The Honorable William R. Wilson, Jr., United States District 1

Court Judge for the Eastern District of Arkansas.

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No. 95-2480

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Eastern District of Arkansas.

Haston Glen Burns, *

 * [UNPUBLISHED]

Appellant. *

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 Submitted: March 4, 1996

 Filed: March 8, 1996

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Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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PER CURIAM.

Haston Glen Burns pleaded guilty to a one-count indictment, which

alleged that he did "forcibly assault, resist, oppose, impede, intimidate

or interfere with Tina Padgett" while she was engaged in her official

duties as a United States Postmaster, in violation of 18 U.S.C. §§ 111 and

1114. In this appeal, Burns challenges the sentence imposed by the

district court following his guilty plea. We affirm Burns's sentence. 1

Burns's presentence report (PSR) detailed the following. On July 5,

1994, while working at the United States Post Office in Heth, Arkansas,

Tina Padgett received three telephone calls from Burns, who had been at the

post office earlier and had left in a
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white car. During the first two calls, Burns asked Padgett if he could ask

her some personal questions, and during the third call, Burns made a

sexually explicit request.

When Padgett later went outside to lower the flag, a white car sped

toward the post office. Padgett retreated inside and, after hearing the

car leave, left the post office and walked toward her car, at which point

she saw Burns sitting in his car behind the post office. Padgett entered

her car, locked the doors, and began to leave, but was unable to do so,

because Burns had moved his car behind hers. While Padgett attempted to

maneuver her car out of the parking space, Burns--wearing only shoes,

socks, and an unbuttoned shirt--exited his car, approached her car, and

tried to open her car door. Unsuccessful, Burns stood next to the driver's

door of Padgett's car and began masturbating, walking alongside the car

after Padgett freed her car from the parking space and was attempting to

leave the lot. As Padgett turned her car around, Burns pounded on the

driver's window with his hands. When Padgett drove towards the exit of the

parking lot, Burns again began masturbating and continued alongside

Padgett's car until she drove away from the post office.

Burns's PSR calculated a base offense level of 15 under U.S.S.G.

§ 2A2.2, the Guideline for "Aggravated Assault." Burns objected, arguing

that he committed a simple assault, and that his offense level thus should

have been calculated under U.S.S.G. § 2A2.4, the Guideline for "Obstructing

or Impeding Officers," which carries a base offense level of 6. 

At sentencing, Padgett testified that when Burns tried to open her

door and pounded on her window, she was afraid Burns was going to get

inside her car and try to rape her. Padgett added, "I don't know what he

had in mind. He had in mind to hurt me or he wouldn't be trying to get in

on me, and he didn't have anything on, so -- you know." In his testimony,

Burns denied that he struck the car
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window, or that he intended to rape or "get [his] hands on [Padgett]."

The district court found that Burns intended to physically assault

Padgett, and that his actions therefore constituted aggravated assault

under section 2A2.2. The district court sentenced Burns to 27 months

imprisonment and one year supervised release. On appeal, Burns contends

that there was insufficient evidence to support the district court's

conclusion that he committed an aggravated assault, and that the district

court thus erred in applying section 2A2.2.

Absent clear error, we accept the district court's factual findings,

and give due deference to its application of the Guidelines to the facts.

United States v. Street, 66 F.3d 969, 979-80 (8th Cir. 1995); see United

States v. Garcia, 34 F.3d 6, 10 (1st Cir. 1994) (district court's finding

of intent in context of § 2A2.2 is factual finding reviewed for clear

error).

Under U.S.S.G. § 1B1.2(a) the district court must "`determine the

offense guideline section . . . most applicable to the offense of

conviction,'" based solely on the "`conduct charged in the count of the

indictment . . . of which the defendant was convicted.'" Street, 66 F.3d

at 978-79. A violation of 18 U.S.C. § 111 is a felony, see § 2A2.4,

comment. (backg'd.), and two Guidelines cover such violations: section

2A2.2 and section 2A2.4. Section 2A2.4, however, contains a crossreference provision which directs the district court to apply section 2A2.2

"[i]f the conduct constituted aggravated assault." U.S.S.G. § 2A2.4(c)(1).

When applying this cross-reference provision, "the district court is not

limited to considering the conduct of the offense of conviction, but also

may consider the defendant's `underlying conduct,' or . . . the `relevant'

conduct." Street, 66 F.3d at 979. As relevant here, an aggravated assault

is defined as a "felonious assault" involving an intent to commit another

felony. U.S.S.G. § 2A2.2, comment. (n.1).
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We conclude the district court did not clearly err in finding that

Burns committed aggravated assault. Although Burns denied that he struck

Padgett's car, the district court was not required to credit Burns's

testimony over Padgett's testimony. See United States v. Adipietro, 983

F.2d 1468, 1472 (8th Cir. 1993) (district court's credibility findings

virtually unreviewable on appeal). The district court also was not

required to accept Burns's assertion that he did not intend to rape or

assault Padgett. See Street, 66 F.3d at 980. Because the district court

did not clearly err in finding that Burns committed a felonious assault

with intent to commit another felony, we conclude the court correctly

applied section 2A2.2. Contrary to Burns's contention, U.S.S.G. § 2A2.3

(Minor Assault) is not implicated here, as that section applies only to

misdemeanor assaults or felonious assaults not covered by section 2A2.2.

See U.S.S.G. § 2A2.3, comment. (n.1).

We decline to address Burns's arguments--raised for the first time

on appeal--that the commentary to section 2A2.2 impermissibly exceeds the

scope of that Guideline, and that the commentary for sections 2A2.2 and

2A2.3 conflict. See Fritz v. United States, 995 F.2d 136, 137 (8th Cir.

1993), cert. denied, 114 S. Ct. 887 (1994).

Finally, we agree with the parties that the reference to 18 U.S.C.

§ 1114 in the judgment should be expunged. See Potter v. United States,

691 F.2d 1275, 1281 (8th Cir. 1982) (judgment must not refer to § 1114 if

defendant has not been convicted of homicide).

Accordingly, we affirm the judgment of the district court and direct

that the reference to 18 U.S.C. § 1114 in Burns's judgment be expunged.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.