                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4377



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


HENRY JEROME COOPER,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.   Jackson L. Kiser, Senior
District Judge. (CR-03-106)


Argued:   May 25, 2006                     Decided:   June 20, 2006


Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Randy Virlin Cargill, MAGEE, FOSTER, GOLDSTEIN & SAYERS,
P.C., Roanoke, Virginia, for Appellant. Ronald Andrew Bassford,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.     ON BRIEF: John L.
Brownlee, United States Attorney, Jill Lowell, Third Year Practice
Law Student, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Henry Jerome Cooper pled guilty to possession of a firearm by

a convicted felon in violation of 18 U.S.C. § 922(g)(1) (2000).

The district court sentenced Cooper to 37 months of imprisonment.

Cooper now appeals his sentence.

     Cooper primarily contends that the district court improperly

enhanced his sentence for assaulting a law enforcement officer

during the course of immediate flight “in a manner creating a

substantial    risk    of   serious      bodily       injury”     under   U.S.S.G.    §

3A1.2(b)     (2003).        We   review         the    district      court’s    legal

determinations under the sentencing guidelines de novo and will not

disturb its factual findings absent clear error.                   United States v.

Harrison, 272 F.3d 220, 223 (4th Cir. 2001). Application Note 4(A)

to § 3A1.2 provides that this adjustment “applies in circumstances

tantamount to aggravated assault . . . against a law enforcement

officer,   committed    in   the       course    of,    or   in   immediate    flight

following,    another   offense.”          Further,      “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.’”         Id.    Application Note 4(B) provides that

“substantial risk of serious bodily injury” “includes any more

serious injury that was risked, as well as actual serious bodily

injury . . . if it occurs.”




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     While we recognize that a simple assault on a law enforcement

officer during the course of flight is insufficient to warrant the

§ 3A1.2(b) enhancement, we find that the facts of this case created

a substantial risk of serious bodily injury to the law enforcement

officer.     The facts established that Cooper had a loaded nine

millimeter firearm in his hand when he exited the vehicle, the

firearm fell to the ground during a brief struggle with a law

enforcement officer, and Cooper struck the officer in the face

twice during the incident.      When another officer retrieved the

weapon and attempted to eject the magazine, it discharged into the

ground.    Therefore, we hold that the district court did not err in

enhancing Cooper’s sentence under § 3A1.2(b).

     Cooper further contends that he is entitled to resentencing

because the district court plainly erred by improperly finding

facts at sentencing and applying the guidelines under a mandatory

regime.    See United States v. Booker, 543 U.S. 220, 267-68 (2005).

At oral argument, Cooper conceded that he had failed to establish

a Sixth Amendment error because the district court did not impose

a sentence exceeding the maximum allowed based only on the facts he

admitted.    See United States v. Evans, 416 F.3d 298, 300-01 (4th

Cir. 2005).     Inasmuch as Cooper argues that the district court

plainly erred in applying the guidelines as mandatory, the record

provides no nonspeculative basis for us to conclude that the

treatment of the guidelines as mandatory affected the district


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court’s selection of the sentence imposed.     See United States v.

White, 405 F.3d 208, 223 (4th Cir. 2005).   Therefore, Cooper is not

entitled to be resentenced under Booker.     See White, 405 F.3d at

223-24.

     Accordingly, we affirm the decision of the district court.



                                                           AFFIRMED




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