                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-4047


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CORREY MARKELL JANIFER,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:13-
cr-00089-PWG-1)


Submitted:   August 26, 2014                 Decided:   September 5, 2014


Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Christopher M. Davis, Mary E. Davis, DAVIS & DAVIS, Washington,
D.C., for Appellant. Rod J. Rosenstein, United States Attorney,
Hollis Raphael Weisman, Assistant United States Attorney,
Kathleen E.I. Wise, Student Law Clerk, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Correy Markell Janifer pled guilty, pursuant to a plea

agreement, to possession of a firearm by a convicted felon, in

violation     of   18    U.S.C.    § 922(g)(1)        (2012),    and    interstate

transportation of a stolen vehicle, in violation of 18 U.S.C.

§ 2312 (2012).          Janifer appeals his forty-six-month sentence,

arguing that the district court clearly erred when it applied a

six-level enhancement to his base offense level for assaulting a

police officer while fleeing arrest, pursuant to U.S. Sentencing

Guidelines Manual (“U.S.S.G.”) § 3A1.2(c)(1) (2013).                   We affirm.

            When evaluating Guidelines calculations, we review the

district court’s factual findings for clear error and its legal

conclusions de novo.            United States v. Cox, 744 F.3d 305, 308

(4th Cir. 2014).         We will find clear error only when, “on the

entire   evidence[,]      [we    are]   left   with    the   definite    and   firm

conviction that a mistake has been committed.”                      Id. (internal

quotation marks omitted).

            Section 3A1.2(c)(1) authorizes the sentencing court to

enhance the offense level by six if the defendant, in a manner

creating a substantial risk of serious bodily injury, “knowing

or having reasonable cause to believe that a person was a law

enforcement officer, assaulted such officer during the course of

the offense or immediate flight therefrom.”                  An application note

explains    that   the    enhancement     applies     only    “in   circumstances

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tantamount      to     an       aggravated              assault”—-that          is--“assaultive

conduct . . . that is sufficiently serious to create at least a

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

§ 3A1.2(c)(1)        cmt.       n.4(A)       (internal       quotation       marks      omitted).

“Serious bodily injury” is an “injury involving extreme physical

pain or the protracted impairment of a function of a bodily

member,      organ,        or        mental     faculty;           or     requiring       medical

intervention        such        as    surgery,           hospitalization,          or    physical

rehabilitation.”           U.S.S.G. § 1B1.1 cmt. n.1(L).

              Because the Guidelines do not define assault, we held,

in a case involving the same sentencing enhancement, that the

common law definition applies.                          See United States v. Hampton,

628 F.3d 654, 660 (4th Cir. 2010).                         The common law definition of

assault     includes        the      “threat        or    use     of     force    inflicting       a

reasonable apprehension of harm; an attempt to commit battery; a

battery;      and    any        attack.”            Id.     (internal       quotation          marks

omitted).      Accordingly, we “readily conclude[d] that battery of

a   law    enforcement       officer          was       intended    to    and     in    fact    does

satisfy U.S.S.G. § 3A1.2(c)(1)’s assault requirement.”                                     Id. at

661.

              In sum, in order for the enhancement to apply in this

case, the Government was required to prove by a preponderance of

the evidence that:               (1) Janifer knew or had reason to believe

that      Officer    Usher        was    a     law       enforcement       officer;       (2)     he

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assaulted     Officer       Usher       in   the        course     of        the    offense      or

immediate flight therefrom, employing the common law definition

of assault; and (3) the assault qualified as aggravated—-that

is--one     that    created      at    least       a    substantial      risk        of   serious

bodily injury.           See United States v. Manigan, 592 F.3d 621, 628-

29 (4th Cir. 2010) (noting that the government has the burden of

proving     application         of    U.S.S.G.          sentence    enhancements            by   a

preponderance of the evidence).

             The primary dispute on appeal is whether the first

collision between the stolen vehicle Janifer was driving and

Officer     Usher’s        police      cruiser         qualified        as     an    aggravated

assault.      We conclude that the district court did not clearly

err by applying the § 3A1.1(c)(1) enhancement to Janifer’s base

offense     level        when    Janifer       intentionally            accelerated           into

Officer Usher’s cruiser at speeds that created a substantial

risk   of    serious       bodily      injury.           The     collision          was    not   an

accident nor a benign contact between the two vehicles.

             Accordingly, we affirm the district court’s judgment.

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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