IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40335
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID WAYNE McCLOY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(4:00-CR-57-ALL)
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July 17, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant David Wayne McCloy appeals the sentence
imposed by the district court following his guilty-plea conviction
for possession of stolen United States mail. He argues that the
district court erred in increasing his offense level by three
levels pursuant to United States Sentence Guideline § 3A1.2(b). He
contends that he was merely attempting to flee and that his actions
did not rise to the level of an assault that created a substantial
risk of serious bodily injury. We disagree. McCloy’s actions did
*
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that this opinion should not be published and is not precedent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.
amount to an aggravated assault on Officer A.L. Privett, given
McCloy’s attempt to flee immediately after committing the instant
offense and his attempt to take Officer Privett’s firearm during
this altercation. Therefore, the district court did not err in
increasing his offense level pursuant to § 3A1.2(b). See United
States v. Ortiz-Granados, 12 F.3d 39, 41-43 (5th Cir. 1994).
McCloy argues that the district court abused its discretion in
departing upward from the applicable Sentencing Guideline range in
determining his sentence. The district court concluded that an
upward departure was warranted because McCloy had more than twice
the number of criminal history points necessary for a Category VI,
had violated the conditions of his community release following
several convictions, had committed crimes on a frequent basis, and
had committed the instant offense less than one year after his
release from the Arkansas Department of Corrections. As the
district court gave acceptable reasons for the upward departure and
the extent of the upward departure was reasonable, the district
court did not abuse its discretion in departing upward in
determining McCloy’s sentence. See United States v. Route, 104
F.3d 59, 64 (5th Cir. 1997).
AFFIRMED.