United States v. Hernandez-Conde , 301 F. App'x 372 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 8, 2008
No. 07-41144
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AMADEO HERNANDEZ-CONDE, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 7:06-CR-1008-ALL
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Amadeo Hernandez-Conde, Jr., appeals the 151-month sentence imposed
following his guilty plea conviction of possession with intent to distribute more
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-41144
than 100 kilograms of marihuana and assaulting, resisting, or impeding certain
officers or employees by means and use of a dangerous weapon. He argues that
the district court erred when it applied a two-level enhancement, pursuant to
U.S.S.G. § 2D1.1(b)(1), for using his vehicle as a deadly weapon in an attempt
to evade arrest and a six-level enhancement, pursuant to U.S.S.G. § 3A1.2(c), for
assaulting a police officer with his vehicle.
Hernandez-Conde asserts that his vehicle cannot be considered a danger-
ous weapon, because he did not use it with the intent to commit bodily injury.
Similarly, he contends that he did not commit aggravated assault, because he
did not act with a specific intent to injure and did not create a substantial risk
of serious bodily injury.
According to testimony, Border Patrol Agent Adam Roy Ruiz pursued Her-
nandez-Conde’s vehicle into an orange grove, where Hernandez-Conde came to
a complete stop against a tree. When Hernandez-Conde opened the driver’s side
door, it appeared that he was either surrendering or preparing to escape on foot,
so Ruiz parked his vehicle behind Hernandez-Conde’s, unbuckled his safety belt,
and opened the door. As Ruiz was about to exit the vehicle, Hernandez-Conde
quickly closed his door, backed up, and intentionally struck Ruiz’s vehicle.
The impact was hard enough that Ruiz felt the vehicle move backward.
In addition, although Ruiz’s vehicle received only minimal damage, Hernandez-
Conde’s suffered a smashed-in trunk and tail light. Hernandez then continued
to lead officials on a chase through two communities, during which Hernandez-
Conde drove recklessly, even attempting to “T-bone” a police cruiser and trying
to swerve into Ruiz’s vehicle for a second time. The chase ended only after Her-
nandez-Conde lost control of his vehicle and became stuck in a ditch. Ruiz be-
lieved that Hernandez-Conde deliberately used his vehicle to intimidate officers.
After reviewing the district court’s findings of fact for clear error and its
application of those facts to the sentencing guidelines de novo, we conclude that
the court did not clearly err in applying either enhancement. United States v.
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No. 07-41144
Charon, 442 F.3d 881, 887 (5th Cir.), cert. denied, 549 U.S. 915 (2006). The in-
tent to commit bodily injury can be inferred, and a vehicle can be a dangerous
weapon when used to strike another vehicle. See United States v. Morris, 131
F.3d 1136, 1137-39 (5th Cir. 1997); United States v. Perez, 897 F.2d 751, 753 (5th
Cir. 1990). We have upheld the application of an enhancement for assaulting an
official even where the defendant narrowly missed striking a patrol car. United
States v. Gillyard, 261 F.3d 506, 510 (5th Cir. 2001). Also, although Ruiz was
not injured, Hernandez-Conde’s action in unnecessarily striking the vehicle cre-
ated a substantial risk of bodily harm. See id.
Moreover, the presentence report (“PSR”) generally bears sufficient indicia
of reliability to be considered as evidence during a sentencing hearing. United
States v. Roush, 466 F.3d 380, 387 (5th Cir. 2006). The defendant bears the bur-
den of showing that the PSR’s findings cannot be relied on because they are un-
reliable, inaccurate, or materially untrue. United States v. Londono, 285 F.3d
348, 354 (5th Cir. 2002). In the PSR, the probation officer found that Hernan-
dez-Conde used his vehicle as a dangerous weapon when he “stopped and as-
saulted the agent by intentionally striking the agent’s vehicle with his vehicle.”
Hernandez presents no convincing evidence that the probation officer’s finding
was unreliable or materially untrue.
The judgment of sentence is AFFIRMED.
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