United States v. John Barnocky , 441 F. App'x 998 ( 2011 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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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