IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40290 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTOPHER DARNELL STEPHNEY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. G-98-CR-19-1 --------------------

October 20, 1999

Before JONES, WIENER, and STEWART, Circuit Judges.

PER CURIAM:*

Christopher Darnell Stephney appeals his sentence following

his conviction for being a felon in possession of a firearm under

(g)(1). Stephney argues that he should not have

been sentenced under the guideline applicable to aggravated

assault. Guidelines § 2K2.1 prescribes the penalties for

violations of

(g)(1). That guideline directs

that, if the defendant used or possessed the firearm in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-40290 -2-

connection with the commission or attempted commission of another

offense, the guideline applicable to that other offense is to be

used. U.S.S.G. § 2K2.1(c)(1)(A). The probation officer

recommended and the district court adopted the use of § 2A2.2,

which is captioned, "Aggravated Assault." The application note

to § 2A2.2 defines aggravated assault as "a felonious assault

that involved (A) a dangerous weapon with intent to do bodily

harm (i.e., not merely to frighten)...." U.S.S.G. § 2A2.2,

comment. (n.1). This court has found that the aggravated assault

of § 2A2.2 is "akin to the federal offense of assault with a

dangerous weapon with intent to do bodily harm." United States

v. Perez,

(5th Cir. 1990). The actor must be

judged not by his undisclosed purpose to frighten, but from his

visible conduct and "what one in the position of the victim might

reasonably conclude."

The facts in the presentence report (PSR) adopted by the

district court are that Stephney put five shots through the front

door of the residence of an individual that he had been in a

physical altercation earlier in the day and had threatened to

shoot because that individual was homosexual. See United States

v. Lowder,

(5th Cir. 1998); United States v.

Puig-Infante,

(5th Cir. 1994). Stephney offered

no evidence at the sentencing hearing to rebut the findings in

the PSR. A victim would be reasonable in concluding that

someone, who had threatened to shoot him earlier in the day and

who then put five shots into his front door, intended to do him No. 99-40290 -3-

bodily harm. The determination that Stephney committed an

aggravated assault is not clearly erroneous.

AFFIRMED.