United States v. Humberto Diaz-Valdez

8 F.3d 31 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Humberto DIAZ-VALDEZ, Defendant-Appellant. No. 92-30403. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 2, 1993. Decided Oct. 4, 1993. 1 Before: BROWNING, SCHROEDER, and HALL, Circuit Judges 2 MEMORANDUM * 3 Diaz-Valdez appeals his sentence, arguing the district court improperly applied a three level enhancement under U.S.S.G. § 3A1.2(b) for assaulting a law enforcement officer "in a manner creating a substantial risk of serious bodily injury." We affirm. 4 The essence of appellant's argument on appeal is that the three level enhancement under U.S.S.G. § 3A1.2(b) cannot be sustained because the district court failed to find that appellant had the intent required for "aggravated assault" as defined in application note one of the commentary to § 2A2.2. ("intent to do bodily harm (i.e. not merely to frighten)"). 5 Appellant did…