IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-10150
Conference Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH GARNER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:94-CR-034-E c/w 66
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August 23, 1995
Before KING, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
Kenneth Wade Garner contends that the district court
erred by increasing his base offense level three levels for
assaulting a law enforcement officer. This court reviews
district court findings of fact regarding sentencing guideline
issues for clear error. United States v. Mir, 919 F.2d 940, 943
(5th Cir. 1990).
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-10150
-2-
A defendant's base offense level is increased by three
levels when a defendant assaults a law-enforcement officer in a
manner creating a substantial risk of serious bodily injury,
knowing or having reasonable cause to believe that the person was
a law enforcement officer. U.S.S.G. § 3A1.2(b). Adjustments
under this guideline are determined on the basis of all relevant
conduct as defined by § 1B1.3. United States v. Gonzales, 996
F.2d 88, 93 (5th Cir. 1993).
The PSR and testimony at sentencing established that the FBI
had reason to believe that Garner was holding his kidnapping
victim in a specific motel room and was armed. Immediately after
using a battering ram to effect entry into Garner's motel room,
Garner was informed "FBI, keep your hands in the air," in an
audible manner. He sat up on the bed, put his hands in the air
initially, and then put his hands in front of his eyes as if to
shield the light from the flashlights. He was again commanded
"FBI, keep your hands in the air."
Garner took evasive action, retrieved a .38 revolver from
under his pillow, struggled with an FBI agent for the gun, pushed
the gun below the agent's belt line, and pulled the trigger. The
gun misfired. Garner offered no rebuttal evidence to support his
assertion that he did not know that the individuals were law
enforcement officers. See Mir, 919 F.2d at 943. The district
court did not clearly err regarding the three-level upward
adjustment. See United States v. Rodriguez, 897 F.2d 1324, 1328
(5th Cir.), cert. denied, 498 U.S. 857 (1990).
AFFIRMED.