UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5231

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILLIAM ANDREW MERRITT,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Newport News. Raymond A. Jackson, 

District Judge. (4:10-cr-00054-RAJ-TEM-1)

Submitted: July 28, 2011 Decided: August 10, 2011

Before SHEDD, DAVIS, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Keith Loren 

Kimball, Assistant Federal Public Defender, Patrick L. Bryant, 

Appellate Attorney, Norfolk, Virginia, for Appellant. Neil H. 

MacBride, United States Attorney, Kristine E. Wolfe, Special 

Assistant United States Attorney, Newport News, Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

William Andrew Merritt pled guilty to unlawful 

possession of a firearm by a convicted felon, 18 U.S.C. 

§ 922(g)(1) (2006), and was sentenced to a term of sixty-six 

months imprisonment. Merritt appeals his sentence, contending 

that the district court clearly erred in finding that he 

assaulted a law enforcement officer in the course of the offense 

in a manner that created a substantial risk of serious bodily 

injury, U.S. Sentencing Guidelines Manual § 3A1.2(c)(1) (2010). 

We affirm.

Responding to a 911 call from a woman reporting that a 

disorderly man armed with a handgun was refusing to leave her 

hotel room, Police Officer S.A. Mounger encountered Merritt 

walking out the front entrance to the hotel. Merritt 

acknowledged he was the subject of the 911 call and showed his 

identification. He then began walking back to his room.*

 * At the time, Merritt was living at the hotel with a former 

girlfriend.

 He 

ignored Officer Mounger’s request to pat him down for weapons. 

When Mounger drew his gun and ordered Merritt to get down on the 

floor, Merritt did not obey. As Merritt began to re-enter his 

room, Mounger tried to take him into custody. Merritt elbowed 

Mounger in the left arm and then slammed the door on Mounger’s 
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left arm, slightly injuring Mounger’s left elbow. While Mounger 

held the door open with his leg, Merritt ran into the bathroom 

and closed the door briefly. He came out again as backup 

officers arrived. Merritt was arrested for assaulting an 

officer; however, to effect his arrest the officers had to 

subdue him with pepper spray. Merritt’s handgun was found in 

the bathroom and marijuana was found in the room. 

At sentencing, Merritt contested the probation 

officer’s recommendation for a six-level increase in the offense 

level under § 3A1.2(c)(1). Information in the presentence 

report summarized Officer Mounger’s account of the incident, as 

well as a monitored telephone call Merritt made the next day 

from the Newport News jail, in which he said that he had tried 

to break the officer’s arms by slamming the door on him. The 

district court found that slamming a door on a person’s arm 

could potentially cause a serious injury, that Merritt had 

slammed the door on the officer’s arm forcefully in hopes of 

deterring the officer from entering his hotel room, and that the 

officer had been lucky to escape with a minor injury. The court 

decided that the enhancement under § 3A1.2(c)(1) was properly 

applied. However, the court departed downward from the 

Guidelines range of 84-105 months and imposed a sentence of 

sixty-six months. 
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We review the factual findings underlying a sentencing 

enhancement for clear error. United States v. Carter, 601 F.3d 

252, 254 (4th Cir. 2010). Pursuant to USSG § 3A1.2(c), 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). In determining whether an assault 

was committed, this court looks to its meaning both in common 

usage and common law. United States v. Hampton, 628 F.3d 654,

660 (4th Cir. 2010). Battery of a law enforcement officer 

qualifies as an assault within the meaning of USSG 

§ 3A1.2(c)(1). Id. at 661.

Merritt argues that the government did not prove that 

he intentionally attacked Mounger. Instead, Merritt states that 

he was retreating from the police when he “shut a hotel room 

door in such a way that it made contact with an officer’s 

elbow.” Appellant’s Br. at 7. He also argues that the 

government failed to prove that his action created a substantial 

risk of serious injury to the officer and maintains that the 

district court should not have given any weight to his boast 

that he tried to injure the officer by slamming the door on him. 

He contends that the fact that Mounger’s injury was slight 
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proves that he had no intention of seriously harming Mounger. 

Last, he states that, had he wished to seriously harm Mounger, 

he could have used his gun to do so, which he did not. 

Contrary to Merritt’s contentions, the presentence 

report tendered to the court and other evidence of record showed 

that Merritt did not merely retreat but actively refused to 

cooperate with Mounger’s request for a pat-down and subsequent 

order to get on the floor, purposely slammed the door on 

Mounger’s arm, and eventually had to be subdued with pepper

spray. Merritt had the burden of showing that the information 

in the presentence report was inaccurate, which he failed to do. 

See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). 

Moreover, the information in the presentence report was 

corroborated and amplified by Merritt’s phone call from the jail 

in which he said he had tried to break Mounger’s arms when he 

slammed the door. Even though Mounger’s injury was slight, 

Merritt’s action had the potential to produce a more serious 

injury such as a broken arm, which was enough to trigger the 

enhancement. United States v. Ashley, 141 F.3d 63, 68–69 (2d 

Cir. 1998). Therefore, the district court did not clearly err 

in finding that Merritt created a substantial risk of a serious 

injury and in applying the enhancement. 

Accordingly, we affirm the sentence imposed by the 

district court. We dispense with oral argument because the 
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facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process.

AFFIRMED