UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5173

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN JOSEPH BARNOCKY,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. Thomas David Schroeder, 

District Judge. (1:10-cr-00020-TDS-1)

Submitted: June 20, 2011 Decided: August 5, 2011

Before GREGORY, SHEDD, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Eric D. Placke, 

Assistant Federal Public Defender, Greensboro, North Carolina, 

for Appellant. Ripley Rand, United States Attorney, Graham T. 

Green, Assistant United States Attorney, Winston-Salem, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

John Joseph Barnocky appeals the 170-month sentence 

imposed following his guilty plea to one count of armed bank 

robbery, in violation of 18 U.S.C. § 2113(a), (d) (2006) (“Count 

Two”), and one count of carrying and using a firearm during and 

in relation to a crime of violence, in violation of 18 U.S.C. 

§ 924(c)(1)(A)(i) (2006) (“Count Three”). On appeal, Barnocky 

argues that the district court erred in applying a six-level 

sentencing enhancement on Count Two for aggravated assault on a 

police officer. Finding no reversible error, we affirm.

We review for clear error the factual findings 

underlying a sentencing enhancement. United States v. Carter, 

601 F.3d 252, 254 (4th Cir. 2010). Pursuant to U.S. Sentencing 

Guidelines Manual (“USSG”) § 3A1.2(c) (2009), 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). Under the Guidelines, such conduct amounts to 

aggravated assault, USSG § 3A1.2 cmt. n.4(A), which is defined 

as “a felonious assault that involved (A) a dangerous weapon 

with intent to cause bodily injury (i.e., not merely to 

frighten) with that weapon; (B) serious bodily injury; or (C) an 
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intent to commit another felony.” USSG § 2A2.2 cmt. n.1. In 

determining whether an assault was committed, we look to the 

common meaning of assault, as well as its common law meaning. 

United States v. Hampton, 628 F.3d 654, 660 (4th Cir. 2010). 

Battery of a law enforcement officer satisfies USSG 

§ 3A1.2(c)(1)’s assault requirement. Id. at 661. 

We hold that the district court did not err in finding 

that Barnocky committed an aggravated assault under the 

Guidelines. As the district court concluded, Barnocky assaulted 

a police officer when he kicked the officer while at the same 

time retrieving and loading his gun. Such conduct was 

sufficient to commit a battery, satisfying the requirements of 

USSG § 3A1.2(c)(1). Contrary to Barnocky’s assertion, the 

evidence did not show that his kicks were insufficient to 

seriously injure the officer. Thus, we hold that the district 

court did not err in applying the six-level enhancement for 

aggravated assault on a police officer. 

Accordingly, we affirm the district court’s judgment. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED