985 F.2d 575

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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.
Donald Francis DUBRAY, Defendant-Appellant.

Argued and Submitted Oct. 11, 1991.
Submission Deferred Dec. 30, 1991.
Resubmitted March 5, 1992.
Memorandum of Temporary Remand April 10, 1992.
Resubmitted May 4, 1992.
Decided Feb. 5, 1993.

Appeal from the United States District Court for the District of Montana; No. CR-90-43-GF-PGH, Paul G. Hatfield, District Judge, Presiding.

D.Mont. [OPINION AFTER REMAND, 959 F.2d 242.]

AFFIRMED.

Before WALLACE, Chief Judge, and HUG and RYMER, Circuit Judges:

Having reviewed the statement of findings made by the district court upon remand, we affirm DuBray's sentence. The district court found that DuBray threatened Shelly Old Chief and placed her in fear of serious bodily injury unless she submitted. The court also found that DuBray physically restrained her before, and apart from, the force used in connection with the sexual act itself. Accordingly, U.S.S.G. § 2A3.1(b)(1) was not misapplied and the adjustment under § 3A1.3 was not inappropriate.

SENTENCE AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3