                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4695


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ISIDRO ALBARRAN-FLORES,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:16-cr-00301-RJC-DCK-1)


Submitted: May 22, 2018                                           Decided: May 30, 2018


Before KING, FLOYD, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Carnell T. Johnson, JOHNSON & NICHOLSON, PLLC, Charlotte, North Carolina, for
Appellant. R. Andrew Murray, United States Attorney, Elizabeth M. Greenough,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       A jury convicted Isidro Albarran-Flores of being an illegal alien in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(5)(A) (2012). The district court sentenced

Albarran-Flores to 36 months’ imprisonment. On appeal, Albarran-Flores contends that

the district court erred in applying a 6-level enhancement for assaulting a police officer

during the course of the offense or flight therefrom in a manner creating a substantial risk

of serious bodily injury. See U.S. Sentencing Guidelines Manual § 3A1.2(c)(1) (2016).

We affirm the district court’s judgment.

       “We accord due deference to a district court’s application of the [S]entencing

[G]uidelines.” United States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013). We review

the district court’s factual determinations for clear error. Id. However, “if the issue turns

primarily on the legal interpretation of a guideline term, the standard moves closer to de

novo review.” Id. (alterations and internal quotation marks omitted).

       Section 3A1.2(c) of the Sentencing Guidelines authorizes a 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.”        The enhancement applies only “in circumstances

tantamount to [an] aggravated assault”—that is, “assaultive conduct . . . sufficiently

serious to create at least a ‘substantial risk of serious bodily injury.’”            USSG




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§ 3A1.2(c)(1) cmt. n.4(A). * Because the Guidelines do not define assault, we apply the

common law definition of assault. United States v. Hampton, 628 F.3d 660 (4th Cir.

2010). The common law defines assault as “attempted battery or the deliberate infliction

upon another of a reasonable fear of physical injury.” Id. (internal quotation marks

omitted).

       We conclude that the district court did not clearly err in applying the enhancement.

A defendant’s attempt to point a firearm at a law enforcement officer is a sufficient basis

to apply the enhancement. See, e.g., United States v. Hill, 583 F.3d 1075, 1079-80 (8th

Cir. 2009); United States v. Lee, 199 F.3d 16, 19-20 (1st Cir. 1999). While Albarran-

Flores takes issue with the district court relying on inferences, a district court is permitted

to make inferences from the evidence, so long as those inferences are not clearly

erroneous. See United States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004). Here, the

surveillance video showed Albarran-Flores with a firearm immediately before the police

officer arrived on the scene. The district court reasonably concluded that it would make

no sense for Albarran-Flores to raise his arm and point it at the officer if he was not

holding a firearm in his hand. The surveillance video does not conclusively prove that he

was not in possession of a firearm, allowing the district court to rely on the officer’s

testimony that she believed that he was. Cf. United States v. Hall, 664 F.3d 456, 462 (4th

Cir. 2012) (“[W]hen a trial judge’s finding is based on his decision to credit the testimony

       *
         Guidelines commentary that “interprets or explains a guideline is authoritative
unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).


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of one of two or more witnesses, each of whom has told a coherent and facially plausible

story that is not contradicted by extrinsic evidence, that finding, if not internally

inconsistent, can virtually never be clear error.”). Moreover, the video clearly identifies

the officer’s vehicle as a police cruiser, and the officer was in uniform, allowing the

district court to conclude that Albarran-Flores knew that the officer was a police officer

when he raised his arm toward her.

       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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