At page 743 Determining requisite intent for aggravated assault conviction18 citing casesNo. 91-8528
- United States v. McLaughlin, 82 F. App'x 741 (3d Cir. 2003).unpublishedU.S.S.G. § 4A1.2(b)(1); United States v. Skinners, 892 F.2d 742, 743-44 (8th Cir.1989).
- United States v. Kahbir Ahmad, 202 F.3d 588 (2d Cir. 2000).publishedThe government cites numerous cases finding state offenses to be relevant conduct where the Guidelines refer to “other offenses.” See, e.g., United States v. Armstead, 114 F.3d 504, 513 (5th Cir.1997) (“another felony offense,” § 2K2.1(b)(…
- United States v. Charles E. Dotson, 83 F.3d 425 (8th Cir. 1996).unpublished See United States v. Garcia, 34 F.3d 6, 10 (1st Cir. 1994) (district court's finding of intent in context of § 2A2.2 is factual finding reviewed for clear error); United States v. Madewell, 917 F.2d 301, 307 (7th Cir. 1990) (holding distri…
- United States v. Lewis, 40 F.3d 1325 (1st Cir. 1994).publishedThe application notes clarify any possible ambiguity by stating that “criminal history points are based on the sentence pronounced, not the length of time actually served.” U.S.S.G. § 4A1.2, comment, (n. 2); see also United States v. DePri…
- United States v. Kevin O. Depriest, 6 F.3d 1201 (7th Cir. 1993).publishedCf. United States v. Adams, 988 F.2d 493, 496-97 (4th Cir.1993) (stating that where all but eight months' imprisonment suspended on defendant's sentence, the length of sentence of imprisonment for purposes of § 4A1.1 was eight months); Uni…
- United States v. Willie Corbin, Jr., 998 F.2d 1377 (7th Cir. 1993).publishedMadewell, 917 F.2d at 306 ; see also United States v. Concepcion, 983 F.2d 369, 386-88 (2d Cir.1992), petition for cert. filed (U.S. June 23, 1993) (No. 92-9190); United States v. Harris, 932 F.2d 1529, 1537 (5th Cir.), cert. denied, — U.S…
- United States v. Jollie Rocky Allen Smith, III, 997 F.2d 396 (8th Cir. 1993).published United States v. Shinners, 892 F.2d 742, 743 (8th Cir.1989) (per curiam).
- United States v. Rodney Pollard, 986 F.2d 44 (3d Cir. 1993).publishedSee United States v. Byrd, 954 F.2d 586, 589 (9th Cir. 1992); United States v. Bos, 917 F.2d 1178, 1181 (9th Cir.1990) (defendant who pleaded guilty to a single count of mail fraud for setting his business on fire was properly sentenced un…
- United States v. John F. Tabaka, Jr., 982 F.2d 100 (3d Cir. 1992).publishedSee United States v. Pettit, 938 F.2d 175, 178 (10th Cir.1991); United States v. Davis, 929 F.2d 930, 932-33 (3d Cir.1991); United States v. Altman, 901 F.2d 1161, 1166 (2d Cir.1990); United States v. Skinners, 892 F.2d 742, 743-44 (8th Ci…
- United States v. Raymond Pedroli, 979 F.2d 116 (8th Cir. 1992).publishedU.S.S.G. § 4A1.2, comment, (n. 2); United States v. Skinners, 892 F.2d 742, 743-44 (8th Cir.1989).
Show 5 more citing cases
- United States v. Francis L. Barton, 983 F.2d 1073 (7th Cir. 1992).unpublished(No. 91-8528)
- United States v. Hamilton, 929 F.2d 1126 (6th Cir. 1991).published (guideline enhancement not clearly erroneous where weapon discharge was unintentional)
- United States v. Bill Eric Willis, 925 F.2d 359 (10th Cir. 1991).publishedCf. United States v. Smith, 910 F.2d 326, 329-30 (6th Cir.1990) (referring to commentary to § 2K2.1 of the pre-November 1, 1989 sentencing guidelines in holding that § 2K2.2 of the guidelines apply to state crimes as well as federal); Unit…
- United States v. Natalie C. Telemaque, 934 F.2d 169 (8th Cir. 1991).publishedSee United States v. Skinners, 892 F.2d 742, 743 (8th Cir.1989).
- United States v. Kenneth L. Schomburg, 929 F.2d 505 (9th Cir. 1991).published(defendant sentenced to two and one-half years paroled after five months: length of the prior sentence two and one-half years for purposes of 4A1.1)
Other citing cases
- United States v. Sterling R. Smith, 5 F.3d 259 (7th Cir. 1993).published
v.
John Phillip SHINNERS, Appellant
Appellant John Phillip Shinners, a convicted felon, pleaded guilty to one count of possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Supp. V 1987) and was sentenced to a term of sixty months pursuant to the United States Sentencing Guidelines. Appellant argues that he should not have been sentenced under the aggravated assault provision of the Guidelines and that the District Court [1] incorrectly assigned him three criminal history points for a prior drug offense conviction. United States Sentencing Commission, Guidelines Manual, §§ 2A2.2 & App. C, amends. 85 & 86, 4Al.l(a) (Nov.1989) (hereinafter “U.S.S. G.”).
On October 28, 1988, Shinners was in a Rainbow Foods store in Minneapolis, Minnesota. A store employee saw appellant acting suspiciously and suspected him of shoplifting. Three store employees followed Shinners to the parking lot and tried to apprehend him as he entered his car. Appellant struggled with the first employee who attempted to stop him and a second employee grabbed appellant from behind. Shinners then pulled a Colt .357 magnum revolver from inside his ear and continued to struggle with the store employees. During the scuffle, the revolver discharged into the air. Shinners shouted, “I will kill you, you son of a bitch,” although it is disputed whether he yelled this while brandishing the firearm or after he was wrestled to the ground and disarmed.
Section 2K2.1 of the Guidelines sets out the base offense level for the illegal possession of a firearm and further provides that "[i]f the defendant used the firearm in committing or attempting another offense, apply the guideline in respect to such other offense.” U.S.S.G. § 2K2.1(c)(l) & App. C, amend. 189. The District Court found that Shinners’s conduct constituted aggravated assault and sentenced him under the appropriate Guidelines provision, section 2A2.2. Appellant’s base offense level was fifteen, plus a five-level increase because the firearm discharged during the assault.
When an application of the Guidelines is at issue, this Court accepts the findings of fact of the district court unless they are clearly erroneous. 18 U.S.C. § 3742(d) (Supp. V 1987). After a careful review of the factual findings of the District Court, we are convinced that it was not clearly erroneous to conclude that appellant’s conduct constituted aggravated assault. On the basis of these findings, we therefore uphold the sentence imposed by the District Court. See 8th Cir.R. 14.
Shinners’s argument that the District Court erred in calculating his criminal history score is without merit. Section 4Al.l(a) of the Guidelines requires that three points be added to the base offense level for each previous sentence of imprisonment that exceeded one year and one month. In 1973, appellant was given an indeterminate sentence not to exceed two and a half years. After serving approximately five months, appellant was paroled. Shinners argues that his criminal history points therefore should be figured on the basis of the five months he actually served rather than on the basis of the total thirty-month sentence he received. See U.S.S.G. 4A1.2(b)(2). This argument is expressly[*744] contradicted by the Guidelines, which state “The term ‘sentence of imprisonment’ means a sentence of incarceration and refers to the maximum sentence imposed.” U.S.S.G. § 4A1.2(b)(l).
Affirmed.
. The Honorable D. Brook Bartlett, United States District Judge for the Western District of Missouri.