                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4728



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ROZELL ALONZA JOHNSON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-04-40)


Submitted:   June 9, 2006                 Decided:   August 30, 2006


Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


L. Richard Walker, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Rozell Alonza Johnson appeals the 292-month sentence

imposed    by    the    district   court   after   Johnson   pled    guilty    to

conspiracy to possess with intent to distribute and to distribute

fifty grams or more of crack cocaine, in violation of 21 U.S.C.

§ 846 (2000); possession with intent to distribute 108 grams of

crack, in violation of 21 U.S.C. § 841(a)(1) (2000), and 18 U.S.C.

§ 2 (2000); and possession with intent to distribute 129 grams of

cocaine, in violation of § 841(a)(1) and § 2.            On appeal, Johnson

asserts that the district court erred by applying a two-level

upward adjustment under U.S. Sentencing Guidelines Manual § 3C1.2

(2004), for reckless endangerment during flight, and that the court

erred by refusing to award a downward adjustment under USSG § 3E1.1

for acceptance of responsibility.           We affirm.

            In a post-Booker* sentencing like Johnson’s, a district

court must calculate the applicable guideline range after making

the appropriate findings of fact, consider the range in conjunction

with other relevant factors under the guidelines and 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2006), and impose a sentence.               United

States v. Moreland, 437 F.3d 424, 432 (4th Cir.) (citing United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)), cert. denied,

126   S.   Ct.   2054    (2006).     The   sentence   must   be   “within     the

statutorily prescribed range and . . . reasonable.”                 Hughes, 401


      *
       United States v. Booker, 543 U.S. 220 (2005).

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F.3d at 546-47 (citations omitted).              In reviewing the calculation

of the advisory sentencing guideline range, this court “review[s]

the district court’s legal conclusions de novo and its factual

findings for clear error.” United States v. Hampton, 441 F.3d 284,

287 (4th Cir. 2006).

          Johnson asserts on appeal that the district court erred

in failing to apply a two-level downward adjustment for acceptance

of responsibility.     We review a district court’s decision to grant

or deny an adjustment for acceptance of responsibility for clear

error.   United States v. May, 359 F.3d 683, 688 (4th Cir. 2004)

(citing United States v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999)).

Our review of the record convinces us that the district court did

not   clearly    err    in     refusing     to     apply   an   acceptance    of

responsibility downward adjustment.

          Johnson also challenges the district court’s application

of the upward adjustment for reckless endangerment during flight.

He contends that his flight from police was not reckless because he

was merely a passenger in the car that hit an officer’s unmarked

vehicle and there was no evidence that he knew his co-defendant

would hit the officer’s car.               Because Johnson challenges the

application     of   the     reckless    endangerment      adjustment   to   the

undisputed facts of his case, our review is de novo.              See Hampton,

441 F.3d at 287; United States v. Butner, 277 F.3d 481, 487-88 (4th




                                        - 3 -
Cir. 2002) (reviewing de novo legal ruling based upon undisputed

facts).

           An adjustment under § 3C1.2 is warranted “[i]f 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.        In making this

determination, the normal scope of relevant conduct described in

USSG § 1B1.3 is narrowed by USSG § 3C1.2 cmt. n.5.         A defendant “is

accountable only for his own conduct and for conduct that he aided

or abetted, counseled, commanded, induced, procured, or willfully

caused.”   USSG § 3C1.2 cmt. n.5.         Because Application Note 5 to

§ 3C1.2 “limits the defendant’s responsibility for the actions of

another,” this court has held that “some form of direct or active

participation” on the part of the defendant is necessary for

§ 3C1.2 to apply when the reckless flight is the result of another

person’s action.   United States v. Chong, 285 F.3d 343, 346 (4th

Cir. 2002) (internal quotation marks and citation omitted).

           Assuming, without deciding, that the district court may

have erred in applying the two-level upward adjustment under USSG

§ 3C1.2, we find that any error is harmless.           Without the § 3C1.2

adjustment,   Johnson’s   total    offense     level    would     have    been

thirty-six.    With   a   criminal   history    category     of    III,    the

applicable advisory guideline range would have been 235 to 293

months of imprisonment.   Johnson’s 292-month sentence falls within


                                  - 4 -
that range.    See United States v. Mashek, 406 F.3d 1012, 1017 (8th

Cir.   2005)   (“[T]here   may     be   situations     where   an    error    in

calculating the appropriate guidelines range is harmless and,

therefore, does not require immediate remand[,] [such as] where the

resulting sentence lies in the overlap between the correct and

incorrect guidelines ranges.”) (citations omitted).

            Accordingly, we affirm Johnson’s sentence.          We deny the

motion to relieve counsel and 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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