                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4266


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CARLOS ANTONIO RILEY, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cr-00122-TDS-1)


Submitted:   January 20, 2015              Decided:   February 3, 2015


Before KEENAN, WYNN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant.       Ripley Rand,
United States Attorney, Kyle D. Pousson, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Carlos Antonio Riley, Jr., pleaded guilty to one count

of being a felon in possession of a firearm, in violation of 18

U.S.C.    §§     922(g)(1),           924(a)(2)         (2012).             The       conviction          was

predicated on an altercation between Riley and a law enforcement

officer; during the altercation, Riley obtained the officer’s

firearm and shot him in the leg.                            Riley was sentenced to the

statutory maximum of ten years’ imprisonment, which was also the

Sentencing       Guidelines           range.        On      appeal,         Riley          raises     three

challenges          to     the     calculation         of     his     Sentencing                Guidelines

range,    and        he    contests        the    reasonableness                 of       his   sentence.

Finding no error, we affirm.

               We         review      Riley’s          sentence            for        reasonableness,

applying       an     abuse      of      discretion         standard.             Gall          v.   United

States,        552       U.S.      38,    51     (2007).              We     first          review        for

“significant             procedural        error[s],”            including,                among      other

things, whether the Guidelines range was calculated incorrectly.

Id.      When       reviewing       the    district         court’s         application              of   the

Guidelines,          we    review        findings      of     fact     for        clear         error     and

questions of law de novo.                      United States v. Strieper, 666 F.3d

288,     292    (4th        Cir.      2012).           Only      if    we        find       a    sentence

procedurally             reasonable        will        we     consider            whether            it    is

substantively             reasonable.            Id.        We    presume             a    sentence        is

substantively reasonable if it is imposed within the properly

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calculated Guidelines range.               See United States v. Louthian, 756

F.3d 295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).

This presumption may only be rebutted with a showing that the

sentence is unreasonable when measured against the 18 U.S.C.

§ 3553(a) (2012) factors.           Id.

           In his first sentencing challenge, Riley claims that

the   district    court     erred     in    crediting      the    testimony     of    the

police officer and in finding that Riley’s firearms offense was

related to an underlying robbery offense.                        The calculation of

Riley’s   offense      level     began       with    the     application       of    U.S.

Sentencing    Guidelines       Manual      (USSG)    § 2K2.1(c)(1)       (2012),      the

Guideline applicable to offenses involving unlawful possession

of firearms.      Because Riley’s firearms offense was committed in

connection with another offense, section 2K1.1(c)(1)(A) provides

a   cross-reference       to   USSG    § 2X1.1.           That   section,      in    turn,

directs application of the base offense level for the underlying

substantive      offense.       The       substantive       offense     used    by    the

probation officer in formulating the presentence report (PSR)

was robbery.     See   USSG § 2B3.1.

           When    determining        whether       the    underlying    offense      was

indeed robbery, the district court considered the testimony of

both Riley and the law enforcement officer.                      The court credited

the officer’s testimony, finding that Riley took the firearm

away from the officer after a struggle, put a magazine into the

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firearm,      chambered    a     round,    and    pointed      the   firearm   at   the

officer.        Riley argues that the court erred by crediting the

officer’s testimony.             Under clear error review, we may decide

that a factual finding is clearly erroneous only if we are left

with the definite and firm conviction that a mistake has been

made.     United States v. Harvey, 532 F.3d 326, 336-37 (4th Cir.

2008).     Nothing in the record calls into question the district

court’s decision to credit the testimony of the law enforcement

officer.       See, e.g., United States v. McLean, 715 F.3d 129, 145

(4th    Cir.    2013)    (deferring       to     district   court’s     decision    to

credit witness’s testimony).               Because Riley’s conduct, as found

by the district court, constituted robbery under North Carolina

law, see North Carolina v. Maness, 677 S.E.2d 796, 810 (N.C.

2009), the court properly applied the base offense level for

USSG § 2B3.1.

               Riley    next   challenges       the    enhancement    applied   under

USSG § 3A1.2(c)(1).            Pursuant to that section, six levels are

added    to    the     offense    level    if    the    defendant     assaulted     the

officer during the course of the offense or immediate flight

therefrom      and     created    a   substantial       risk    of   serious    bodily

injury.       An assault is a threat or use of force with the intent

to create bodily injury.                 United States v. Hampton, 628 F.3d

654, 660 (4th Cir. 2010).             The application notes to the relevant

Guidelines       provision       state    that    the    enhancement     applies     in

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circumstances “tantamount to aggravated assault.”                              USSG § 3A1.2

cmt. n.4(a).            Riley argues that the district court erred in

applying this enhancement.                 We have reviewed the record and the

district      court’s        factual     findings       and     conclude      there      was     no

error    in     the    district     court’s          finding    that    Riley       engaged      in

“assaultive resistance to arrest;” thus, the addition of six

levels to the offense level was proper.                             Hampton, 628 F.3d at

660-61.

              Riley next contends that the district court erred in

declining        to     award      him     an        acceptance        of   responsibility

reduction.         Under USSG § 3E1.1(a), the sentencing court should

decrease      the     offense      level    by        two    levels    if   the      defendant

clearly       demonstrates         acceptance          of     responsibility          for      his

offense.        When the district court determines that the defendant

qualifies for a decrease under subsection (a), the offense level

may be decreased by one additional level under § 3E1.1(b), if

the   government        so    moves.        In       order     to   receive     a    reduction

pursuant      to      USSG    §   3E1.1,    “the        defendant      must     prove       by    a

preponderance of the evidence that he has clearly recognized and

affirmatively accepted personal responsibility for his criminal

conduct.”        United States v. May, 359 F.3d 683, 693 (4th Cir.

2004) (internal quotation marks omitted).                             “[A] defendant who

falsely denies, or frivolously contests, relevant conduct that

the     court      determines      to      be    true        has    acted     in     a   manner

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inconsistent with acceptance of responsibility.”                    USSG § 3E1.1

cmt.   n.1(A).      Because     Riley   denied    the    relevant      conduct    of

attempting to disarm the officer, the district court’s decision

was not clearly erroneous.

           Finally,      Riley     asserts       that     his    sentence        was

unreasonable.      He contends that the district court “placed undue

weight on the nature of the crime,” referring to the Guidelines

calculation challenges addressed above.                (Appellant’s Br. at 20-

22).    Because     we   have    concluded      that    those   challenges       are

meritless,   and    because     Riley’s      within-Guidelines      sentence      is

entitled to a presumption of reasonableness — a presumption he

has not rebutted in any fashion — we conclude that his sentence

was reasonable.

           Accordingly, we affirm Riley’s sentence.                    We dispense

with oral argument because the facts and legal contentions are

adequately   presented    in     the    materials      before   this    court    and

argument would not aid the decisional process.

                                                                          AFFIRMED




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