                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5231


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WILLIAM ANDREW MERRITT,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.    Raymond A. Jackson,
District Judge. (4:10-cr-00054-RAJ-TEM-1)


Submitted:   July 28, 2011                 Decided:   August 10, 2011


Before SHEDD, DAVIS, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Patrick L. Bryant,
Appellate Attorney, Norfolk, Virginia, for Appellant.  Neil H.
MacBride, United States Attorney, Kristine E. Wolfe, Special
Assistant United States Attorney, Newport News, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 William       Andrew    Merritt     pled     guilty      to        unlawful

possession         of    a     firearm    by   a    convicted       felon,     18     U.S.C.

§ 922(g)(1) (2006), and was sentenced to a term of sixty-six

months imprisonment.               Merritt appeals his sentence, contending

that       the    district       court   clearly     erred    in     finding        that   he

assaulted a law enforcement officer in the course of the offense

in a manner that created a substantial risk of serious bodily

injury, U.S. Sentencing Guidelines Manual § 3A1.2(c)(1) (2010).

We affirm.

                 Responding to a 911 call from a woman reporting that a

disorderly man armed with a handgun was refusing to leave her

hotel      room,       Police    Officer    S.A.    Mounger        encountered      Merritt

walking          out    the     front    entrance    to      the     hotel.          Merritt

acknowledged he was the subject of the 911 call and showed his

identification.               He then began walking back to his room. *                    He

ignored Officer Mounger’s request to pat him down for weapons.

When Mounger drew his gun and ordered Merritt to get down on the

floor, Merritt did not obey.                   As Merritt began to re-enter his

room, Mounger tried to take him into custody.                          Merritt elbowed

Mounger in the left arm and then slammed the door on Mounger’s


       *
       At the time, Merritt was living at the hotel with a former
girlfriend.



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left arm, slightly injuring Mounger’s left elbow.                          While Mounger

held the door open with his leg, Merritt ran into the bathroom

and   closed    the    door   briefly.           He   came   out    again     as   backup

officers     arrived.         Merritt      was    arrested       for   assaulting         an

officer;   however,      to    effect      his    arrest     the    officers       had    to

subdue him with pepper spray.                   Merritt’s handgun was found in

the bathroom and marijuana was found in the room.

           At     sentencing,           Merritt        contested       the     probation

officer’s recommendation for a six-level increase in the offense

level   under    § 3A1.2(c)(1).             Information       in    the      presentence

report summarized Officer Mounger’s account of the incident, as

well as a monitored telephone call Merritt made the next day

from the Newport News jail, in which he said that he had tried

to break the officer’s arms by slamming the door on him.                                 The

district court found that slamming a door on a person’s arm

could   potentially      cause      a    serious       injury,     that     Merritt      had

slammed the door on the officer’s arm forcefully in hopes of

deterring the officer from entering his hotel room, and that the

officer had been lucky to escape with a minor injury.                          The court

decided that the enhancement under § 3A1.2(c)(1) was properly

applied.        However,      the       court    departed        downward      from      the

Guidelines     range    of    84-105     months       and   imposed    a     sentence     of

sixty-six months.



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                  We review the factual findings underlying a sentencing

enhancement for clear error.                           United States v. Carter, 601 F.3d

252,    254       (4th       Cir.   2010).             Pursuant        to   USSG       § 3A1.2(c),        a

defendant qualifies for a six-level enhancement if, knowing or

having       reasonable           cause      to    believe           that   a    person      is    a    law

enforcement          officer,           he     assaults         the     officer        in    a    manner

creating a substantial risk of serious bodily injury during the

course       of    an    offense          or      during        immediate        flight      from       the

offense.          USSG § 3A1.2(c)(1).                  In determining whether an assault

was committed, this court looks to its meaning both in common

usage and common law.                    United States v. Hampton, 628 F.3d 654,

660    (4th       Cir.   2010).              Battery       of    a    law   enforcement           officer

qualifies          as        an     assault            within         the       meaning      of        USSG

§ 3A1.2(c)(1).           Id. at 661.

                  Merritt argues that the government did not prove that

he intentionally attacked Mounger.                              Instead, Merritt states that

he was retreating from the police when he “shut a hotel room

door    in    such       a    way       that    it      made     contact        with    an   officer’s

elbow.”           Appellant’s            Br.      at    7.       He     also     argues      that       the

government failed to prove that his action created a substantial

risk of serious injury to the officer and maintains that the

district court should not have given any weight to his boast

that he tried to injure the officer by slamming the door on him.

He    contends       that         the    fact      that      Mounger’s          injury      was   slight

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proves that he had no intention of seriously harming Mounger.

Last, he states that, had he wished to seriously harm Mounger,

he could have used his gun to do so, which he did not.

              Contrary       to     Merritt’s      contentions,         the    presentence

report tendered to the court and other evidence of record showed

that    Merritt      did    not    merely     retreat        but    actively    refused      to

cooperate with Mounger’s request for a pat-down and subsequent

order    to    get     on    the    floor,       purposely         slammed    the    door    on

Mounger’s     arm,     and    eventually         had    to    be    subdued    with   pepper

spray.     Merritt had the burden of showing that the information

in the presentence report was inaccurate, which he failed to do.

See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990).

Moreover,      the      information         in     the       presentence       report       was

corroborated and amplified by Merritt’s phone call from the jail

in which he said he had tried to break Mounger’s arms when he

slammed    the    door.          Even    though    Mounger’s         injury    was    slight,

Merritt’s action had the potential to produce a more serious

injury such as a broken arm, which was enough to trigger the

enhancement.         United States v. Ashley, 141 F.3d 63, 68–69 (2d

Cir. 1998).          Therefore, the district court did not clearly err

in finding that Merritt created a substantial risk of a serious

injury and in applying the enhancement.

              Accordingly,          we   affirm    the       sentence    imposed      by    the

district      court.        We     dispense      with    oral      argument    because      the

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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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