
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2247                                    UNITED STATES,                                      Appellee,                                          v.                                  DANIEL D. TAVARES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Daniel D. Tavares on brief pro se.            _________________            Donald K.  Stern, United States Attorney,  and Michael J.  Pelgro,            ________________                               __________________        Assistant U.S. Attorney, on brief for appellee.                                 ____________________                                     MAY 29, 1997                                 ____________________                 Per Curiam.  Convicted of being a felon in possession of                 __________            a  firearm,  see  18  U.S.C.    922(g)(1),  appellant  Daniel                         ___            Tavares  challenges  the  10-year  prison  sentence  that the            district court  imposed following  this court's   decision in            his last appeal.   See United States  v. Tavares, 93  F.3d 10                               ___ _____________     _______            (1st Cir. 1996)(affirming  conviction, vacating sentence, and            remanding for resentencing).  We affirm.                 As  the  facts  concerning  Tavares'   crime  and  prior            sentencing proceeding are detailed  in our earlier opinion we            will  not repeat  them here.   On  remand the  district court            found  that Tavares had committed an assault with a dangerous            weapon  and the  intent  to do  bodily harm,  as well  as the            intent to  commit another felony.1  The  court concluded that                                             1            Tavares  was  subject  to  sentencing  under  the  aggravated            assault guideline as a  result of these findings.   The court            then calculated his new sentence similarly to how it had done            so originally,  but based  on a different  factual predicate.            See Tavares, 93 F.3d at 12-13, 15-17.  Tavares again appeals,            ___ _______            contending  that the  court clearly  erred by  sentencing him            under  the  aggravated  assault guideline  and  by  departing            upward  to  sentence him  to  120  months' imprisonment,  the                                            ____________________               1The aggravated assault  guideline applies to  a felonious               1            assault involving (a) a  dangerous weapon with the intent  to            do bodily harm (i.e., not merely to frighten), or (b) serious            bodily injury, or  (c) an  intent to  commit another  felony.            See U.S.S.G.  2A2.2, comment. (n. 1).  The other felony found            ___            here was  the malicious destruction of  property in violation            of M.G.L. c. 266,   127.                                          -2-            maximum that may  be imposed  on the  offense of  conviction.            See 18 U.S.C.   924(a)(2).            ___                 On this record,  we cannot say that  the court's finding            that  Tavares  committed an  assault  with the  intent  to do            bodily  harm was  clearly erroneous.   See  United States  v.                                                   ___  _____________            Garcia, 34 F.3d  6, 10  (1st Cir.  1994).   This finding  was            ______            alone  sufficient to  support application  of the  aggravated            assault guideline.2 Similarly, the district court did not err                              2            by adding the five  level discharge adjustment under U.S.S.G.             2A2.2(b)(2)(A).   The  court  found that  Tavares fired  his            weapon as  part of the overall assault on Blake and Hunt.  As            the  evidence indicates  that  the  assailants'  conduct  was            prompted by  their prior altercation with  these individuals,            this finding was  not clearly erroneous.   Thus, the addition            of  the  discharge  adjustment  was  proper.    See  U.S.S.G.                                                            ___             1B1.3(a)(1)(authorizing   addition   of   specific   offense            characteristics based  on "all acts ...  committed during the            commission of the offense of conviction").3                                                      3                                            ____________________               2We need  not decide whether, as  the government contends,               2            an  intent to  commit  a felony  in  violation of  state  law            satisfies  2A2.2, comment., n. 1.               3Tavares also asks this court to rule that Hunt suffered a               3            minor  injury as  a matter of  law and to  vacate the 3-level            adjustment imposed under  2A2.2(b)(3)(D).  We have previously            ruled that the severity of Hunt's injury cannot be decided as            a  matter of law.  See  93 F.3d at 16.   The district court's                               ___            determination that Hunt suffered  something between a "bodily            injury"  and  a  "serious  bodily  injury"  was  not  clearly            erroneous.                                          -3-                 Finally, we  again conclude that the  district court did            not abuse its discretion in making the upward departure here.             Tavares' criminal  record, which included  evidence that  he            had committed the three violent offenses that had resulted in            the "guilty filed" dispositions,  was serious and  egregious.            The  wantonness of the offense of  conviction  also justified            the departure.   See United  States v. Hardy,  99 F.3d  1242,                             ___ ______________    _____            1248-52 (1st Cir.  1996)(upholding upward departure based  on            defendant's  repeatedly  discharging  and   discarding  semi-            automatic  weapon  in  residential  area);  United  States v.                                                        ______________            Croom,  50 F.3d 433, 435 (7th Cir. 1995)("Meeting most of the            _____            criteria for designation as an armed career criminal ... does            not  permit the  judge to impose  the penalties  designed for            those who  meet all  of the  criteria, but  it does  permit a            departure   in   the   direction   of   those   penalties.").                                   _________            Accordingly, the judgment of  the district court is affirmed.                                                                ________            Tavares' motion for bail pending appeal is moot.                                                       ____                                         -4-
