Sentencing; Enhancement for recklessly creating a substantial risk of “serious bodily injury” (USSG § 3C1.2); Vulnerable body area; Enhancement for possessing a firearm in connection with another felony (§ 2K2.1(b)(6)(B)); Possessing cocaine with intent to distribute; Preponderance of the evidence; Comparing United States v Falls (Unpub 6th Cir); Stolen firearm enhancement (§ 2K2.1(b)(4)(A)); Reliance on police reports; Comparing United States v Black (Unpub 6th Cir); Consecutive sentences; Plain error review

[This appeal was from the WD-MI.] The court affirmed the district court’s application of enhancements for (1) recklessly creating a substantial risk of serious bodily injury, (2) possessing a firearm in connection with another felony, and (3) a stolen gun in sentencing defendant-Clay. And it found that he failed to show plain error in the district court’s decision to impose his sentence consecutive to any potential state incarceration arising from parole revocation. He pled guilty to FIP after he “caused a late-night disturbance with a firearm at a convenience store. When officers arrived and” tried to handcuff him, he resisted and bit one of them in the groin. Officers found cash and cocaine in his pockets. Rejecting his objections to the Probation Office’s recommended enhancements, the district court sentenced Clay to 151 months, to run consecutive to any prison term arising from revocation of his paroled state sentences. On appeal, the court first held that the record supported application of the reckless endangerment enhancement. It focused on three key facts: “(1) Clay bit the officer’s penis; (2) with enough force to cause an injury requiring medical treatment; and (3) the officer had blood on his groin. Taken together, these facts show that Clay’s biting easily could have caused extreme physical pain, protracted impairment of penile function, or an injury requiring significant medical intervention.” While the record was not sufficient “to conclude that the biting actually caused a serious bodily injury, it is enough to conclude that there was a substantial risk of such injury.” As to application of § 2K2.1(b)(6)(B)’s four-point enhancement, the court held that the district court did not clearly err in determining “that a preponderance of the evidence proved Clay had the requisite intent to distribute” the cocaine in his pocket. It “adopted the presentence report’s finding, based on a field test, that Clay had approximately 16 grams” and the court used that figure. This amount was “significantly more than an average cocaine user would carry” and was packaged “into 11 small baggies within” a larger bag. The court also found that the district court did not clearly err in relying on “police reports to conclude that Clay possessed a stolen firearm.”