

                    [NOT FOR PUBLICATION]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. 

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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. 

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     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.                                                           

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