                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4010



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMES ELTON RICHBURG,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-03-122)


Submitted:   August 27, 2004            Decided:   September 16, 2004


Before WIDENER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Sherri Royall
Alspaugh, Assistant Federal Public Defender, Raleigh, North
Carolina, for Appellant. Frank D. Whitney, United States Attorney,
Anne M. Hayes, Christine Witcover Dean, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            James Elton Richburg 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 108 months imprisonment.             Richburg contends

on appeal that the district court clearly erred in finding that, in

his attempt to avoid arrest, he assaulted the arresting officer in

a manner that created a substantial risk of serious bodily injury.

U.S. Sentencing Guidelines Manual § 3A1.2(b)(1) (2003). We affirm.

            During a traffic stop of the car in which Richburg, a

convicted felon, was a passenger, the police officer learned that

there was an outstanding probation violation warrant for Richburg.

The officer told Richburg that he was under arrest, noticed a gun

in Richburg’s waistband, and attempted to handcuff him.                 Richburg

turned around and tried to punch the officer in the face, but

missed.    The two struggled and Richburg’s gun fell to the ground.

The struggle continued, with the officer punching Richburg in the

face and spraying him in the face with cap-stun, until other

officers arrived.         At Richburg’s sentencing, over his objection,

the district court determined that Richburg had assaulted the

officer in a manner that created a substantial risk of serious

bodily    injury    and    gave   him    a    three-level   adjustment    under

§ 3A1.2(b)(1).

            The    district    court’s       factual   finding   that   Richburg

assaulted the officer in a manner that created a risk of serious


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bodily injury is reviewed for clear error.                        United States v.

Harrison, 272 F.3d 220, 223 (4th Cir. 2001), cert. denied, 537 U.S.

839 (2002).      Richburg argues that his conduct did not create a

substantial     risk   of     serious       bodily   injury.       He    attempts   to

distinguish     his    case     from     Harrison,        where    the   defendant’s

accomplice shot at pursuing police officers,* id. at 222, and from

United States v.       Sloley, 19 F.3d 149, 154 (4th Cir. 1994), in

which the defendant resisted arrest by struggling with the officer

and grabbing his gun.

           Application of § 3A1.2(b) usually is based on some actual

injury to the law enforcement officer or a clear attempt by the

defendant to inflict serious injury, as in Harrison and Sloley.

See, e.g., United States v. Zaragoza-Fernandez, 217 F.3d 31, 33

(1st Cir. 2000) (defendant drove his car at military policeman who

suffered   glancing     blow     on    knee    as    he   jumped    clear);   United

States v. Ashley, 141 F.3d 63, 69 (2d Cir. 1998) (minor injuries

suffered   by   four   officers        in    subduing     defendant).       However,

circumstances alone that presented a risk of injury have been held

to warrant the adjustment.            See United States v. Waldman, 310 F.3d

1074, 1079 (8th Cir. 2002) (defendant pointed loaded gun at back of

officer’s head and threatened to kill him); United States v. Bowie,


     *
      In Harrison, the appellant received adjustments under
§ 3A1.2(b) and § 3C1.2 (Reckless Endangerment during Flight). He
did not contest the applicability of § 3A1.2(b), but argued that
USSG § 3C1.2 alone should have been applied, and that applying both
sections constituted double counting. 272 F.3d at 223.

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198 F.3d 905, 913 (D.C. Cir. 1999) (defendant’s attempt to pull gun

from waistband as officer tried to handcuff him posed risk of

serious bodily injury).

           Clear error occurs when the court, upon reviewing the

record as a whole, is left with the “‘definite and firm conviction

that a mistake has been committed.’”    United States v. Powell, 124

F.3d 655, 667 (5th Cir. 1997) (quoting United States v. United

States Gypsum Co., 333 U.S. 364, 395 (1948)).          Although the

circumstances in this case are less egregious than those in other

decisions, we are satisfied that a circumstance where, as here, an

armed officer has a physical fight with an armed suspect he is

attempting to arrest, presents a risk of serious bodily injury. We

cannot say that the district court clearly erred in finding that

the adjustment was warranted.

           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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