* 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. 07-41144

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

AMADEO HERNANDEZ-CONDE, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

No. 7:06-CR-1008-ALL

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Amadeo Hernandez-Conde, Jr., appeals the 151-month sentence imposed

following his guilty plea conviction of possession with intent to distribute more

United States Court of Appeals

Fifth Circuit

F I L E D

December 8, 2008

Charles R. Fulbruge III

Clerk
No. 07-41144

2

than 100 kilograms of marihuana and assaulting, resisting, or impeding certain

officers or employees by means and use of a dangerous weapon. He argues that

the district court erred when it applied a two-level enhancement, pursuant to

U.S.S.G. § 2D1.1(b)(1), for using his vehicle as a deadly weapon in an attempt

to evade arrest and a six-level enhancement, pursuantto U.S.S.G. § 3A1.2(c), for

assaulting a police officer with his vehicle.

Hernandez-Conde asserts that his vehicle cannot be considered a dangerous weapon, because he did not use it with the intent to commit bodily injury.

Similarly, he contends that he did not commit aggravated assault, because he

did not act with a specific intent to injure and did not create a substantial risk

of serious bodily injury. 

According to testimony, Border Patrol Agent Adam Roy Ruiz pursued Hernandez-Conde’s vehicle into an orange grove, where Hernandez-Conde came to

a complete stop against a tree. When Hernandez-Conde opened the driver’s side

door, it appeared that he was either surrendering or preparing to escape on foot,

so Ruiz parked his vehicle behind Hernandez-Conde’s, unbuckled his safety belt,

and opened the door. As Ruiz was about to exit the vehicle, Hernandez-Conde

quickly closed his door, backed up, and intentionally struck Ruiz’s vehicle.

The impact was hard enough that Ruiz felt the vehicle move backward.

In addition, although Ruiz’s vehicle received only minimal damage, HernandezConde’s suffered a smashed-in trunk and tail light. Hernandez then continued

to lead officials on a chase through two communities, during which HernandezConde drove recklessly, even attempting to “T-bone” a police cruiser and trying

to swerve into Ruiz’s vehicle for a second time. The chase ended only after Hernandez-Conde lost control of his vehicle and became stuck in a ditch. Ruiz believed that Hernandez-Conde deliberately used his vehicle to intimidate officers.

After reviewing the district court’s findings of fact for clear error and its

application of those facts to the sentencing guidelines de novo, we conclude that

the court did not clearly err in applying either enhancement. United States v.
No. 07-41144

3

Charon, 442 F.3d 881, 887 (5th Cir.), cert. denied, 549 U.S. 915 (2006). The intent to commit bodily injury can be inferred, and a vehicle can be a dangerous

weapon when used to strike another vehicle. See United States v. Morris, 131

F.3d 1136, 1137-39 (5th Cir. 1997); United States v. Perez, 897 F.2d 751, 753 (5th

Cir. 1990). We have upheld the application of an enhancement for assaulting an

official even where the defendant narrowly missed striking a patrol car. United

States v. Gillyard, 261 F.3d 506, 510 (5th Cir. 2001). Also, although Ruiz was

notinjured, Hernandez-Conde’s action in unnecessarily striking the vehicle created a substantial risk of bodily harm. See id.

Moreover,the presentence report(“PSR”) generally bears sufficient indicia

of reliability to be considered as evidence during a sentencing hearing. United

States v. Roush, 466 F.3d 380, 387 (5th Cir. 2006). The defendant bears the burden of showing that the PSR’s findings cannot be relied on because they are unreliable, inaccurate, or materially untrue. United States v. Londono, 285 F.3d

348, 354 (5th Cir. 2002). In the PSR, the probation officer found that Hernandez-Conde used his vehicle as a dangerous weapon when he “stopped and assaulted the agent by intentionally striking the agent’s vehicle with his vehicle.”

Hernandez presents no convincing evidence that the probation officer’s finding

was unreliable or materially untrue.

The judgment of sentence is AFFIRMED.