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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 09-4451
BILLY WAYNE CARTER,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(2:08-cr-00254-1)
Argued: January 29, 2010
Decided: April 1, 2010
Before WILKINSON and AGEE, Circuit Judges,
and R. Bryan HARWELL, United States District Judge for
the District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge Harwell wrote the
opinion, in which Judge Wilkinson and Judge Agee joined.
COUNSEL
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, West Virginia, for Appel-
lant. Monica Lynn Dillon, OFFICE OF THE UNITED
2 UNITED STATES v. CARTER
STATES ATTORNEY, Charleston, West Virginia, for Appel-
lee. ON BRIEF: Mary Lou Newberger, Federal Public
Defender, Christian M. Capece, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, Charleston, West
Virginia, for Appellee.
OPINION
HARWELL, District Judge:
This case presents the question of whether a defendant’s
sentence may be enhanced under U.S.S.G. § 3C1.2 for reck-
less endangerment during flight when the defendant enters the
residence of another person without that other person’s per-
mission. Defendant, Billy Wayne Carter, appeals his forty-six
month sentence resulting from his guilty plea to possession
with intent to distribute cocaine base, in violation of 21
U.S.C. § 841(a)(1). Carter asserts that the district court clearly
erred by enhancing his sentence two levels under U.S.S.G.
§ 3C1.2 based on the conclusion that that he recklessly cre-
ated a substantial risk of serious bodily injury when he
entered the apartment of another person while fleeing on foot
from officers attempting to arrest him.
I.
On November 13, 2008, an undercover officer observed
Carter taking part in suspected drug activity on a street in
Charleston, West Virginia. Carter then entered a maroon van
and travelled to a nearby convenience store. While at the
store, Detectives Griggs and R.G. Henderson, two other offi-
cers with the Special Enforcement Unit, responded to the
area. When Carter left the store, he noticed Henderson stand-
ing near the maroon van, and turned and walked back toward
UNITED STATES v. CARTER 3
the store. Griggs identified himself as a police officer, but
Carter continued toward the store. Griggs then attempted to
grab Carter by the arm, but Carter pulled away and ran into
the store. The officers attempted to subdue Carter inside the
store, but he escaped, losing his shirt and jacket in the pro-
cess, and started running down the street. The officers ordered
Carter to stop, but Carter ran through a bank parking lot to a
point between two houses, where Henderson observed Carter
throw a clear plastic bag over a fence. The bag was later
recovered and found to contain crack cocaine. Carter then ran
between two other houses and was lost from view.
The police then received a 911 call informing them that
Carter had been witnessed entering a nearby apartment build-
ing. Upon arriving at the scene, Officer Charles Young spoke
to a resident of the building, Charles Hill, who informed
Young that Carter had entered Hill’s apartment without his
permission, and put on one of Hill’s shirts, at which point Hill
left the apartment. The officers went to Hill’s apartment, and
knocked and announced their presence. Hearing no response,
the officers entered the apartment and found Carter seated on
a couch, wearing a shirt belonging to Hill. Carter was then
arrested without further incident.
Carter pled guilty, pursuant to a plea agreement, to posses-
sion with intent to distribute crack cocaine, in violation of 21
U.S.C. § 841(a)(1). The probation officer prepared a presen-
tence investigation report in which it was recommended that
Carter’s base offense level of twenty-four be enhanced two
levels under U.S.S.G. § 3C1.2 for reckless endangerment dur-
ing flight from a police officer. The probation officer also rec-
ommended that Carter be awarded a three level credit for
acceptance of responsibility. Carter objected to the enhance-
ment for reckless endangerment.
A sentencing hearing was held on April 22, 2009. During
sentencing, the parties presented evidence and argument
regarding the reckless endangerment enhancement. Specifi-
4 UNITED STATES v. CARTER
cally, the court heard testimony from Detective Henderson
regarding what he had heard from the other officers about the
circumstances surrounding Carter’s arrest, and what Hill had
told those officers when they arrived on the scene. Henderson
testified that Hill told Officer Young, upon Young’s arrival,
that Carter had entered Hill’s apartment without his permis-
sion and while Hill was present in the apartment. Henderson
also attempted to read a witness statement handwritten by Hill
at the time of the incident that purportedly stated that Hill was
not present in his apartment when Carter entered. Ultimately,
in overruling Carter’s objection, the district court concluded
that Hill had been present at the time Carter entered his apart-
ment and found that the probation officer had properly
applied the enhancement for reckless endangerment during
flight. In applying the enhancement, the district court stated
that "the defendant’s entry of the apartment without the per-
mission of its occupant who was in the apartment at the time
constituted in itself a substantial risk to Mr. Hill and indeed
a substantial risk that is inherent at any time anyone enters
another’s home without permission." Furthermore, the district
court held that the substantial risk continued when the officers
had to force entry into the apartment to arrest Carter, noting
that "there is inherent danger any time an officer must get
behind the closed door in order to apprehend an individual
who has just invaded a home, not knowing what may then
ensue." The district court then sentenced Carter to forty-six
months’ imprisonment. This appeal followed.
II.
This court exercises jurisdiction over this appeal under 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291. When evaluating a
challenge to a sentence enhancement, we review the district
court’s factual findings only for clear error, and "[i]f the issue
turns primarily on the legal interpretation of the guidelines,
our review is de novo." United States v. Nale, 101 F.3d 1000,
1003 (4th Cir. 1996). We review the district court’s applica-
tion of the reckless endangerment enhancement for clear
UNITED STATES v. CARTER 5
error. See United States v. Harrison, 272 F.3d 220, 223 (4th
Cir. 2001); see also United States v. Sloley, 19 F.3d 149, 154
(4th Cir. 1994).
