United States v. Torres
Opinion of the Court
MEMORANDUM
Marcus Anthony Torres appeals the district court’s denial of his suppression motion and its application of a four-level enhancement for possession of a firearm in connection with another felony offense. We affirm.
Our review of the record convinces us that Mr. Torres’s act of showing the police the guns’ locations did not stem from any illegal governmental activity.
Because Mr. Torres used the firearm in connection with a felony assault, the district court correctly applied the four-level enhancement under section 2K2.1. See U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) & cmt. n. 4 (2005); see also United States v. Rutledge, 28 F.3d 998, 1003-04 (9th Cir. 1994); State v. Eastmond, 129 Wash.2d 497, 919 P.2d 577, 578 (1996) (state may prove second degree assault by showing (1) an attempt to cause bodily injury by unlawful force accompanied by the apparent ability to cause bodily injury; or (2) an attempt to cause fear and apprehension of bodily injury by unlawful force, regardless of intent or ability to inflict injury); State v. Miller, 71 Wash.2d 143, 426 P.2d 986, 988 (1967) (fact-finder may infer intent to create fear from the defendant’s act of pointing a gun at the victim). Mr. Torres cannot claim self-defense because a reasonably prudent person would not have escalated the conflict by shooting toward the men who were throwing rocks at his house. See State v. Walden, 131 Wash.2d 469, 932 P.2d 1237, 1239 (1997); State v. Brooks, 172 Wash. 221, 19 P.2d 924, 925 (1933).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. We note that the government had probable cause to arrest Torres based on eye-witness testimony that he shot randomly from his doorway into a crowd, and that he had been informed of his Miranda rights before officers questioned him about the gun. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); United States v. Lancellotti, 761 F.2d 1363, 1367 (9th Cir. 1985); United States v. Sears, 663 F.2d 896, 903 (9th Cir. 1981).
Reference
- Full Case Name
- United States v. Marcus Anthony TORRES
- Status
- Published