Unpublished Disposition, 935 F.2d 277 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 277 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.John William RUNDLE, a/k/a William John Bandarrae a/k/aThomas Eugene Amerman, Defendant-Appellant.

No. 90-30351.

United States Court of Appeals, Ninth Circuit.

Submitted June 3, 1991.* Decided June 5, 1991.

Before EUGENE A. WRIGHT, FARRIS and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

BACKGROUND

This sentencing appeal requires us to review the definition of "aggravatd assault" used to determine Rundle's base offense level. He pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. §§ 922(g) (1) and 924(a) (2).

His offense arose out of a domestic dispute during which he threatened to kill his wife with a rifle. He also called her employer to come and get her before Rundle killed her. The boss came and took her away. Rundle, still holding the rifle, continued to threaten her as she left.

In the presentence report, the probation officer found that Rundle used the rifle to perpetrate an aggravated assault on his wife. Accordingly, he recommended a base offense level of 15 under United States Sentencing Guidelines (U.S.S.G.) Sec. 2A2.2(a). Rundle was sentenced to concurrent 30-month terms of imprisonment followed by three years of supervised release.

DISCUSSION

We review de novo the district court's application of the sentencing guidelines and its findings of fact for clear error. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990). Rundle argues that the district court incorrectly applied the aggravated assault section of the guidelines. In his view, the evidence was insufficient to show that he intended to harm his wife, a necessary element of aggravated assault as defined by the guidelines.

The applicable guideline for felon-in-possession charges, Sec. 2K2.1, provides a base offense level of 12. Section 2K2.1(c) (2), however, requires a cross-reference:

If the defendant used or possessed the firearm in connection with commission or attempted commission of another offense, apply Sec. 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above.

Under Sec. 2X1.1, when an attempt is expressly covered by another offense guideline section, the section for that other offense is applied. U.S.S.G. Sec. 2X1.1(c) (1).

Based on this cross-reference, the probation officer applied a base offense level of 15 from Sec. 2A2.2, the section for aggravated assault. Its commentary defines aggravated assault as a "means of felonious assault that involved ... a dangerous weapon with intent to do bodily harm (i.e. not merely to frighten) (emphasis in original)...." U.S.S.G. Sec. 2A2.2, comment. (n. 1). The presentence report said that Rundle intended to harm his wife. It relied on Rundle's prior history of violence, his loud verbal threats, his pursuit of his wife, rifle in hand, when her boss arrived and her statement that Rundle once shot at her with a handgun.

Rundle filed objections to the report, arguing that he did not have the requisite intent for aggravated assault. The probation officer prepared an addendum to the report explaining in detail the basis for his recommendation.

The court addressed each of Rundle's objections to the reports and expressly adopted the probation officer's findings. The court stated that in determining Rundle's base offense level, it gave "due consideration to the egregious nature of the Mr. Rundle's conduct in threatening to kill his wife...."

The court's findings of fact are not clearly erroneous. The evidence is more than sufficient for a finding that Rundle intended to harm his wife.1  We hold that the district court correctly applied the Sentencing Guidelines.2 

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

The allocation of the burden of proof is not controlling, so we we do not reach the parties' arguments on that issue

 2

Because of our disposition, we also need not address Rundle's argument that the incorrect application of the guidelines violated his due process rights