IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40258
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY HORACE, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:97--CR-105-1
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November 11, 1998
Before REAVLEY, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Timothy Horace, Jr. argues that the district court erred in
enhancing his offense level by seven levels based on his
codefendant’s discharge of a firearm during the commission of the
offense. He further argues that the district court erred in
increasing his offense level based on the victim suffering a
serious bodily injury within the meaning of U.S.S.G.
*
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that this opinion should not be published and is not precedent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. 98-40258
-2-
§ 2B3.1(b)(3)(B). Horace also argues that the district court
erred in refusing to reduce his offense level by two levels for
the acceptance of responsibility.
We have reviewed the record including the presentence report
and have determined that the district court did not clearly err
in its factual findings and did not misapply the Sentencing
Guidelines in sentencing Horace.
There was reliable evidence in the presentence report (PSR)
that was adopted by the district court revealing that Horace
along with his coconspirators planned to discharge the weapon to
frighten the victim. There was also reliable evidence that
showed that the discharge of the weapon was reasonably
foreseeable to Horace. The district court did not err in making
the seven-level adjustment under § 2B3.1(b)(2)(A). See
§ 1B1.3(a)(1)(A), (B); United States v. Burton, 126 F.3d 666,
678-79 (5th Cir. 1997).
There was also reliable evidence that the victim sustained a
severe injury which caused him extreme pain and required minor
surgery to correct. Therefore, the district court did not err in
increasing Horace’s offense level based on the victim’s
sustaining a serious bodily injury. See § 1B1.1, comment. (n.1
(j)); United States v. Price, 149 F.3d 352, 354 (5th Cir. 1998).
Lastly, the district court did not err in denying Horace a
downward adjustment for acceptance of responsibility because
Horace failed to truthfully admit in a timely manner his conduct
which occurred during the offense. See § 3E1.1, comment.
No. 98-40258
-3-
(n.1(h)); United States v. Diaz, 39 F.3d 568, 572 (5th Cir.
1994).
AFFIRMED.