United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 14, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-50398
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERT ANTHONY BAEZ,
also known as Gilbert Baez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-01-CR-17-1
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Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Gilbert Anthony Baez appeals from his 108-month sentence
following his guilty plea to attempted murder in violation of 18
U.S.C. § 1113. Baez seriously injured a bystander when he fired at
least two shots from a 9mm handgun into a crowd intending to kill
an individual with whom he had recently fought. The district court
departed upward at sentencing due to Baez's use of a weapon during
the offense.
*
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that this opinion should not be published and is not precedent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. 02-50398
-2-
Baez argues that the upward departure was erroneous because
U.S.S.G. § 2A2.1, the guideline for attempted murder, takes into
account the use of a dangerous weapon. Baez relies on United
States v. Kelly, 1 F.3d 1137, 1142 (10th Cir. 1993). Because Baez
did not object to the district court's upward departure at
sentencing, our review is for plain error. See United States v.
Gore, 298 F.3d 322, 324 (5th Cir. 2002).
Assuming, without deciding, that the use of a dangerous weapon
is taken into account by § 2A2.1, it is an encouraged factor that
the district court may use for departure if it is present to a
degree that is exceptional or that makes the case different from
the ordinary case where the factor is present. See Koon v. United
States, 518 U.S. 81, 96 (1996); see also U.S.S.G. § 5K2.6. Here,
Baez fired multiple shots into a crowd, placing other individuals
in danger of death or serious bodily injury. Baez has not shown
that the district court's upward departure was plain error. See
U.S.S.G. § 2A2.1, comment. (n.3).
AFFIRMED.