          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                    FILED
                                                                  October 22, 2007
                                 No. 06-51312
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

ROSDOLM T PIERRE-LOUIS

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 6:06-CR-52-ALL


Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judge.
PER CURIAM:*
      Rosdolm T. Pierre-Louis (Pierre) appeals his jury trial conviction and 72-
month sentence for one count of assault with a dangerous weapon within the
maritime and territorial jurisdiction of the United States, in violation of
18 U.S.C. §§ 7(3) and 113(a)(3).
      Pierre argues that the district court erred in failing to charge the jury with
the lesser-included offense of simple battery. With respect to the sentence
imposed, Pierre contends that the district further erred by enhancing his base

      *
      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should not be published and is not precedent except under the limited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. 06-51312

offense level by four levels for using a dangerous weapon, and by two levels for
obstructing justice. Pierre additionally argues that the district court failed to
adequately explain its reasons for imposing a one-month upward adjustment to
the 57 to 71 months sentencing range calculated under the Sentencing
Guidelines.
      The charge against Pierre stemmed from a domestic dispute turned violent
that occurred in the residence of Pierre’s ex-wife that was located on a military
base in Fort Hood, Texas.      The ex-wife, Lora Madison, and three of her
daughters, testified that Pierre used a metal object such as a hammer or
screwdriver to strike both Madison and the eldest daughter, Patricia Robinson,
during the fracas that ensued.
      Pierre was the father of two of Madison’s daughters, including Patricia,
who along with a younger brother and her two sisters attempted to break up the
fight between their parents. Pierre admitted at trial that he did in fact act on
reflex and turn and strike Patricia after he felt a stabbing sensation in the back
of his head. However, he denied knowing it was Patricia until after he struck
her, and also denied using a weapon of any kind on Patricia or Madison during
the altercation.
      Although a weapon was not found during a subsequent search of Pierre’s
residence, there was testimony that Pierre made untrue statements, including
his denial to an FBI Special Agent that he was even in Foot Hood on the day of
the altercation. The jury acquitted Pierre of a charge of assaulting his ex-wife
with intent to commit murder, but convicted him of assaulting his daughter,
Patricia, with a dangerous weapon.
      Pierre’s argument that he was entitled to have the jury charged with the
lesser-included offense of simple battery is without merit. This court has held
that “a district court may give a lesser-included offense instruction, if, but only
if, (1) the elements of the offense are a subset of the elements of the charged
offense, and (2) the evidence at trial permits a jury to rationally find the

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defendant guilty of the lesser offense and acquit him of the greater offense.”
United States v. Estrada-Fernandez, 150 F.3d 491, 494 (5th Cir. 1998). Although
this court also held in Estrada that the offense of simple assault set forth in
18 U.S.C. § 113(a)(5) is a lesser-included offense of assault with a dangerous
weapon, which is set forth in § 113(a)(3), the record does not show any evidence
that a simple assault on Patricia Robinson actually occurred. Pierre therefore
has failed to satisfy the second prong of Estrada.
      As for Pierre’s second argument, U.S.S.G. § 1B1.1, which defines a
“dangerous weapon” for sentencing purposes, only requires that a defendant
have used an object that closely resembles an instrument capable of inflicting
death or serious bodily injury. In light of the record as a whole, Pierre has not
shown that the district court erred by enhancing his base offense level by four
levels pursuant to U.S.S.G. § 2A2.2(b)(2)(B) for using a dangerous weapon. See
United States v. Olano, 507 U.S. 725, 734 (1993).
      Pierre’s third argument on appeal is that the district court erred by failing
to adequately detail its reasons for applying § 3C1.1 of the Sentencing
Guidelines to enhance his base offense level by two levels on the grounds that
he obstructed justice by committing perjury. The record, however, shows that
the district court did in fact set forth reasons for this two level enhancement,
including its observations of Pierre’s trial testimony and a statement that it
adopted Pierre’s presentence report, which in turn set forth detailed reasons for
the application of this enhancement. This court has held that a separate and
clear finding on each element of alleged perjury, while preferable, is not
required. United States v. Como, 53 F.3d 87, 89 (5th Cir. 1995). Nor does
U.S.S.G. § 3C1.1 require a district court to establish each specific and individual
element of perjury. In light of the record taken as a whole, Pierre’s third
argument is without merit.
      In his final argument, Pierre contends the district court gave no
explanation for its one-month upward departure from the 57 to 71 month

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advisory sentencing range calculated under the Guidelines. Since Pierre failed
to raise this objection in the district court, the alleged error is reviewed for plain
error. Olano, 507 U.S. at 734. Pierre must therefore show that (1) there was an
error, (2) the error was clear or obvious, and (3) the error affected his substantial
rights and resulted in a manifest miscarriage of justice. Id.
      This court reviews a departure from the Guidelines for an abuse of
discretion. United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). In its
statement of reasons, the district court stated that it departed upward from the
advisory guidelines range pursuant to U.S.S.G. § 4A1.3(a)(2)(C) based on the
defendant’s failure to comply with an administrative order (violation of
protective order) on several occasions. Thus, the district court did in fact clearly
state its reasons for the one-month upward departure, reasons that are,
moreover, detailed at length in the PSR, which the district court adopted without
change. Pierre’s fourth argument is also without merit.
      The judgment of the district court is AFFIRMED.




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