United States v. Gomez ( 2021 )

Case: 20-50865 Document: 00515811412 Page: 1 Date Filed: 04/07/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 20-50865
FILED
April 7, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Diseray Gomez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:13-CR-192-1
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
In 2013, Diseray Gomez pleaded guilty to aiding and abetting
possession with intent to distribute methamphetamine and was sentenced to
five years of probation. In 2015, she violated her probation and was sentenced
to 24 months in prison and four years of supervised release, which she later
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50865 Document: 00515811412 Page: 2 Date Filed: 04/07/2021
No. 20-50865
violated thus incurring more time in prison and on supervised release. Most
recently, the district court revoked her supervised release for violating the
condition to not commit another federal, state, or local crime when it ruled
that she committed the state crime of aggravated assault with a deadly
weapon. The district court sentenced her to 24 months in prison with no
term of supervised release. On appeal, she contends that the Government’s
evidence was insufficient to prove that she committed the offense.
We review a district court’s decision to revoke supervised release for
abuse of discretion. United States v. Spraglin, 418 F.3d 479, 480 (5th Cir.
2005). The Government had to prove by a preponderance of the evidence
that Gomez (1) intentionally or knowingly; (2) threatened someone; (3) with
imminent bodily injury; (4) while exhibiting a deadly weapon. See United
States v. Alaniz-Alaniz, 38 F.3d 788, 792 (5th Cir. 1994); Philmon v. State, 609
S.W.3d 532, 536 (Tex. Crim. App. 2020).
Viewed in the light most favorable to the Government, Alaniz-Alaniz,
38 F.3d at 792, the revocation hearing evidence in this case showed that
Gomez had an altercation with individuals in a parking lot, retrieved a knife
from her vehicle, and stabbed at the other individuals’ vehicle with the knife.
See Victor v. State, 874 S.W.2d 748, 751 (Tex. App. 1994) (holding that
evidence of brandishing motions can be offered to establish that a knife is a
deadly weapon). Thus, the district court did not abuse its discretion in
revoking Gomez’s supervised release for committing aggravated assault with
a deadly weapon. See Spraglin, 418 F.3d at 480.
The district court’s judgment is AFFIRMED.
2