United States v. Hungate, 133 F.3d 923 (8th Cir. 1997)

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US Court of Appeals for the Eighth Circuit - 133 F.3d 923 (8th Cir. 1997)

Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.

Submitted: Dec. 9, 1997Filed: Dec. 24, 1997

Before McMILLIAN, MAGILL and MURPHY, Circuit Judges.


Defendant Shawn Allen Hungate appeals from a final judgment entered in the United States District Court1 for the Northern District of Iowa sentencing him to 94 months imprisonment, three years supervised release, and special assessments totaling $150, upon a guilty plea to one count of unlawful possession of firearm, in violation of 18 U.S.C. §§ 922(g) (8) and 924(a) (2), and two counts of mailing threatening communications, in violation of 18 U.S.C. § 876. Defendant has a history of physically abusing his ex-wife and child, including assaults on his ex-wife during her pregnancy. In February of 1995, a state court magistrate judge ordered defendant to refrain from any contact with his ex-wife and child, including contact by mail or telephone. Defendant was also then prohibited from possessing or receiving a firearm. Thereafter, defendant, on one occasion, unlawfully purchased and possessed a firearm which he then used to shoot himself in the shoulder prior to entering his ex-wife's place of work and, on two separate occasions, wrote one letter addressed to his 14-month-old daughter threatening to harm or kill her upon being released from jail, and wrote another letter to his ex-wife's sister, threatening to harm or kill his ex-wife and his daughter, among others.

For reversal, defendant argues that the district court erred in: (1) applying the specific offense characteristic in U.S.S.G. § 2A6.1(b) because his § 876 offenses involved conduct evidencing an intent to carry out his threats; (2) failing to group his offenses together for purposes of the multi-count rules in U.S.S.G. § 3D1.1; and (3) departing upward by 21 months pursuant to U.S.S.G. § 5K2.0 on the ground that the guidelines fail to adequately take into consideration the danger he poses to his ex-wife and child.

Jurisdiction in the district court was proper based upon 18 U.S.C. § 3231. Jurisdiction in this court is proper based upon 28 U.S.C. § 1291.

Upon careful review of the briefs on appeal and the record in this case, including the sentencing transcript, we hold that the relevant factual findings of the district court are not clearly erroneous, that no errors of law have occurred, and that further discussion is unnecessary. Accordingly, the judgment of the district court is affirmed. See 8th Cir. R. 47B.

A true copy.




The Honorable Mark W. Bennett, District Judge, United States District Court for the Northern District of Iowa