             Case: 15-14001    Date Filed: 03/31/2016   Page: 1 of 4


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-14001
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:15-cr-00030-CB-C-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

CEDRIC DEWAYNE PATTERSON,

                                                            Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                         ________________________

                               (March 31, 2016)

Before MARCUS, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Cedric DeWayne Patterson appeals his 57-month sentence imposed after

pleading guilty to one count of possession of a firearm by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). On appeal, Patterson argues that the district
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court erred by applying a two-level enhancement under U.S.S.G. § 3C1.2 because

his conduct did not rise to the level of recklessly creating a substantial risk of

bodily harm or death. After thorough review, we affirm.

      For appeals of sentencing enhancements, we review factual findings for

clear error, and review de novo the application of those facts to justify a sentencing

enhancement.    United States v. Matchett, 802 F.3d 1185, 1191 (11th Cir. 2015).

For a factual finding to be clearly erroneous, “after reviewing all of the evidence,

[we] must be left with a definite and firm conviction that a mistake has been

committed.” Id. (quotation omitted).

      The Sentencing Guidelines provide that a defendant’s offense level should

be increased by two levels 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.” U.S.S.G. § 3C1.2. To determine whether a “substantial risk

of death or serious bodily injury” exists, § 3C1.2 “requires only that there was a

substantial risk that something could have gone wrong and someone could have

died or been seriously injured.” Matchett, 802 F.3d at 1198. However, “. . . flight

alone is insufficient to warrant an enhancement under this section.” United States

v. Wilson, 392 F.3d 1243, 1247 (11th Cir. 2004).

      In this case, there is sufficient evidence to support the district court’s

conclusion that Patterson was armed with a loaded weapon and had his hand on the


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weapon during an intentional struggle with the police officer. As for Patterson’s

claim that he was not actually reaching for the gun when he resisted arrest, and that

he kept his hands in his pockets where the firearm was located during the ensuing

physical confrontation, we are unpersuaded. Indeed, even under this scenario,

there was a substantial likelihood that the firearm could have discharged, either

accidentally or purposefully, which could have caused severe harm or death. In

Matchett, a substantial risk of death or serious bodily injury was found when the

defendant physically wrestled with the officer for three minutes while a loaded gun

was in his pocket, and the police officer had his hand on the gun trying to get it

away from Matchett. 802 F.3d at 1190. The same risk existed here.

      Patterson attempts to distinguish Matchett, but we disagree.          While the

struggle between the police officers and Patterson did not last nearly as long and

was not described as violently as the struggle in Matchett, the focus in Matchett

was on the dangers resulting from having a loaded gun involved in any physical

struggle -- especially where, as here, the struggle occurred in a residential area

where bystanders could be present. See id. at 1198. Thus, even if Patterson was

not actually reaching for the gun, Patterson had his hand in his pocket where the

gun was located during the physical struggle, and the police officers were reaching

into his pockets to take control of his hands. In an unpredictable scenario like this,

the likelihood that either Patterson, or the police officer attempting to wrest the gun


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away from him, could accidentally discharge the weapon is very high. See id.

(citing United States v. Nava-Sotelo, 354 F.3d 1202, 1203 (10th Cir. 2003). While

Matchett declined to hold that any scenario where a person resisted arrest while in

possession of a loaded gun warrants a § 3C1.2 enhancement, we went on to say

that “. . . . conduct that could potentially harm a police officer or a third party is

sufficiently reckless.” Id. We conclude that Patterson’s conduct rose to that level.

Accordingly, the district court did not err in applying an enhancement under

U.S.S.G. §3C1.2.

      AFFIRMED.




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