NOT RECOMMENDED F OR FULL -TEXT PUB L I CATI ON File Na me: 13a0841n.06 No. 12-6546 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. THOMAS GOOD EN, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED ST ATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TENNESSEE

Be fore : COOK, GRI FF I

N, and KE THL EDGE, Circuit Judges. KETHL EDGE, Circuit J udg e. Thomas Gooden pointed a loaded 9mm pistol a t h is g irlf rien d, Sheilah Ebron, and threatened to shoot her if she di d not comply with his demands. He later pl ed guilty to be ing a felon in possession of a firea rm in violation of 18 U.S.C. § 922(g ). In calc ulating Gooden’ s Guidelines rang e, the district court applied a cross-r efe renc e for ag g ravated assault under § 2A2.2 of the Guidelines. That section of the Guidelines define s ag g ravated assault as “assa ult that involved [] a dang erous wea pon with intent to cause bodily injury (i.e., not mere ly to frighten) with that wea pon[.] ” We revie w application of the cross ref ere nce de novo. See United States v. Brika , 487 F.3d 450, 454 ( 6th Cir. 2007). It was the g overnme nt’s burden to prove by a preponde ranc e of the evidenc e that Gooden had the intent require d by § 2A2.2. See United States v. Stewart , 6 28 F.3d 246, 256 (6th Cir. 2010).No. 12-6546

United States v. Goode n Gooden now argues that the g overnme nt failed to prove such intent here , and instead showed mere ly that he tried to frighte n Ebron whe n he pointed the pistol at her. We infer a defe ndant’s intent from “the totality of circ umstances.” United States v. Al-Zubaidy , 283 F.3d 804, 809 (6th C i r. 2 0 0 2) (citation omitted). Her e, the following fac ts are undisputed: Gooden was enra g ed at Ebron at the time of the subject incident. He threw a fan ag ainst the wall and punched Ebron in the mouth befor e finding the pistol under her pillow. He pointed the pistol at her and told he r not to move or else he would shoot her. He punched a hole in the door of her 10-year -old son’s room, found the son in the bathroom, hit the son in the chest, pointed the gun at h i m , an d threa

tened to pistol-whip him. When Ebron stepped into the hallway to investigate, Gooden pointed the pistol at her and told her he would shoot her if she did not sit down. This evidenc e was sufficie nt for the district court to find that Gooden intended to shoot Ebron if she did not comply with his demands (she did comply ). That Gooden might have lacke d any intent to shoot Ebron when he arrived at her house is beside the poi nt. Section 2A2.2 requires onl y that Gooden i n t en d ed t o harm Ebron when he pointed the pistol at her, not that he had that intent sometime befor e then. Nor does it matter that Gooden did not actua lly pull the trig g er. The whole point of an enhanc ement for assault with a dang erous wea pon (unlike, say , an enhanc ement for attempted or actua l murder) is that th e d ef endant does not have to pull the trig g er for the enhanc ement to apply

. See U.S.S.G. § 2A2.2(b)( 2)(C); United States v. Farrow , 198 F.3d 179, 194 (6th Cir. 1999). The district cour

t’s judgme nt is affirmed.

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