United States of America v. Frankie Dushane Kindness

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANKIE DUSHANE KINDNESS,
Defendant - Appellant.
No. 13-30048
D.C. No. 1:12-cr-00071-RFC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Frankie Dushane Kindness appeals from the district court’s judgment and
challenges the 27-month sentence imposed following her guilty-plea conviction for
depredation of government property, in violation of 18 U.S.C. § 1361. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
DEC 30 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Kindness contends that the district court erred by imposing a six-level
official-victim sentencing enhancement under U.S.S.G. § 3A1.2(c)(1). She alleges
that she did not act wilfully and the officers’ apprehension of harm was not
objectively reasonable. We review the district court’s interpretation of the
Sentencing Guidelines de novo and its factual findings for clear error. See United
States v. Rivera-Alonzo, 584 F.3d 829, 836 (9th Cir. 2009). The record supports
the district court’s determination that Kindness assaulted the officers “in a manner
creating a substantial risk of serious bodily injury.” See U.S.S.G. § 3A1.2(c);
United States v. Acosta-Sierra, 690 F.3d 1111, 1119-20 (9th Cir. 2012) (assault
requires showing that defendant cause “a reasonable apprehension of immediate
bodily harm”).
Kindness also contends that under section 3A1.2(c)(1), the enhancement
should not apply because the assault was not committed in the course of, or in the
immediate flight from, an offense distinct from the assault itself. To the contrary,
the enhancement is appropriate because these were “circumstances tantamount to
aggravated assault,” “committed in the course of, or in immediate flight
following,” Kindness’s commission of depredation of government property.
U.S.S.G. § 3A1.2 cmt. n.4(A).
AFFIRMED.
13-30048 2

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