                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5173


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHN JOSEPH BARNOCKY,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Thomas David Schroeder,
District Judge. (1:10-cr-00020-TDS-1)


Submitted:   June 20, 2011                 Decided:   August 5, 2011


Before GREGORY, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant.   Ripley Rand, United States Attorney, Graham T.
Green, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            John     Joseph       Barnocky       appeals   the    170-month       sentence

imposed following his guilty plea to one count of armed bank

robbery, in violation of 18 U.S.C. § 2113(a), (d) (2006) (“Count

Two”), and one count of carrying and using a firearm during and

in relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i) (2006) (“Count Three”).                        On appeal, Barnocky

argues that the district court erred in applying a six-level

sentencing enhancement on Count Two for aggravated assault on a

police officer.          Finding no reversible error, we affirm.

            We     review     for        clear     error    the     factual       findings

underlying a sentencing enhancement.                      United States v. Carter,

601 F.3d 252, 254 (4th Cir. 2010).                   Pursuant to U.S. Sentencing

Guidelines        Manual    (“USSG”)        § 3A1.2(c)       (2009),       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).           Under the Guidelines, such conduct amounts to

aggravated assault, USSG § 3A1.2 cmt. n.4(A), which is defined

as “a felonious assault that involved (A) a dangerous weapon

with   intent      to     cause     bodily       injury    (i.e.,     not       merely     to

frighten) with that weapon; (B) serious bodily injury; or (C) an

                                             2
intent to commit another felony.”                          USSG § 2A2.2 cmt. n.1.           In

determining whether an assault was committed, we look to the

common meaning of assault, as well as its common law meaning.

United States v. Hampton, 628 F.3d 654, 660 (4th Cir. 2010).

Battery       of     a         law     enforcement          officer      satisfies        USSG

§ 3A1.2(c)(1)’s assault requirement.                       Id. at 661.

              We hold that the district court did not err in finding

that    Barnocky         committed        an     aggravated        assault       under    the

Guidelines.         As the district court concluded, Barnocky assaulted

a police officer when he kicked the officer while at the same

time    retrieving         and        loading    his       gun.       Such   conduct      was

sufficient to commit a battery, satisfying the requirements of

USSG    § 3A1.2(c)(1).                Contrary       to    Barnocky’s     assertion,      the

evidence      did    not       show    that     his       kicks   were   insufficient       to

seriously injure the officer.                    Thus, we hold that the district

court   did    not       err    in    applying       the    six-level     enhancement      for

aggravated assault on a police officer.

              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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