                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4020



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


MICHAEL VERNELL WILLIAMS,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:05-cr-00198-1)


Submitted:   May 7, 2008                      Decided:   May 19, 2008


Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


W. Michael Frazier, FRAZIER & OXLEY, L.C., Huntington, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, J. Christopher Krivonyak, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Michael Vernell Williams pled guilty to possession of

five       grams   or     more   of   cocaine   base   (crack)     with    intent      to

distribute, 21 U.S.C. § 841(a)(1) (2000) (Count One), and carrying

a firearm during and in relation to a drug trafficking crime, 18

U.S.C.A. § 924(c) (West 1999 & Supp. 2007) (Count Two).                                He

received a sentence of eighty-four months imprisonment.                         Williams

appeals his sentence,* arguing that the district court clearly

erred in giving him an adjustment for reckless endangerment during

flight, U.S. Sentencing Guidelines Manual (USSG) § 3C1.2 (2006).

He also contends that the adjustment resulted in impermissble

double counting because it was imposed in conjunction with his

sentence for the § 924(c) offense.                We agree that § 3C1.2 applied

and affirm the sentence.

               On November 4, 2003, two police officers in Huntington,

West Virginia, stopped the vehicle Williams was driving because it

matched the description of a vehicle they were looking for in

connection         with    a   murder.     Williams    got   out   of     the    car   as

requested, but when the officers attempted to pat him down for

weapons, he resisted.                 A struggle followed, during which the

officers found a pistol in Williams’ waistband.                         Williams was



       *
      In his plea agreement, Williams waived his right to appeal
the reasonableness of his sentence as long as it was within the
guideline range established at sentencing, but reserved the right
to appeal the calculation of the guideline range.

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subdued and placed on the ground.           He was carrying 11.01 grams of

crack and $1003 in cash.

          In calculating Williams’ offense level for the drug

count,   the    probation     officer      did    not   include        a    two-level

enhancement for possession of a weapon during the drug offense

because of Williams’ § 924(c) conviction.                     See USSG § 2K2.4,

comment. (n.4).       However, the probation officer recommended a two-

level adjustment under USSG § 3C1.2 for recklessly creating a

substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer.

This enhancement was based on Williams’ brief struggle with the

officers while he was armed with the pistol.                  Williams contested

the § 3C1.2 adjustment, arguing that he had simply failed to be

cooperative. He also argued that, because he had been convicted of

possession of a gun during a drug trafficking crime, the § 3C1.2

adjustment amounted to double counting.            At the sentencing hearing

in November 2007, the district court overruled Williams’ objection

to the § 3C1.2 adjustment.           Williams did not raise the double

counting claim he had set out in his written objections, and the

district court did not address it.

          On    appeal,      Williams     first   argues      that   the     §    3C1.2

adjustment was not warranted by the facts.               The district court’s

determination    of    the   facts   is    reviewed     for    clear       error;   its

decision that an adjustment applies is reviewed de novo.                         United


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

section 3C1.2 provides: “If the defendant recklessly created a

substantial risk of death or serious bodily injury to another

person in the course of fleeing from a law enforcement officer,

increase by 2 levels.”        The term “during flight” encompasses

“preparation for flight” and includes conduct that “occurs in the

course of resisting arrest.”       USSG § 3C1.2, comment. (n.3).

           Williams contends that the district court applied the

adjustment merely because he was carrying a firearm.              Although

Williams was not technically resisting arrest when he struggled

with the officers, he was anticipating the arrest that he knew

would occur if he were found to be carrying a gun together with

eleven grams of crack and $1003 in cash.

           Both the plain language of the guideline and case law

mandate   application   of   the   adjustment    when   the   defendant   is

resisting arrest and his conduct creates a substantial risk of

serious bodily injury, even though no injury results.           See, e.g.,

United States v. Jimenez, 323 F.3d 320, 323-24 (5th Cir. 2003);

United States v. Thomas, 294 F.3d 899, 906-07 (7th Cir. 2002);

United States v. Williams, 254 F.3d 44, 47-48 (2d Cir. 2001).              A

struggle in which all the parties are armed carries an obvious risk

that the struggle might escalate to the point that a firearm is

used, or discharges accidentally.          We conclude that the district




                                   - 4 -
court did not clearly err in finding that Williams’ conduct created

such a risk.

           Next,    Williams     contends      that,       because     the    §    3C1.2

adjustment was imposed with his sentence for the § 924(c) offense,

it constituted impermissible double counting.                     Because Williams

failed to raise the issue at the sentencing hearing, the plain

error standard of review applies. United States v. Olano, 507 U.S.

725, 732-37 (1993).

           Double-counting       is    permitted          under     the    guidelines

“[u]nless a guideline provision expressly prohibits consideration

of a factor previously used in applying another guideline section.”

United   States    v.   Blake,   81    F.3d    498,       505   (4th      Cir.    1996).

Application Note 1 to § 3C1.2 states that the adjustment should not

be applied “where the offense guideline in Chapter Two, or another

adjustment in Chapter Three, results in an equivalent or greater

increase in offense level solely on the basis of the same conduct.”

This commentary does not preclude application of the adjustment

Williams   received,     which   was   based        on    conduct    separate          from

Williams’ possession of the gun--his resistance and struggle with

the armed policemen while armed himself.                 We are satisfied that no

error occurred

           Accordingly,     we   affirm       the    sentence       imposed       by   the

district court.     We dispense with oral argument because the facts




                                      - 5 -
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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