United States v. Stephney ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40290
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER DARNELL STEPHNEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-98-CR-19-1
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October 20, 1999
Before JONES, WIENER, and STEWART, Circuit Judges.
PER CURIAM:*
Christopher Darnell Stephney appeals his sentence following
his conviction for being a felon in possession of a firearm under
18 U.S.C. § 922(g)(1). Stephney argues that he should not have
been sentenced under the guideline applicable to aggravated
assault. Guidelines § 2K2.1 prescribes the penalties for
violations of 18 U.S.C. § 922(g)(1). That guideline directs
that, if the defendant used or possessed the firearm in
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-40290
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connection with the commission or attempted commission of another
offense, the guideline applicable to that other offense is to be
used. U.S.S.G. § 2K2.1(c)(1)(A). The probation officer
recommended and the district court adopted the use of § 2A2.2,
which is captioned, "Aggravated Assault." The application note
to § 2A2.2 defines aggravated assault as "a felonious assault
that involved (A) a dangerous weapon with intent to do bodily
harm (i.e., not merely to frighten)...." U.S.S.G. § 2A2.2,
comment. (n.1). This court has found that the aggravated assault
of § 2A2.2 is "akin to the federal offense of assault with a
dangerous weapon with intent to do bodily harm." United States
v. Perez, 897 F.2d 751, 753 (5th Cir. 1990). The actor must be
judged not by his undisclosed purpose to frighten, but from his
visible conduct and "what one in the position of the victim might
reasonably conclude." Id.The facts in the presentence report (PSR) adopted by the
district court are that Stephney put five shots through the front
door of the residence of an individual that he had been in a
physical altercation earlier in the day and had threatened to
shoot because that individual was homosexual. See United States
v. Lowder, 148 F.3d 548, 552 (5th Cir. 1998); United States v.
Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994). Stephney offered
no evidence at the sentencing hearing to rebut the findings in
the PSR. A victim would be reasonable in concluding that
someone, who had threatened to shoot him earlier in the day and
who then put five shots into his front door, intended to do him
No. 99-40290
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bodily harm. The determination that Stephney committed an
aggravated assault is not clearly erroneous.
AFFIRMED.