                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-5264



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.


TREMAYNE NAVARIS CARMICHAEL,

                  Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:06-cr-00009)


Submitted:     February 14, 2008           Decided:   February 29, 2008


Before MOTZ and KING, Circuit Judges, and WILKINS, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Tremayne Navaris Carmichael 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    seventy-two     months   imprisonment.

Carmichael appeals his sentence, arguing that the district court

erred   in    making     a    6-level      adjustment    for    assault   on   a    law

enforcement officer in a manner that created a substantial risk of

serious bodily injury during the offense, or immediate flight

therefrom, under U.S. Sentencing Guidelines Manual § 3A1.2(c)(1)

(2005).      We affirm.

              Carmichael was stopped by Goldsboro, North Carolina,

Police Officer Steven Powers because Carmichael’s vehicle matched

the description of a car involved in recent drive-by shooting.

Powers called for backup after seeing what appeared to be marijuana

on Carmichael’s pants.               Carmichael, who had a loaded firearm

concealed     in   his    waistband,        tried   to   flee   through   the      open

passenger-side window.           After a brief struggle with Powers, who

reached in through the window on the driver’s side and grabbed his

legs, Carmichael succeeded in pulling the top half of his body out

of the window. Powers testified at the sentencing hearing that, at

this point, he looked over the roof of the car and saw a gun in

Carmichael’s hand, coming toward him.                    Powers shot and wounded

Carmichael.




                                           - 2 -
            At       sentencing,    the   district        court   heard   conflicting

testimony about the incident from Powers, the backup officer,

Carmichael,      and     two    witnesses      to   the    incident.       Carmichael

testified that he did not take the gun from his waistband before he

was shot.        The court found Powers’ testimony to be the most

credible. Carmichael also argued that the § 3A1.2(c)(1) adjustment

required a finding that he intended to harm the officer, but he

informed the court that he would not object to a 2-level adjustment

under USSG § 3C1.2 (Reckless Endangerment).                       The court applied

§ 3A1.2, finding that Carmichael caused Powers to fear that he

would be shot, thus making the implied finding that his conduct

amounted to an assault in a manner that created a substantial risk

of serious bodily injury.

            We review the district court’s factual findings for clear

error and its interpretation of the guidelines de novo.                        United

States v. Quinn, 359 F.3d 666, 679 (4th Cir. 2004).                       Application

Note   4   to    §    3A1.2    states   that    “[s]ubsection       (c)   applies   in

circumstances tantamount to aggravated assault” against a law

enforcement officer or prison official, and that “its applicability

is limited to assaultive conduct against such official victims that

is sufficiently serious to create at least ‘a substantial risk of

serious bodily injury.’” The commentary to § 3A1.2 does not define

aggravated assault.            Nor does it require a showing of intent.




                                          - 3 -
            Carmichael contends that the district court should have

applied the definition of aggravated assault set out in Application

Note 1 to USSG § 2A2.2 (Aggravated Assault).                 However, § 2A2.2 is

not applicable to Carmichael’s offense. Definitions of widely-used

terms are set out in USSG § 1B1.1 (Application Instructions).

Application Note 2 to § 1B1.1 states that definitions of terms

contained    in   other       guidelines     “are   not   designed   for    general

applicability” and “their applicability to sections other than

those expressly referenced must be determined on a case by case

basis.”

            In this case, Carmichael concedes, as he did in the

district court, that his conduct caused a substantial risk of

serious   injury   to     Powers,      but   maintains    that   only   a   2-level

adjustment    under       §    3C1.2    was     warranted.       However,      both

§ 3A1.2(c)(1) and § 3C1.2 may apply, without a finding of intent,

if the defendant created a substantial risk of serious bodily

injury.   The difference is that, if the defendant’s conduct caused

the risk to an official victim, such as a law enforcement officer,

the 6-level adjustment under § 3A1.2 must be applied.                   See United

States v. Sloley, 19 F.3d 149, 154 (4th Cir. 1994);* USSG § 3C1.2,

comment. (n.1) (§ 3C1.2 should not be applied if another Chapter



     *
      When Sloley was decided, the pertinent language was in
§ 3A1.2(b) and the guideline provided only a three-level
adjustment.   Amendment 664, effective November 1, 2004, added
subsection (c) and increased the adjustment to six levels.

                                        - 4 -
Three adjustment results in greater increase in offense level based

on same conduct).

            Carmichael attempts to distinguish Sloley, asserting that

the only issue in that case was the district court’s factual

finding    that    Sloley    assaulted        the   officer.    However,    like

Carmichael,       Sloley    argued     that     his   conduct   warranted     the

application of § 3C1.2 instead of § 3A1.2.                 We noted in Sloley

that, if both § 3A1.2(b) and § 3C1.2 apply, the sentencing court

must apply § 3A1.2, which provides a greater increase, see 19 F.3d

at 154, and for that reason, we stated that the relevant question

was whether the defendant’s conduct warranted a finding that he had

assaulted the officer in a manner creating a substantial risk of

serious bodily injury.           Id.     Here, as in Sloley, Carmichael’s

conduct created a substantial risk of serious bodily injury to the

officer.      We    find    no   error   in     the   court’s   application    of

§ 3A1.2(c)(1).

            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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