United States v. Vineyard ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4126
BRIAN VINEYARD,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-99-165)
Submitted: July 20, 2000
Decided: October 6, 2000
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Hunt L. Charach, Federal Public Defender, Mary Lou Newberger,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Rebecca A. Betts, United States Attorney, John H. Tinney,
Jr., Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Brian Vineyard pled guilty to one count of possession with intent
to distribute cocaine base and hydromorphone in violation of 21
U.S.C. § 841(a)(1) (1994). On appeal, Vineyard claims that the dis-
trict court erred by imposing pursuant to U.S. Sentencing Guidelines
Manual § 3A1.2(b) (1998), a three-level increase to the base offense
level for assaulting the arresting officer in a manner giving rise to the
possibility of serious bodily injury. Finding no reversible error, we
affirm.
We "accept[s] the findings of fact of the District Court unless they
are clearly erroneous and give[s] due deference to the District Court's
application of the guidelines to the facts." United States v. Cutler, 36
F.3d 406, 407 (4th Cir. 1994). Under USSG § 3A1.2(b), if "during the
course of the offense or immediate flight therefrom, the defendant . . .
knowing or having reasonable cause to believe that a person was a
law enforcement or corrections officer, assaulted such officer in a
manner creating a substantial risk of serious bodily injury," the
offense level is increased by three levels. We find that the district
court did not err in concluding that Vineyard created a substantial risk
of serious injury to the officer. See United States v. Ashley, 141 F.3d
63, 68-69 (2d Cir. 1998).
Accordingly, we affirm the conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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