                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 30 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30048

               Plaintiff - Appellee,             D.C. No. 1:12-cr-00071-RFC

  v.
                                                 MEMORANDUM*
FRANKIE DUSHANE KINDNESS,

               Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                    Richard F. Cebull, District Judge, Presiding

                           Submitted December 17, 2013**

Before:        GOODWIN, WALLACE, and GRABER, Circuit Judges.

       Frankie Dushane Kindness appeals from the district court’s judgment and

challenges the 27-month sentence imposed following her guilty-plea conviction for

depredation of government property, in violation of 18 U.S.C. § 1361. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Kindness contends that the district court erred by imposing a six-level

official-victim sentencing enhancement under U.S.S.G. § 3A1.2(c)(1). She alleges

that she did not act wilfully and the officers’ apprehension of harm was not

objectively reasonable. We review the district court’s interpretation of the

Sentencing Guidelines de novo and its factual findings for clear error. See United

States v. Rivera-Alonzo, 584 F.3d 829, 836 (9th Cir. 2009). The record supports

the district court’s determination that Kindness assaulted the officers “in a manner

creating a substantial risk of serious bodily injury.” See U.S.S.G. § 3A1.2(c);

United States v. Acosta-Sierra, 690 F.3d 1111, 1119-20 (9th Cir. 2012) (assault

requires showing that defendant cause “a reasonable apprehension of immediate

bodily harm”).

      Kindness also contends that under section 3A1.2(c)(1), the enhancement

should not apply because the assault was not committed in the course of, or in the

immediate flight from, an offense distinct from the assault itself. To the contrary,

the enhancement is appropriate because these were “circumstances tantamount to

aggravated assault,” “committed in the course of, or in immediate flight

following,” Kindness’s commission of depredation of government property.

U.S.S.G. § 3A1.2 cmt. n.4(A).

      AFFIRMED.


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