                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                                No. 03-4365
ALONZO WASHINGTON, JR.,
             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-02-78-BO)

                      Submitted: October 31, 2003

                      Decided: November 14, 2003

  Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Jeanette Doran Brooks, Research
and Writing Attorney, Raleigh, North Carolina, for Appellant. Frank
D. Whitney, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Christine Witcover Dean, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
2                   UNITED STATES v. WASHINGTON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Alonzo Washington, Jr., 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 forty-six months imprisonment. Washington contests the
district court’s decision to give him a two-level adjustment for reck-
less endangerment during flight. U.S. Sentencing Guidelines Manual
§ 3C1.2 (2002). We affirm.

   Washington was in a group of people loitering at a lot in Raleigh,
North Carolina, known for criminal activity and posted with "No
Trespassing" signs when police approached. A number of people got
into their parked cars, but Washington, a convicted felon, appeared
nervous and fled on foot when the officers advanced toward him. The
officers saw him trying to retrieve something from his right pants
pocket. Washington was apprehended after a short chase and tackled
to the ground. After he was on the ground, Washington continued to
reach inside his pocket. Once Washington was handcuffed, the offi-
cers discovered a loaded .25 caliber semi-automatic handgun in that
pocket.

   A two-level adjustment is provided under USSG § 3C1.2 when the
conduct of the defendant "recklessly created a substantial risk of
death or serious bodily injury to another person" while he was fleeing
from a law enforcement officer. Application Note 2 adopts the defini-
tion of "reckless" in Application Note 1 to USSG § 2A1.4, that is, that
the defendant "was aware of the risk created by his conduct and that
risk was of such a nature and degree that to disregard that risk consti-
tuted a gross deviation from the standard of care that a reasonable per-
son would exercise in such a situation." At his sentencing,
Washington proffered through his attorney that he had intended to
throw the gun away. He argues on appeal that the adjustment was not
warranted because the evidence showed only that he fled, that he was
                     UNITED STATES v. WASHINGTON                         3
unable to get the gun out of his pocket, and that the police did not
know he had a gun until after he was apprehended. He asserts that his
effort to get rid of the gun was instinctual, relying on United States
v. John, 935 F.2d 644, 648 (4th Cir. 1991), which held that "mere
flight" does not warrant the adjustment, and that "endangering others
during flight or in the course of resisting arrest involves active, willful
behavior . . .," while "mere flight or disagreeableness during an
encounter involves more passive or instinctive conduct."

   Washington’s attempt to take the gun out of his pocket was active
and willful conduct which created a substantial risk of injury to the
officers and any bystanders in the area. Because the police could not
know that, if indeed he had a gun, he intended to throw the gun away,
Washington’s conduct could easily have caused the officers to shoot
in self-defense. Washington could not have been unaware of the dan-
ger inherent in drawing a gun—or appearing to do so—while being
pursued or apprehended by police. Therefore, we conclude that the
district court did not clearly err in making the adjustment.

   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 argu-
ment would not aid the decisional process.

                                                             AFFIRMED
