* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-51312

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ROSDOLM T PIERRE-LOUIS

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:06-CR-52-ALL

Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judge.

PER CURIAM:*

Rosdolm T. Pierre-Louis (Pierre) appeals his jury trial conviction and 72-

month sentence for one count of assault with a dangerous weapon within the

maritime and territorial jurisdiction of the United States, in violation of

18 U.S.C. §§ 7(3) and 113(a)(3). 

Pierre argues thatthe district court erred in failing to charge the jury with

the lesser-included offense of simple battery. With respect to the sentence

imposed, Pierre contends that the district further erred by enhancing his base

United States Court of Appeals

Fifth Circuit

F I L E D

October 22, 2007

Charles R. Fulbruge III

Clerk
No. 06-51312

2

offense level by four levels for using a dangerous weapon, and by two levels for

obstructing justice. Pierre additionally argues that the district court failed to

adequately explain its reasons for imposing a one-month upward adjustment to

the 57 to 71 months sentencing range calculated under the Sentencing

Guidelines. 

The charge againstPierre stemmed from a domestic dispute turned violent

that occurred in the residence of Pierre’s ex-wife that was located on a military

base in Fort Hood, Texas. The ex-wife, Lora Madison, and three of her

daughters, testified that Pierre used a metal object such as a hammer or

screwdriver to strike both Madison and the eldest daughter, Patricia Robinson,

during the fracas that ensued. 

Pierre was the father of two of Madison’s daughters, including Patricia,

who along with a younger brother and her two sisters attempted to break up the

fight between their parents. Pierre admitted at trial that he did in fact act on

reflex and turn and strike Patricia after he felt a stabbing sensation in the back

of his head. However, he denied knowing it was Patricia until after he struck

her, and also denied using a weapon of any kind on Patricia or Madison during

the altercation. 

Although a weapon was not found during a subsequent search of Pierre’s

residence, there was testimony that Pierre made untrue statements, including

his denial to an FBI Special Agent that he was even in Foot Hood on the day of

the altercation. The jury acquitted Pierre of a charge of assaulting his ex-wife

with intent to commit murder, but convicted him of assaulting his daughter,

Patricia, with a dangerous weapon. 

Pierre’s argument that he was entitled to have the jury charged with the

lesser-included offense of simple battery is without merit. This court has held

that “a district court may give a lesser-included offense instruction, if, but only

if, (1) the elements of the offense are a subset of the elements of the charged

offense, and (2) the evidence at trial permits a jury to rationally find the
No. 06-51312

3

defendant guilty of the lesser offense and acquit him of the greater offense.”

UnitedStates v. Estrada-Fernandez, 150 F.3d 491, 494 (5th Cir. 1998). Although

this court also held in Estrada that the offense of simple assault set forth in

18 U.S.C. § 113(a)(5) is a lesser-included offense of assault with a dangerous

weapon, which is set forth in § 113(a)(3), the record does not show any evidence

that a simple assault on Patricia Robinson actually occurred. Pierre therefore

has failed to satisfy the second prong of Estrada. 

As for Pierre’s second argument, U.S.S.G. § 1B1.1, which defines a

“dangerous weapon” for sentencing purposes, only requires that a defendant

have used an object that closely resembles an instrument capable of inflicting

death or serious bodily injury. In light of the record as a whole, Pierre has not

shown that the district court erred by enhancing his base offense level by four

levels pursuant to U.S.S.G. § 2A2.2(b)(2)(B) for using a dangerous weapon. See

United States v. Olano, 507 U.S. 725, 734 (1993). 

Pierre’s third argument on appeal is thatthe district court erred by failing

to adequately detail its reasons for applying § 3C1.1 of the Sentencing

Guidelines to enhance his base offense level by two levels on the grounds that

he obstructed justice by committing perjury. The record, however, shows that

the district court did in fact set forth reasons for this two level enhancement,

including its observations of Pierre’s trial testimony and a statement that it

adopted Pierre’s presentence report, which in turn set forth detailed reasons for

the application of this enhancement. This court has held that a separate and

clear finding on each element of alleged perjury, while preferable, is not

required. United States v. Como, 53 F.3d 87, 89 (5th Cir. 1995). Nor does

U.S.S.G. § 3C1.1 require a district court to establish each specific and individual

element of perjury. In light of the record taken as a whole, Pierre’s third

argument is without merit. 

In his final argument, Pierre contends the district court gave no

explanation for its one-month upward departure from the 57 to 71 month
No. 06-51312

4

advisory sentencing range calculated under the Guidelines. Since Pierre failed

to raise this objection in the district court, the alleged error is reviewed for plain

error. Olano, 507 U.S. at 734. Pierre must therefore show that (1) there was an

error, (2)the error was clear or obvious, and (3)the error affected his substantial

rights and resulted in a manifest miscarriage of justice. Id.

This court reviews a departure from the Guidelines for an abuse of

discretion. United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). In its

statement of reasons, the district court stated that it departed upward from the

advisory guidelines range pursuant to U.S.S.G. § 4A1.3(a)(2)(C) based on the

defendant’s failure to comply with an administrative order (violation of

protective order) on several occasions. Thus, the district court did in fact clearly

state its reasons for the one-month upward departure, reasons that are,

moreover, detailed atlength in thePSR, which the district court adopted without

change. Pierre’s fourth argument is also without merit. 

The judgment of the district court is AFFIRMED.