UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4365

ALONZO WASHINGTON, JR.,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge.

(CR-02-78-BO)

Submitted: October 31, 2003

Decided: November 14, 2003

Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Jeanette Doran Brooks, Research

and Writing Attorney, Raleigh, North Carolina, for Appellant. Frank

D. Whitney, United States Attorney, Anne M. Hayes, Assistant

United States Attorney, Christine Witcover Dean, Assistant United

States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Alonzo Washington, Jr., pled guilty to possession of a firearm by

a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was sentenced

to a term of forty-six months imprisonment. Washington contests the

district court’s decision to give him a two-level adjustment for reckless endangerment during flight. U.S. Sentencing Guidelines Manual

§ 3C1.2 (2002). We affirm. 

Washington was in a group of people loitering at a lot in Raleigh,

North Carolina, known for criminal activity and posted with "No

Trespassing" signs when police approached. A number of people got

into their parked cars, but Washington, a convicted felon, appeared

nervous and fled on foot when the officers advanced toward him. The

officers saw him trying to retrieve something from his right pants

pocket. Washington was apprehended after a short chase and tackled

to the ground. After he was on the ground, Washington continued to

reach inside his pocket. Once Washington was handcuffed, the officers discovered a loaded .25 caliber semi-automatic handgun in that

pocket. 

A two-level adjustment is provided under USSG § 3C1.2 when the

conduct of the defendant "recklessly created a substantial risk of

death or serious bodily injury to another person" while he was fleeing

from a law enforcement officer. Application Note 2 adopts the definition of "reckless" in Application Note 1 to USSG § 2A1.4, that is, that

the defendant "was aware of the risk created by his conduct and that

risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation." At his sentencing,

Washington proffered through his attorney that he had intended to

throw the gun away. He argues on appeal that the adjustment was not

warranted because the evidence showed only that he fled, that he was

2 UNITED STATES v. WASHINGTON
unable to get the gun out of his pocket, and that the police did not

know he had a gun until after he was apprehended. He asserts that his

effort to get rid of the gun was instinctual, relying on United States

v. John, 935 F.2d 644, 648 (4th Cir. 1991), which held that "mere

flight" does not warrant the adjustment, and that "endangering others

during flight or in the course of resisting arrest involves active, willful

behavior . . .," while "mere flight or disagreeableness during an

encounter involves more passive or instinctive conduct." 

Washington’s attempt to take the gun out of his pocket was active

and willful conduct which created a substantial risk of injury to the

officers and any bystanders in the area. Because the police could not

know that, if indeed he had a gun, he intended to throw the gun away,

Washington’s conduct could easily have caused the officers to shoot

in self-defense. Washington could not have been unaware of the danger inherent in drawing a gun—or appearing to do so—while being

pursued or apprehended by police. Therefore, we conclude that the

district court did not clearly err in making the adjustment. 

We therefore affirm the sentence imposed by the district court. 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

UNITED STATES v. WASHINGTON 3