III.
As an initial matter, Carter contends that the district court
erred by concluding that Hill was present in his apartment
when Carter entered without permission. The district court
based its factual determination on two sources: (1) the testi-
mony of Henderson, who related both what he had been told
by the arresting officers, and what he had been told by the
officer who interviewed Hill, and (2) the partially illegible
witness statement handwritten by Hill on the date of the inci-
dent. According to Henderson’s testimony, Hill was present
in the apartment when Carter entered Hill’s apartment without
permission. We find that the district court did not clearly err
in determining that Hill was present in the apartment when
Carter entered, based on Henderson’s testimony. See United
States v. Roberts, 881 F.2d 95, 105-06 (4th Cir. 1989) (stating
that hearsay evidence is admissible in sentencing proceedings
so long as the information has sufficient indicia of reliability);
see also U.S.S.G. § 6A1.3(a). Not only was the district court’s
determination buttressed and supported by the fact that the
circumstances surrounding Carter’s eventual arrest corrobo-
rated the information the other officers had relayed to Hender-
son, but Carter’s argument that the handwritten statement
actually contradicts Henderson’s testimony is unpersuasive
given the fact that parts of the written statement are illegible.
However, notwithstanding the above finding, Hill’s actual
location at the time Carter entered his apartment is irrelevant
as to the appropriateness of the reckless endangerment
enhancement under the circumstances of this case.
A two level enhancement of a defendant’s sentence is
appropriate under U.S.S.G. § 3C1.2 "[i]f the defendant reck-
lessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a law
6 UNITED STATES v. CARTER
enforcement officer . . . ." An individual’s acts are considered
"reckless" when he "was aware of the risk created by his con-
duct and the risk was of such a nature and degree that to disre-
gard that risk constituted a gross deviation from the standard
of care that a reasonable person would exercise in such a situ-
ation." U.S.S.G. §§ 2A1.4 cmt. n.1, 3C1.2 cmt. n.2.
Carter contends that the district court clearly erred by find-
ing that his conduct was sufficient to support the two level
enhancement for reckless endangerment during flight. At sen-
tencing, the district court, reviewing the facts as set out in the
presentence investigation report, concluded that Carter’s con-
duct leading up to the time he entered Hill’s apartment posed
some risk, but not a substantial one, and the parties agreed.
Therefore, the only question presented for the district court
was whether Carter’s act of entering Hill’s apartment without
permission, and everything that followed, created the substan-
tial risk required by U.S.S.G. § 3C1.2. Carter admits that he
entered Hill’s apartment without permission, but argues that
he did not forcibly or violently enter the apartment and that
once the officers arrived, he was arrested without further inci-
dent. It is undisputed in the record that once the officers
entered Hill’s apartment, Carter did not resist arrest in any
manner.
However, upon review of the record, we find that the dis-
trict court was correct in applying the enhancement for reck-
less endangerment during flight based on Carter’s actions.
While this court agrees with Carter that something more than
"mere flight" is required for the enhancement to apply, we
find that Carter’s entering Hill’s residence without permission
constitutes more than "mere flight." See United States v. John,
935 F.2d 644, 648 (4th Cir. 1991) (stating that "mere flight
from an arresting officer," by itself, does not warrant an
enhancement).
By unlawfully entering Hill’s residence, regardless of
whether Hill was present in the apartment at the time, Carter
UNITED STATES v. CARTER 7
created a substantial risk of death or bodily injury sufficient
to justify the enhancement under U.S.S.G. § 3C1.2. As the
district court correctly noted, there is a "substantial risk that
is inherent at any time anyone enters another’s home without
permission." If the resident is present at the time the stranger
enters the residence without permission, the substantial risk of
injury or death is obvious as many renters or homeowners
would resort to violence and force to prevent such entry.
Arguably, many residents keep firearms in their homes for the
sole purpose of defending themselves from intruders. The
unknown possibility of the use of such a weapon substantially
increases the risk of serious bodily injury or death to the resi-
dent and the pursuing officers, as well as other nearby resi-
dents and neighbors. Similarly, even if the resident is not
present at the time of entry, the same risk is created by a
stranger entering another’s home without permission in an
attempt to evade police. In such a situation, a violent struggle
causing death or serious bodily injury could just as easily
ensue upon the resident’s returning home and finding the
unexpected and unwelcome stranger. Moreover, as long as the
defendant’s conduct creates the substantial risk of injury or
death, it is not required that his conduct actually cause physi-
cal harm.* Accordingly, the reckless endangerment enhance-
ment under U.S.S.G. § 3C1.2 is appropriate when a
defendant, during flight from the police, enters the residence
of another person without that other person’s permission, and
*In United States v. Jimenez, 323 F.3d 320 (5th Cir. 2003), the Fifth
Circuit Court of Appeals, in discussing that issue, held the following:
To construe the guideline to require that the defendant’s con-
duct result in actual harm or present particularly dangerous or
egregious circumstances would necessitate us to disregard the
clear language of the commentary to the guideline, which simply
requires that the defendant be aware that his conduct creates a
risk of such a nature and degree that to disregard that risk grossly
deviates from the standard of care a reasonable person would
exercise under similar circumstances.
Id. at 324 (citing U.S.S.G. § 2A1.3 cmt. n.1.).
8 UNITED STATES v. CARTER
regardless of whether that other person is present within the
residence at the time of entry.
IV.
For the foregoing reasons, we conclude that the district
court did not clearly err in applying the reckless endanger-
ment enhancement to Carter’s sentence. Accordingly, we
therefore affirm the sentence imposed by the district court.
AFFIRMED