United States v. Baez

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 14, 2003
• Docket: 02-50398
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 14, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-50398 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GILBERT ANTHONY BAEZ, also known as Gilbert Baez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-01-CR-17-1 --------------------

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Gilbert Anthony Baez appeals from his 108-month sentence

following his guilty plea to attempted murder in violation of 18

U.S.C. § 1113. Baez seriously injured a bystander when he fired at

least two shots from a 9mm handgun into a crowd intending to kill

an individual with whom he had recently fought. The district court

departed upward at sentencing due to Baez's use of a weapon during

the offense.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50398 -2-

Baez argues that the upward departure was erroneous because

U.S.S.G. § 2A2.1, the guideline for attempted murder, takes into

account the use of a dangerous weapon. Baez relies on United

States v. Kelly, 1 F.3d 1137, 1142 (10th Cir. 1993). Because Baez

did not object to the district court's upward departure at

sentencing, our review is for plain error. See United States v.

Gore, 298 F.3d 322, 324 (5th Cir. 2002).

Assuming, without deciding, that the use of a dangerous weapon

is taken into account by § 2A2.1, it is an encouraged factor that

the district court may use for departure if it is present to a

degree that is exceptional or that makes the case different from

the ordinary case where the factor is present. See Koon v. United

States, 518 U.S. 81, 96 (1996); see also U.S.S.G. § 5K2.6. Here,

Baez fired multiple shots into a crowd, placing other individuals

in danger of death or serious bodily injury. Baez has not shown

that the district court's upward departure was plain error. See

U.S.S.G. § 2A2.1, comment. (n.3).

AFFIRMED.