DocketNumber： 96-2247
Filed Date： 5/29/1997
Status： Precedential
Modified Date： 3/3/2016
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-2247
UNITED STATES,
Appellee,
v.
DANIEL D. TAVARES,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge] ___________________
____________________
Before
Selya, Circuit Judge, _____________
Cyr, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
____________________
Daniel D. Tavares on brief pro se. _________________
Donald K. Stern, United States Attorney, and Michael J. Pelgro, ________________ __________________
Assistant U.S. Attorney, on brief for appellee.
____________________
MAY 29, 1997
____________________
Per Curiam. Convicted of being a felon in possession of __________
a firearm, see 18 U.S.C. 922(g)(1), appellant Daniel ___
Tavares challenges the 10-year prison sentence that the
district court imposed following this court's decision in
his last appeal. See United States v. Tavares, 93 F.3d 10 ___ _____________ _______
(1st Cir. 1996)(affirming conviction, vacating sentence, and
remanding for resentencing). We affirm.
As the facts concerning Tavares' crime and prior
sentencing proceeding are detailed in our earlier opinion we
will not repeat them here. On remand the district court
found that Tavares had committed an assault with a dangerous
weapon and the intent to do bodily harm, as well as the
intent to commit another felony.1 The court concluded that 1
Tavares was subject to sentencing under the aggravated
assault guideline as a result of these findings. The court
then calculated his new sentence similarly to how it had done
so originally, but based on a different factual predicate.
See Tavares, 93 F.3d at 12-13, 15-17. Tavares again appeals, ___ _______
contending that the court clearly erred by sentencing him
under the aggravated assault guideline and by departing
upward to sentence him to 120 months' imprisonment, the
____________________
1The aggravated assault guideline applies to a felonious 1
assault involving (a) a dangerous weapon with the intent to
do bodily harm (i.e., not merely to frighten), or (b) serious
bodily injury, or (c) an intent to commit another felony.
See U.S.S.G. 2A2.2, comment. (n. 1). The other felony found ___
here was the malicious destruction of property in violation
of M.G.L. c. 266, 127.
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maximum that may be imposed on the offense of conviction.
See 18 U.S.C. 924(a)(2). ___
On this record, we cannot say that the court's finding
that Tavares committed an assault with the intent to do
bodily harm was clearly erroneous. See United States v. ___ _____________
Garcia, 34 F.3d 6, 10 (1st Cir. 1994). This finding was ______
alone sufficient to support application of the aggravated
assault guideline.2 Similarly, the district court did not err 2
by adding the five level discharge adjustment under U.S.S.G.
2A2.2(b)(2)(A). The court found that Tavares fired his
weapon as part of the overall assault on Blake and Hunt. As
the evidence indicates that the assailants' conduct was
prompted by their prior altercation with these individuals,
this finding was not clearly erroneous. Thus, the addition
of the discharge adjustment was proper. See U.S.S.G. ___
1B1.3(a)(1)(authorizing addition of specific offense
characteristics based on "all acts ... committed during the
commission of the offense of conviction").3 3
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2We need not decide whether, as the government contends, 2
an intent to commit a felony in violation of state law
satisfies 2A2.2, comment., n. 1.
3Tavares also asks this court to rule that Hunt suffered a 3
minor injury as a matter of law and to vacate the 3-level
adjustment imposed under 2A2.2(b)(3)(D). We have previously
ruled that the severity of Hunt's injury cannot be decided as
a matter of law. See 93 F.3d at 16. The district court's ___
determination that Hunt suffered something between a "bodily
injury" and a "serious bodily injury" was not clearly
erroneous.
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Finally, we again conclude that the district court did
not abuse its discretion in making the upward departure here.
Tavares' criminal record, which included evidence that he
had committed the three violent offenses that had resulted in
the "guilty filed" dispositions, was serious and egregious.
The wantonness of the offense of conviction also justified
the departure. See United States v. Hardy, 99 F.3d 1242, ___ ______________ _____
1248-52 (1st Cir. 1996)(upholding upward departure based on
defendant's repeatedly discharging and discarding semi-
automatic weapon in residential area); United States v. ______________
Croom, 50 F.3d 433, 435 (7th Cir. 1995)("Meeting most of the _____
criteria for designation as an armed career criminal ... does
not permit the judge to impose the penalties designed for
those who meet all of the criteria, but it does permit a
departure in the direction of those penalties."). _________
Accordingly, the judgment of the district court is affirmed. ________
Tavares' motion for bail pending appeal is moot. ____
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