UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-5003

WALLACE MIKELL TOOLE, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

Frank W. Bullock, Jr., Chief District Judge.

(CR-97-20)

Submitted: September 22, 1998

Decided: October 19, 1998

Before ERVIN, WILKINS, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North

Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,

Sandra J. Hairston, Assistant United States Attorney, Greensboro,

North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Wallace Mikell Toole, Jr., pled guilty to conspiracy to possess heroin, cocaine, and crack cocaine with intent to distribute, 21 U.S.C.A.

§ 846 (West Supp. 1998), and received a sentence of 273 months

imprisonment. He appeals this sentence on the ground that the district

court clearly erred in enhancing his sentence for reckless endangerment during flight. See U.S. Sentencing Guidelines Manual § 3C1.2

(1997). We affirm.

Toole distributed cocaine, crack, and heroin for several years in

Durham, North Carolina, before his arrest for the instant offense. In

December 1996, an informant cooperating with Durham police

arranged to buy heroin from Toole at a Burger King restaurant. As the

transaction was taking place in the Burger King parking lot, the officers attempted to arrest Toole, and Toole fled in his Mercedes Benz,

nearly running over one of the officers. A high-speed chase lasting

several minutes followed. Toole abandoned his car after he blew a tire

and was quickly captured.

Guideline section 3C1.2 provides for a two-level increase in the

offense level when the defendant "recklessly created a substantial risk

of death or serious bodily injury to another person in the course of

fleeing from a law enforcement officer." Mere flight from an arresting

officer does not trigger the adjustment. See United States v. John, 935

F.2d 644, 648 (4th Cir. 1991). However, endangering the lives of

police officers or bystanders does. See United States v. Luna, 21 F.3d

874, 885 (9th Cir. 1994) (high speed chase through residential area);

United States v. Hicks, 948 F.2d 877, 884 (4th Cir. 1991) (high speed

chase on rural road). Here, there was testimony at the sentencing

hearing that one of the officers had to jump out of the way of Toole's

car to avoid being run over. Toole's flight along several city streets

and a highway created a danger to cars and pedestrians. On these

facts, we have no difficulty in finding that the district court did not

clearly err in making the adjustment.

We therefore affirm the sentence. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

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materials before the court and argument would not aid the decisional

process.

AFFIRMED

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