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United States v. Powell

argued submitted seattle washington: July 14, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHN ROBERT POWELL, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-92-01126-RJB. Robert J. Bryan, District Judge, Presiding.

Before: William C. Canby, Jr., Charles Wiggins, and Thomas G. Nelson, Circuit Judges. Opinion by Judge Nelson.

Author: Nelson

NELSON, Circuit Judge:

I

OVERVIEW

John Robert Powell (Powell) appeals the sentence imposed as a result of his guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He contends that the district court erred in applying the official victim enhancement which added three points to his base offense level. Because we conclude that the district court correctly applied the official victim enhancement, we affirm.

II

FACTS AND PROCEDURAL HISTORY

On July 24, 1991, Officer DePretto (DePretto), a Washington State Patrol officer, and his partner were investigating a lead on a stolen vehicle. When they pulled into a driveway behind a green station wagon, DePretto identified himself as a police officer to the driver, Powell, and his passenger. Because Powell was extremely nervous and evasive, and because DePretto felt Powell may have wanted to talk to him about the stolen vehicle, DePretto asked Powell to step out of the car. It was beginning to rain so DePretto suggested that Powell bring his coat. Powell "scooped up" his coat. As DePretto approached Powell, he saw that Powell had a handgun in his right hand. Officer DePretto then screamed, "Gun!" and attacked Powell in an effort to separate Powell from the weapon.

Powell was indicted on March 11, 1992, for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2) (Count I), and for using or carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count II). Powell pled guilty to being a felon in possession of a firearm and Count II was dismissed.

At sentencing, Powell's explanation of the incident was that he had forgotten the gun was in the coat when he got out of the car, and that he had not intended to shoot DePretto. Officer DePretto testified that just before he disarmed Powell, Powell was attempting to bring the gun to bear on DePretto. The district court found that Officer DePretto was the more credible witness and accepted his version of the events. The district court Judge concluded that Powell had "assaulted" Officer DePretto because he had created a substantial risk of serious bodily injury. Accordingly, he increased Powell's base offense level pursuant to U.S.S.G. § 3A1.2(b), which provides for a three-level enhancement when a law enforcement officer is assaulted during the course of another offense. Powell was sentenced to thirty-seven months imprisonment. He appeals, contending that Application Note 1 of the Guideline precludes this adjustment.

III

Discussion

We review de novo the district court's legal interpretation of the Sentencing Guidelines and accept its factual findings unless they are clearly erroneous. United States v. Sanchez, 914 F.2d 1355, 1361 (9th Cir. 1990), cert. denied, 113 L. Ed. 2d 723, 111 S. Ct. 1626 (1991). We "give due regard to the opportunity of the district court to Judge the credibility of the witnesses . . . [and] due deference ...


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