     Case: 18-30628      Document: 00514952422         Page: 1    Date Filed: 05/10/2019




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

                                                                                FILED
                                      No. 18-30628                          May 10, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff - Appellee

v.

TERRANCE TERZE COCHRAN,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:17-CR-251-1


Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:*
       Terrance Cochran pled guilty to illegal possession of a firearm as a felon,
in violation of 18 U.S.C. § 922(g)(1).            He objected at sentencing to the
application of a six-level “official victim” enhancement under the United States
Sentencing Guidelines. We AFFIRM.
       Cochran, after being pursued on foot by police officers for the commission
of an offense, resisted one officer’s efforts to handcuff him. While both men


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-30628       Document: 00514952422   Page: 2     Date Filed: 05/10/2019



                                  No. 18-30628
were struggling on the ground, Cochran several times moved his hands toward
his waistband. That movement raised a reasonable concern on the part of the
officer that Cochran was reaching for a firearm.           Eventually, the officer
punched Cochran to prevent him from reaching his waistband. The officer
suffered a broken finger as a result, which later required surgery.           Once
Cochran was subdued, the officers found a firearm in his waistband.
      The relevant Guideline applies when, “in a manner creating a
substantial risk of serious bodily injury, the defendant . . . knowing or having
reasonable cause to believe that a person was a law enforcement officer,
assaulted such officer during the course of the offense or immediate flight
therefrom.”   U.S.S.G. § 3A1.2(c)(1) (2016).     The Sentencing Commission
commented that the enhancement applies “in circumstances tantamount to
aggravated assault.” § 3A1.2 cmt. n.4(A).
      An assault occurs under that Guideline when a person attempts to use a
firearm even if he or she “never reached the point of actually brandishing the
gun or aiming it at the officer.” United States v. Houston, 22 F.3d 1094, 1994
WL 198930, at *3 (5th Cir. 1994) (unpublished); see 5TH CIR. R. 47.5.3 (stating
that unpublished cases decided prior to 1996 are precedent). Cochran’s actions
satisfy that standard.
      On appeal, Cochran for the first time urges the court to use the Model
Penal Code’s definition of an “aggravated assault,” which includes “attempts
to cause . . . bodily injury to another with a deadly weapon.” MODEL PENAL
CODE § 211.1(2)(b). Cochran has failed to cite any relevant caselaw supporting
his argument that the Model Penal Code definition should apply. Regardless,
his actions satisfy that standard as well.
      There was no error in applying the Guideline for an assault on an official
victim. AFFIRMED.


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