185 F. App'x 286
4th Cir.
2006

TJEN v. GONZALES

United States Court of Appeals, Fourth Circuit

286 F.3d 286

that there are no timeliness concerns regarding this alternative ground for relief. See Xiao Ji Chen v. U.S. Dep‘t of Justice, 434 F.3d 144, 155 (2d Cir.2006) (noting that eligibility for withholding of removal is not subject to 8 U.S.C. § 1158(a)(2)(B)‘s one-year bar and, thus, must be considered regardless of the timeliness of the petitioner‘s asylum application). Accordingly, we must uphold the BIA‘s determination regarding Tjen‘s ineligibility for withholding of removal if the decision is supported by substantial evidence in the record considered as a whole. Rusu v. INS, 296 F.3d 316, 324 n. 14 (4th Cir. 2002).

To qualify for withholding of removal, Tjen must demonstrate that, if he were deported to Indonesia, he faces “a clear probability of persecution because of his race, religion, nationality, membership in a particular social group, or political opinion.” Id. at 324 n. 13. This is a more stringent standard than that for asylum. Chen v. INS, 195 F.3d 198, 205 (4th Cir. 1999). Unlike the grant of asylum (where an alien is entitled to remain in the United States), withholding of removal merely bars the deportation of an alien to a particular country. INS v. Aguirre-Aguirre, 526 U.S. 415, 419 (1999). Further, while the grant of asylum is discretionary, if an alien establishes eligibility for withholding of removal, the grant is mandatory. Id. at 420.

In this case, the BIA did not err when it concluded that Tjen was not entitled to withholding of removal. First, the isolated incidents that resulted in minimal harm to Tjen clearly do not rise to the level of persecution. See Li v. Gonzales, 405 F.3d 171, 177 (4th Cir.2005) (noting that minor beatings do not amount to persecution). Second, Tjen‘s father, mother, and sister continue to live in Indonesia without meaningful incident. Cf. Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (“We agree that when family members remain in petitioner‘s native country without meeting harm, and there is no individualized showing that petitioner would be singled out for persecution, the reasonableness of a petitioner‘s well-founded fear of persecution is diminished.“). Third, we simply cannot take issue with the BIA‘s finding that, considering the current conditions in Indonesia, Tjen would not be persecuted on account of his ethnicity or religion. Thus, we cannot disturb the BIA‘s conclusion that Tjen failed to establish that, if he were deported to Indonesia, there was a clear probability that he would be persecuted.

III

For the reasons stated herein, the petition for review is denied.

PETITION DENIED.

UNITED STATES of America, Plaintiff-Appellee, v. Henry Jerome COOPER, Defendant-Appellant.

No. 04-4377

United States Court of Appeals, Fourth Circuit.

Argued: May 25, 2006. Decided: June 20, 2006.

287 F.3d 287

ARGUED: Randy Virlin Cargill, Magee, Foster, Goldstein & Sayers, P.C., Roanoke, Virginia, for Appellant. Ronald Andrew Bassford, Assistant United States Attorney, Office of the United States Attorney, Roanoke, Virginia, for Appellee. ON BRIEF: John L. Brownlee, United States Attorney, Jill Lowell, Third Year Practice Law Student, Office of the United States Attorney, Roanoke, Virginia, for Appellee.

Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

PER CURIAM:

Henry Jerome Cooper pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (2000). The district court sentenced Cooper to 37 months of imprisonment. Cooper now appeals his sentence.

Cooper primarily contends that the district court improperly enhanced his sentence for assaulting a law enforcement officer during the course of immediate flight “in a manner creating a substantial risk of serious bodily injury” under U.S.S.G. § 3A1.2(b) (2003). We review the district court‘s legal determinations under the sentencing guidelines de novo and will not disturb its factual findings absent clear error. United States v. Harrison, 272 F.3d 220, 223 (4th Cir.2001). Application Note 4(A) to § 3A1.2 provides that this adjustment “applies in circumstances tantamount to aggravated assault ... against a law enforcement officer, committed in the course of, or in immediate flight following, another offense.” Further, “its applicability is limited to assaultive conduct against such official victims that is sufficiently serious to create at least a ‘substantial risk of serious bodily injury.‘” Id. Application Note 4(B) provides that “substantial risk of serious bodily injury” “includes any more serious injury that was risked, as well as actual serious bodily injury ... if it occurs.”

While we recognize that a simple assault on a law enforcement officer during the course of flight is insufficient to warrant the § 3A1.2(b) enhancement, we find that the facts of this case created a substantial risk of serious bodily injury to the law enforcement officer. The facts established that Cooper had a loaded nine millimeter firearm in his hand when he exited the vehicle, the firearm fell to the ground during a brief struggle with a law enforcement officer, and Cooper struck the officer in the face twice during the incident. When another officer retrieved the weapon and attempted to eject the magazine, it discharged into the ground. Therefore, we hold that the district court did not err in enhancing Cooper‘s sentence under § 3A1.2(b).

Cooper further contends that he is entitled to resentencing because the district court plainly erred by improperly finding facts at sentencing and applying the guidelines under a mandatory regime. See United States v. Booker, 543 U.S. 220, 267-68 (2005). At oral argument, Cooper conceded that he had failed to establish a Sixth Amendment error because the district court did not impose a sentence exceeding the maximum allowed based only on the facts he admitted. See United States v. Evans, 416 F.3d 298, 300-01 (4th Cir.2005). Inasmuch as Cooper argues that the district court plainly erred in applying the guidelines as mandatory, the record provides no nonspeculative basis for us to conclude that the treatment of the guidelines as mandatory affected the district court‘s selection of the sentence imposed. See United States v. White, 405 F.3d 208, 223 (4th Cir.2005). Therefore, Cooper is not entitled to be resentenced under Booker. See White, 405 F.3d at 223-24.

Accordingly, we affirm the decision of the district court.

AFFIRMED.