United States v. McCloy

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 19, 2001
• Docket: 01-40335
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40335 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID WAYNE McCLOY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas (4:00-CR-57-ALL) -------------------- July 17, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Defendant-Appellant David Wayne McCloy appeals the sentence

imposed by the district court following his guilty-plea conviction

for possession of stolen United States mail. He argues that the

district court erred in increasing his offense level by three

levels pursuant to United States Sentence Guideline § 3A1.2(b). He

contends that he was merely attempting to flee and that his actions

did not rise to the level of an assault that created a substantial

risk of serious bodily injury. We disagree. McCloy’s actions did

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. amount to an aggravated assault on Officer A.L. Privett, given

McCloy’s attempt to flee immediately after committing the instant

offense and his attempt to take Officer Privett’s firearm during

this altercation. Therefore, the district court did not err in

increasing his offense level pursuant to § 3A1.2(b). See United

States v. Ortiz-Granados, 12 F.3d 39, 41-43 (5th Cir. 1994).

McCloy argues that the district court abused its discretion in

departing upward from the applicable Sentencing Guideline range in

determining his sentence. The district court concluded that an

upward departure was warranted because McCloy had more than twice

the number of criminal history points necessary for a Category VI,

had violated the conditions of his community release following

several convictions, had committed crimes on a frequent basis, and

had committed the instant offense less than one year after his

release from the Arkansas Department of Corrections. As the

district court gave acceptable reasons for the upward departure and

the extent of the upward departure was reasonable, the district

court did not abuse its discretion in departing upward in

determining McCloy’s sentence. See United States v. Route, 104

F.3d 59, 64 (5th Cir. 1997).

AFFIRMED.