USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 96-2247

UNITED STATES,

Appellee,

v.

DANIEL D. TAVARES,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

_____________
Cyr, Senior Circuit Judge,
____________________
and Lynch, Circuit Judge.
_____________

____________________

Daniel D. Tavares on brief pro se.

_________________
Donald K.

Stern, United States Attorney,

and Michael J.

Pelg

________________

________________

Assistant U.S. Attorney, on brief for appellee.

____________________

MAY 29, 1997

____________________

Per Curiam.
__________

Convicted of being a felon in possession of

firearm,

Tavares

see
___

18

challenges

district court

U.S.C.

the

10-year

not repeat

found

weapon

decision in

v. Tavares, 93
_______

F.3d 10

concerning

Tavares'

them here.

On

crime

and

prior

in our earlier opinion we

remand the

district court

that Tavares had committed an assault with a dangerous

and the

intent to

Tavares

that the

We affirm.

sentencing proceeding are detailed

will

sentence

Daniel

conviction, vacating sentence, and

remanding for resentencing).

facts

appellant

this court's

See United States

___ _____________

(1st Cir. 1996)(affirming

the

prison

imposed following

his last appeal.

As

922(g)(1),

intent

to do

bodily harm,

commit another felony.1

1

was

subject

to

The

sentencing

as well

as the

court concluded that

under

the

aggravated

assault guideline as a

result of these findings.

The court

then calculated his new sentence similarly to how it had done

so originally,

but based

on a different

See Tavares, 93 F.3d at 12-13, 15-17.

___ _______

contending

that the

court clearly

under

the

aggravated

upward

to

Tavares again appeals,

erred by

assault guideline

sentence him

to

120

factual predicate.

sentencing him

and

by

departing

months' imprisonment,

the

____________________

1The aggravated assault

1
assault involving (a) a

guideline applies to

a felonious

dangerous weapon with the intent

to

do bodily harm (i.e., not merely to frighten), or (b) serious

bodily injury, or
See U.S.S.G.
___
here was

(c) an

intent to

2A2.2, comment. (n. 1).

the malicious destruction of

of M.G.L. c. 266,

127.

commit another

felony.

The other felony found

property in violation

-2-

maximum that may

See 18 U.S.C.
___

be imposed

bodily

Tavares

we cannot say that

committed an

harm was

Garcia, 34 F.3d
______

offense of

conviction.

924(a)(2).

On this record,

that

on the

assault

clearly erroneous.

6, 10

(1st Cir.

the court's finding

with the

See
___

1994).

intent

to do

United States
_____________

v.

This finding

was

alone

sufficient to

support application

of the

aggravated

assault guideline.2 Similarly, the district court did not err

2

by adding the five

2A2.2(b)(2)(A).

weapon as

the

The

court

evidence indicates

Tavares fired

that

the

assailants'

their prior altercation with

this finding was

the

found that

part of the overall assault on Blake and Hunt.

prompted by

of

level discharge adjustment under U.S.S.G.

discharge

1B1.3(a)(1)(authorizing

characteristics based

was

addition

was

Thus, the addition

proper.

of

on "all acts ...

As

these individuals,

not clearly erroneous.

adjustment

conduct

his

See
___

U.S.S.G.

specific

offense

committed during the

commission of the offense of conviction").3

3

____________________

2We need
2
an

not decide whether, as

intent to

satisfies

commit

a felony

in

the government contends,

violation of

state

law

2A2.2, comment., n. 1.

3Tavares also asks this court to rule that Hunt suffered a

3
minor

injury as

a matter of

adjustment imposed under

law and to

vacate the 3-level

2A2.2(b)(3)(D).

We have previously

ruled that the severity of Hunt's injury cannot be decided as

a

matter of law.

See
___

93 F.3d at 16.

determination that Hunt suffered

injury"

and

"serious

bodily

erroneous.

-3-

The district court's

something between a "bodily

injury"

was

not

clearly

Finally, we

again conclude that the

district court did

not abuse its discretion in making the upward departure here.

Tavares' criminal

record, which included

evidence that

he

had committed the three violent offenses that had resulted in

the "guilty filed" dispositions,

The

wantonness of the offense of

the departure.

1248-52 (1st Cir.

defendant's

automatic

conviction

See United States v. Hardy,

___ ______________
_____

egregious.

also justified

99 F.3d

1242,

1996)(upholding upward departure based

repeatedly

weapon

was serious and

in

discharging

residential

and

area);

discarding

on

semi-

United States v.
______________

Croom,
_____

50 F.3d 433, 435 (7th Cir. 1995)("Meeting most of the

criteria for designation as an armed career criminal ... does

not

permit the

those who

departure

judge to impose

meet all

in

the

of the

criteria, but

direction
_________

Accordingly, the judgment of

the penalties

of

designed for

it does

those

permit a

penalties.").

the district court is affirmed.

________

Tavares' motion for bail pending appeal is moot.

____

-4-