                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-5262



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DWAYNE E. SMITH,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (3:06-cr-00198-REP)


Submitted:   July 31, 2007                 Decided:   August 13, 2007


Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Darryl A. Parker, Richmond, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Stephen W. Miller, Assistant
United States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Dwayne E. Smith pled guilty to possession of a firearm by

a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was sentenced

to a term of 115 months imprisonment.   Smith appeals his sentence,

contending that the district court clearly erred in making a

two-level adjustment for reckless endangerment during flight, U.S.

Sentencing Guidelines Manual § 3C1.2 (2005).    We affirm.

           Smith was stopped by Richmond, Virginia, Police Officer

Taylor Sensabaugh for speeding and improper lane change.     After he

learned that Smith’s license was suspended and that warrants were

outstanding for “Dwayne Smith” and “D. Smith,” Sensabaugh asked

Smith to get out of his car.      Smith complied, but rolled up the

windows and locked the car.    Sensabaugh handcuffed him as part of

an investigative detention.   By this time, two backup officers had

arrived.   Sensabaugh told Smith he was going to search the car.

Smith immediately moved toward Sensabaugh and head butted him in

the face. The officers subdued Smith, and Sensabaugh then searched

Smith’s car and found a loaded .40 caliber semiautomatic pistol on

the floor on the driver’s side.

           At sentencing, the district court determined over Smith’s

objection that an adjustment for reckless endangerment applied

because of Smith’s head butt to Officer Sensabaugh. The adjustment

applies “[i]f the defendant recklessly created a substantial risk

of death or serious bodily injury to another person in the course


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of fleeing from a law enforcement officer . . . .”                 The term

“reckless” is defined as conduct “in which the defendant was aware

of the risk created by his conduct and the risk was of such a

nature and degree that to disregard that risk constituted a gross

deviation from the standard of care that a reasonable person would

exercise in such a situation.”         USSG §§ 3C1.2, comment. (n.2),

2A1.4,   comment.   (n.1).   The   term    “during   flight”   encompasses

“preparation for flight” and includes conduct that “occurs in the

course of resisting arrest.”       USSG § 3C1.2, comment. (n.3).         The

court found that a head butt to the face delivered by a man who was

six feet three inches tall and weighed 210 pounds created a

substantial risk of serious injury to the victim’s nose or eyes, or

of extreme pain.    The court also found that Smith was resisting

arrest and likely preparing to flee when he head butted Sensabaugh.

           On   appeal,   Smith    contends   that   application    of   the

enhancement was clearly erroneous because he made no attempt to

flee and because Sensabaugh was not seriously injured.          He further

contends that, because he was handcuffed, he was incapable of

inflicting any serious injury or creating a substantial risk of

death.   The plain language of the guideline and case law mandate

application of the enhancement when the defendant is resisting

arrest and his conduct creates a substantial risk of serious bodily

injury, even though no injury results. See, e.g., United States v.

Jimenez, 323 F.3d 320, 323-24 (5th Cir. 2003); United States v.


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Thomas, 294 F.3d 899, 906-07 (7th Cir. 2002); United States v.

Williams, 254 F.3d 44, 47-48 (2d Cir. 2001).     There is no doubt

that Smith’s head butt created a substantial risk of serious bodily

injury to Sensabaugh.   Moreover, § 3C1.2 has been applied when the

defendant’s conduct occurred while he was resisting arrest, even

though there was little hope of escape or indication that the

defendant was preparing to flee. See United States v. Campbell, 42

F.3d 1199, 1205-06 (9th Cir. 1994) (during twelve-hour standoff,

defendant said he would not be taken and would kill anyone who

tried to arrest him).   Accordingly, we conclude that the district

court’s determination that the enhancement applied was not clearly

erroneous.

           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




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