### The Honorab le William R. Wilson, Jr., United States District 1 

### Court Judge for the Eastern District of Arkansas. ___________ No. 95-2480

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Haston Glen Burns, * * [UNPUBLISHED] Appellant. *

___________ Submitted: March 4, 1996 Filed: March 8, 1996

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

___________ PER CURIAM.

Haston Glen Burns pleaded guilty to a one-count indictment, whic h alleged that he did " forcibly assault, resist, oppose, impede, intimidate
or interfe re with Tina Padgett" while she was engaged in her officia l duties as a United States Postmaster, in violati on of 18 U.S.C. §§ 111 and 1114. In this appeal, Burns challenges the sentence imposed by th e district court following his guilty plea. We affirm Burns's sentence. 1

Burns's presentence report (PSR) det ailed 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 th e 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 as k her some personal questions, and during the third call, Burns made a sexually explicit request.

When Padg ett 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 p ost office and walked toward her car, at which point she saw Burns sitting in his car behind the post office. Padgett entered her c ar, 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
maneuve r her car out of the parking space, Burns--wearing only shoes , soc ks, and an unbuttoned shirt--exited his car, approached her car, an d tried to open her car door. Unsuccessful, Burns stood next to the driver' s doo r of Padgett's car and began masturbating, walking alongside the ca r after Padgett freed her car from the parking space and was attempting to leave th e lot. As Padgett turned her car around, Burns pounded on th e driver's window with his hands. When Padgett drove towards the exit of th e parki ng lot, Burns again began masturbating and continued alongsid e Padgett's car until she drove away from the post office.

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

. § 2A2.2, the Guidelin e 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 "Obstructin g or Impeding Officers," which carries a base offense level of 6.

At sente ncing, Padgett testified that when Burns tried to open he r door and pounded on her window, she was afraid Burns was going to ge t inside her car and tr y to rape her. Padgett added, "I don't know what he had in mind. He had in mind to hurt me or he wo uldn't be trying to get in on me, and he didn't have anything on, so -- youknow." 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 assaul t Padg ett, and that his actions therefore constituted aggravated assaul t under sect ion 2A2.2. The district court sentenced Burns to 27 month s imprisonment and one year supervised release. On appeal, Burns contends that t here was insufficient evidence to support the district court' s conclusion that he co mmitted an aggravated assault, and that the district court thus erred in applying section 2A2.2.
Absent clear error, we accept the di strict court's factual findings, and give due deferenc e 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 clea r error).

Under U.S.S.G. § 1B1.2(a) the district court must "`determine th e offense guideline section . . . most applicable to the offense o f conviction,'" based solely on the "`conduct charged in the count of th e indictment . . . of w hich 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 , commen t. (backg'd.), and two Guidelines cover such violations: sectio n 2A2.2 and section 2A2.4. Section 2A2.4, however, contains a cross

reference 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 considerin g 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 assaul t is defined as a "felo nious assault" involving an intent to commit another felony. U.S.S.G. § 2A2.2, comment. (n.1).

### -4- We conc lude the district court did not clearly err in finding tha t Burns committed aggra vated assault. Although Burns denied that he struck Padg ett'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 1 468, 1472 (8th Cir. 1993) (district court's credibility finding s virtually unreviewable on appeal). The district court also was no t required to accept Burns's assertion that he did not intend to rape o r assault Padgett. See Street , 66 F.3d at 980. Because the district court did not clearly err in finding that Burns committed a felonious assaul t with in tent to commit another felony, we conclude the court correctl y 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 t o 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 tim e on appeal--that the c ommentary to section 2A2.2 impermissibly exceeds the scope of that Guideline, and that the commentary for sections 2A2.2 an d 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.

### -5- A true copy.

Attest:

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