United States v. Wrice

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 27, 1997
• Docket: 96-6035
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JAN 27 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-6035 (D.C. No. CR-95-132-M) ROBERT EARL WRICE, (W.D. Okla.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before ANDERSON, KELLY, and LUCERO, Circuit Judges.

The sole issue presented by this direct criminal appeal is defendant’s

challenge to the trial court’s factual finding that defendant discharged a gun with

the intention of doing bodily harm to a federal officer. 1 Defendant challenges the

sentence he received following his conviction for forcibly assaulting, resisting,

opposing, impeding, intimidating and interfering with a federal officer engaged in

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 1 After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. official duties. See 18 U.S.C. § 111. Specifically, he challenges the sentencing

court’s application of the aggravated assault sentencing guideline, USSG § 2A2.2,

rather than the guideline for obstructing or impeding an officer, id., § 2A2.4, to

calculate defendant’s sentence.

We review the district court’s factual findings only for clear error, and

defer to the district court’s application of the guidelines to those facts. United

States v. Rue, 988 F.2d 94, 96 (10th Cir. 1993); see also United States v. Burdex,

100 F.3d 882, 884 (10th Cir. 1996) (reviewing application of sentencing

guidelines to facts only for clear error). The sentencing court applied the

aggravated assault guideline, after finding that defendant discharged a gun while

pointing it in the direction of a federal agent. See Rue, 988 F.2d at 96 (noting

application note 1 to § 2A2.2 defines aggravated assault to include a felonious

assault involving a dangerous weapon with the intent to do bodily harm). The

record fully supports this finding and the corresponding inference that defendant

fired his weapon with the intent to do bodily harm to the federal officer. The

district court’s application of § 2A2.2, therefore, was not error.

The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.

ENTERED FOR THE COURT

Carlos F. Lucero

-2- Circuit Judge

-3-