notions relating to sentencing.” Id. at 794 (internal quotations
omitted).

       In United States v. Fleming, 8 F.3d 1264 (8th Cir. 1993), without considering
the double counting issue, we approved the use of enhancements under §§ 2K2.1 and
3A1.2 based upon a fleeing defendant's act of shooting at an officer while possessing
a firearm. Id. at 1266–67.4 In a more recent per curiam opinion, we relied on Fleming
to reject the argument that cumulative enhancements under §§ 2K2.1 and 3A1.2
constitute impermissible double counting. United States v. Brown, 252 F. App’x 119,
120 (8th Cir. 2007) (per curiam) (unpublished); see also United States v. Fisher, 502
F.3d 293, 309 (3d Cir. 2007); United States v. Banos-Olmedo, 144 F. App’x 297, 298
(4th Cir. 2005) (per curiam) (unpublished); United States v. Coldren, 359 F.3d 1253,




      4
       See also Bowie, 198 F.3d at 913 (approving similar enhancements without
addressing a double counting objection); United States v. Campbell, 209 F. App’x
541, 543–44 (7th Cir. 2006) (unpublished) (same).

                                         -8-
1256–57 (10th Cir. 2004); United States v. Jackson, 276 F.3d 1231, 1231 (11th Cir.
2001). For a couple of reasons, we see no need to reconsider those decisions.



       First of all, the Sentencing Commission intended the §§ 2K2.1 and 3A1.2
enhancements to be cumulative. The Sentencing Guidelines Manual acknowledges
that enhancements under Chapter Two and adjustments under Chapter Three “are to
be applied cumulatively” even though they “may be triggered by the same conduct.”
USSG Manual § 1B1.1 cmt. n.4(B). “For example, shooting a police officer during
the commission of a robbery may warrant an injury enhancement under § 2B3.1(b)(3)
and an official victim adjustment under § 3A1.2, even though the enhancement and
the adjustment both are triggered by the shooting of the officer.” Id. Whereas the
Sentencing Guidelines Manual explicitly declares when double counting is
impermissible in other situations, see, e.g., id. § 3C1.2 cmt. n.1 (prohibiting the
application of a reckless-endangerment enhancement “where the offense guideline in
Chapter Two, or another adjustment in Chapter Three, results in an equivalent or
greater increase in offense level solely on the basis of the same conduct”), the Manual
does not prohibit the cumulative application of USSG §§ 2K2.1(b)(6) and 3A1.2(b).
Second, the §§ 2K2.1 and 3A1.2 enhancements may be applied cumulatively because
they are based on distinct aspects of Hill’s conduct. See United States v. Zech, 553
F.3d 663, 668 (8th Cir. 2009) (per curiam) (approving cumulative application of two
enhancements because the guidelines “address conceptually separate sentencing
notions”). The § 2K2.1 enhancement addresses the connection between a felony and
use of a firearm, whereas the § 3A1.2 adjustment concerns the identity of the victim
of Hill’s assaultive conduct. Cf. United States v. Joiner, 418 F.3d 863, 870 (8th Cir.
2005) (holding that double counting was permissible because official victim
adjustment addressed a different consideration from the guideline for obstruction of
justice offenses).




                                         -9-
     Accordingly, we hold that the cumulative enhancements under USSG §§
2K2.1(b)(6) or 3A1.2(b) did not constitute impermissible double counting.

                                   IV.

     For the foregoing reasons, we affirm.
                     ______________________________




                                  -10-
