United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 20, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10272
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRAY ANTWON DRONES, also known as
Tyray Antwoon Drones,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-64-1-Y
Before GARWOOD, DEMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Tyray Antwon Drones pleaded guilty to assault of a federal law
enforcement agent causing bodily injury in violation of 18 U.S.C.
§ 111. Drones argues that the district court erred in applying
U.S.S.G. § 2A2.2, the aggravated assault guideline, to determine
his base offense level. Drones further argues that the district
*
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opinion should not be published and is not precedent except under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.
court erred in enhancing his sentence pursuant to § 2A2.2(b)(2)(C)
on the ground that the use of a dangerous weapon had been
threatened.
This court reviews the district court’s findings of fact at
sentencing for clear error and its application of the sentencing
guidelines de novo. United States v. Anderson, 174 F.3d 515, 524
(5th Cir. 1999). Because Drones’s assault involved both the
presence of a dangerous weapon, Michael Duncan’s service firearm,
and the intent to cause bodily injury with that weapon, the
district court did not clearly err in finding that his offense
constituted aggravated assault. See § 2A2.2, comment. (n.1). The
district court could (and did) properly infer Drones’s intent to do
bodily harm with Duncan’s firearm from Drones’s actions – lunging
at Duncan, hitting Duncan about the head, and grabbing Duncan’s
firearm with both hands in an attempt to gain control of the
weapon, in addition to Drones’s initial attack upon Steven Steele.
See United States v. Morris, 131 F.3d 1136, 1138 (5th Cir. 1997).
Although Drones disputes the district court’s finding that he
attempted to wrestle the firearm away from Duncan, he has failed to
produce any evidence to the contrary to demonstrate that the
presentence report was inaccurate. See United States v. Brown, 54
F.3d 234, 242 (5th Cir. 1995); United States v. Lage, 183 F.3d 374,
383 (5th Cir. 1995). Thus, applying § 2A2.2 to set the base
offense level was proper. Because Drones threatened the use of a
2
dangerous weapon by attempting to gain control of Duncan’s firearm,
the district court did not err in enhancing Drones’s sentence in
accordance with § 2A2.2(b)(2)(C).
AFFIRMED.
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