                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0615n.06

                                          No. 16-2380

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
UNITED STATES OF AMERICA,                               )                      Nov 08, 2017
                                                        )                  DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                              )
                                                        )
                                                                ON APPEAL FROM THE
v.                                                      )
                                                                UNITED STATES DISTRICT
                                                        )
                                                                COURT FOR THE WESTERN
KENNETH PARNELL WILLIAMS,                               )
                                                                DISTRICT OF MICHIGAN
                                                        )
       Defendant-Appellant.                             )
                                                        )
                                                        )


       Before: SILER, KETHLEDGE, and THAPAR, Circuit Judges.

       KETHLEDGE, Circuit Judge. Kenneth Williams aimed a stolen pistol at a woman in the

hallway of his apartment building, which terrified her. Once Williams realized that she was not a

threat, he lowered the gun, told her that he was “doing a perimeter check,” and left her alone. He

eventually pled guilty to possessing a stolen firearm in violation of 18 U.S.C. § 922(j). The

district court sentenced him to a term of 96 months’ imprisonment, which was within his

Guidelines range. He now appeals this sentence, claiming that the court based his Guidelines

range on the wrong offense level and criminal-history category. We affirm.

       In determining the Guidelines range, the district court increased the offense level by four

because Williams had used the stolen gun to commit a felony—assault with a dangerous

weapon—against the woman in the hallway. See U.S.S.G. § 2K2.1(b)(6)(B); Mich. Comp. Laws

§ 750.82. Williams argues that he lacked the necessary intent to commit that crime. The district
No. 16-2380
United States v. Williams

court found otherwise, and we review that finding for clear error. See United States v. Taylor,

648 F.3d 417, 431-32 (6th Cir. 2011).

       Assault with a dangerous weapon under Michigan law requires (among other things)

intent to injure or to place the victim in reasonable fear of an immediate battery. See People v.

Jackson, 790 N.W.2d 340, 343 n.2 (Mich. 2010). Here, Williams chambered a round in a pistol,

and the woman, who had just entered his apartment building, heard a metallic cocking sound.

He then pointed the gun at her, apparently thinking that she was somebody else. From those

actions, the district court reasonably inferred that Williams intended to make whoever had just

entered the building afraid of being shot. See People v. Lawton, 492 N.W.2d 810, 815 (Mich. Ct.

App. 1992). That was enough to satisfy the intent element and thus to increase the offense level

under U.S.S.G. § 2K2.1(b)(6)(B).

       In arguing otherwise, Williams focuses on what happened after he took aim at the

woman: he realized that she was harmless, and lowered the gun. But the district court found that

he had the necessary intent earlier, when he pointed the pistol at her, presumably to freeze her in

place for purposes of his “perimeter check.” That was the moment that mattered. His actions

thereafter might show that he no longer intended to cause fear; they do not prove that the court’s

finding of intent was clearly erroneous.

       Williams also argues that the district court should not have assessed him three criminal-

history points for a 1994 escape conviction. At sentencing, he claimed that the conviction should

not count because he completed the sentence for it more than 15 years before committing his

current offense. See U.S.S.G. § 4A1.2(e)(1). Here he argues the opposite: the conviction should

not count because he never served the sentence for it. See id. § 4A1.2 cmt. n.2. Per his plea

agreement, he waived challenges to his Guidelines range unless he “objected at sentencing on



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No. 16-2380
United States v. Williams

that basis[.]” Since the “basis” that he asserts now differs from the one that he asserted below,

he has waived it. See United States v. Flowers, 428 F. App’x 526, 529 (6th Cir. 2011).

       The district court’s judgment is affirmed.




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