UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5058

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARCUS DOMINIC BROOKS,

Defendant - Appellant.

Appeal from the United States District Court for the Northern

District of West Virginia, at Martinsburg. David A. Faber, Chief

District Judge. (CR-04-40)

Submitted: June 21, 2006 Decided: August 30, 2006

Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

J. Mark Sutton, SUTTON & JANELLE, P.L.L.C., Martinsburg, West

Virginia, for Appellant. Thomas E. Johnston, United States

Attorney, Thomas O. Mucklow, Assistant United States Attorney,

Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*

United States v. Booker, 543 U.S. 220 (2005).

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PER CURIAM:

Marcus Dominic Brooks appeals the 262-month sentence

imposed by the district court after he pled guilty to conspiracy to

possess with intent to distribute and to distribute fifty grams or

more of crack cocaine, in violation of 21 U.S.C. § 846 (2000);

possession with intent to distribute 108 grams of crack, in

violation of 21 U.S.C. § 841(a)(1) (2000), and 18 U.S.C. § 2

(2000); and possession with intent to distribute 129 grams of

cocaine, in violation of § 841(a)(1) and § 2. On appeal, Brooks

asserts that the district court erred by applying a two-level

upward adjustment under U.S. Sentencing Guidelines Manual § 3C1.2

(2004), for reckless endangerment during flight. He also asserts

that the court erred by refusing to award a downward adjustment

under USSG § 3E1.1 for acceptance of responsibility. We affirm.

In a post-Booker* sentencing, such as this, a district

court must calculate the applicable guideline range after making

the appropriate findings of fact, consider the range in conjunction

with other relevant factors under the guidelines and 18 U.S.C.A.

§ 3553(a) (West 2000 & Supp. 2006), and impose a sentence. United

States v. Moreland, 437 F.3d 424, 432 (4th Cir.) (citing United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)), cert. denied,

126 S. Ct. 2054 (2006). The sentence must be “within the

statutorily prescribed range and . . . reasonable.” Hughes, 401
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F.3d at 546-47 (citations omitted). In reviewing the calculation

of the advisory sentencing guideline range, this court “review[s]

the district court’s legal conclusions de novo and its factual

findings for clear error.” United States v. Hampton, 441 F.3d 284,

287 (4th Cir. 2006). 

Brooks asserts on appeal that the district court erred in

failing to apply a two-level downward adjustment for acceptance of

responsibility. We review a district court’s decision to grant or

deny an adjustment for acceptance of responsibility for clear

error. United States v. May, 359 F.3d 683, 688 (4th Cir. 2004).

Our review of the record convinces us that the district court did

not clearly err in refusing to apply an acceptance of

responsibility downward adjustment. 

Brooks also challenges the district court’s application

of the upward adjustment for reckless endangerment during flight.

He contends that he did not create a substantial risk of death or

serious bodily injury because there was no high-speed pursuit,

there was only minimal property damage from his backing into an

officer’s unmarked vehicle, and no one was injured. Because Brooks

challenges the application of the reckless endangerment adjustment

to the undisputed facts of his case, our review is de novo. See

Hampton, 441 F.3d at 287; United States v. Butner, 277 F.3d 481,

487-88 (4th Cir. 2002) (reviewing de novo legal ruling based upon

undisputed facts). After thoroughly reviewing the record on
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appeal, we are convinced that the adjustment was warranted. See

United States v. Galvan, 407 F.3d 954, 957-58 (8th Cir.) (upholding

upward adjustment under § 3C1.2 where officers pursued defendant

into residential neighborhood, and defendant abruptly made U-turn

and drove his car close to officers approaching on foot), cert.

denied, 126 S. Ct. 497 (2005).

Accordingly, we affirm Brooks’ sentence. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED