                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-4960



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


MARLO ANTONIO PERRY,

                Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Anderson.    Henry M. Herlong, Jr., District
Judge. (8:07-cr-00278)


Submitted:   April 25, 2008                 Decided:   June 19, 2008


Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, E. Jean Howard, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Marlo Antonio Perry appeals his sentence on a guilty plea

to one count of forcibly assaulting a corrections officer while she

was engaged in her official duties, in violation of 18 U.S.C.

§ 111(a) (2000).     The district court sentenced Perry to eighty-

seven months’ imprisonment and three years of supervised release,

to run consecutive to the sentence Perry presently is serving.

Specifically, Perry challenges the district court’s application of

a four-level upward adjustment imposed pursuant to U.S. Sentencing

Guidelines Manual (“USSG”) § 2A2.2(b)(2)(B) (2006), for use of a

dangerous weapon.    We affirm.

          The uncontested facts of the assault are that Perry

assaulted a correctional officer by throwing a hard plastic food

tray at her, causing radial tunnel syndrome in her left arm, and

leaving her with permanent injury and disability relative to the

use of her arm.    Perry claims error on the basis that the district

court considered the results of the assault in its determination

that the adjustment was appropriate.

          The     Guidelines    define    “dangerous     weapon”    as   “an

instrument capable of inflicting death or serious bodily injury,”

USSG § 1B1.1, application n.1.     We previously have held that “what

constitutes   a   dangerous    weapon    depends   not   on   the   object’s

intrinsic character but on its capacity, given ‘the manner of its

use,’ to endanger life or inflict serious physical harm.”            United


                                  - 2 -
States v. Sturgis, 48 F.3d 784, 787 (4th Cir. 1995) (quoting United

States v. Johnson, 324 F.2d 264, 266 (4th Cir. 1963)).       See also

United States v. Moore, 846 F.2d 1163, 1166 (8th Cir. 1988).

Accordingly, an instrument need not be inherently dangerous to be

a dangerous weapon, and “innocuous objects or instruments may

become capable of inflicting serious injury when put to assaultive

use.”   Sturgis, 48 F.3d at 787.

           Applying these standards of consideration to the present

case, we find that, while the plastic food tray was not inherently

dangerous, and, under other circumstances, was innocuous, Perry’s

use of the tray as an assaultive weapon was clearly capable of, and

did, inflict serious injury.        Thus, both as defined under the

Guidelines, and in light of applicable law, Perry’s use of the tray

under the circumstances in which he used it, and considering the

serious injury he inflicted on his victim, fully supports the

district court’s application of the upward adjustment.

           Moreover, consideration of the results of the use of the

instrument in the application of these standards was not error.

Contrary to Perry’s assertion, the food tray clearly was capable of

inflicting serious bodily injury because it, in fact, did inflict

serious bodily injury upon the correctional officer.

           Accordingly, we find appropriate the district court’s

application   of   a   four-level    adjustment   pursuant   to   USSG

§ 2A2.2(b)(2)(B), and we affirm Perry’s conviction and sentence.


                               - 3 -
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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