                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-5221



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


DAVID HERMAN KALE, JR.,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00209)


Submitted:   August 8, 2007                 Decided:   August 23, 2007


Before WILKINSON, NIEMEYER, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Algernon Williams, Sr., LAW OFFICE OF ALGERNON WILLIAMS, Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            David Herman Kale, Jr., pled guilty to one count of

conspiracy to defraud the United States, in violation of 18 U.S.C.

§ 371 (2000), one count of obstructing and delaying commerce by

robbing a gas station and aiding and abetting such conduct in

violation of 18 U.S.C. §§ 1951, 2 (2000), one count of using and

brandishing a firearm during a crime of violence, in violation of

18 U.S.C.A. § 924(c) (West 2000 & Supp. 2007), and possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

(2000).     With respect to the § 924(c) conviction, the district

court found Kale intentionally fired the firearm at the pursuing

officer which makes him eligible for a mandatory minimum ten year

sentence.    On appeal, Kale argues the court’s finding was clearly

erroneous.    Finding no error, we affirm.*

            The district court’s factual findings at sentencing are

reviewed for clear error.      United States v. Hudson, 272 F.3d 260,

263 (4th Cir. 2001).         In order to disturb a court’s factual

findings,    this   court   must   be   “left    with   definite   and   firm

conviction that mistake has been committed.” United States v. May,

359 F.3d 683, 688 (4th Cir. 2004).              A court may properly make

factual findings concerning sentencing factors by a preponderance


     *
      Kale also argues that the district court erred finding that
in order for the ten year statutory mandatory minimum sentence to
apply under § 924(c)(1)(A)(iii), the firearm’s discharge did not
have to be intentional on Kale’s part. Because we find there was
sufficient evidence of intent, we decline to reach this issue.

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of the evidence.   United States v. Morris, 429 F.3d 65, 72 (4th

Cir. 2005), cert. denied, 127 S. Ct. 121 (2006).      We find the

district court did not clearly err in its factual findings.

          Accordingly, we affirm the convictions and sentence.   We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                          AFFIRMED




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