United States of America,
Plaintiff-Appellee,
v. No. 98-4057
David J. Farrow,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 98-00101--Sam H. Bell, District Judge.
Argued: August 6, 1999
Decided and Filed: December 8, 1999
Before: NELSON and MOORE Circuit Judges; ROSEN, District
Judge.(*)
_________________
COUNSEL
ARGUED: Edward G. Bryan, FEDERAL PUBLIC DEFENDER'S OFFICE,
Cleveland, Ohio, for Appellant. Phillip J. Tripi, OFFICE OF THE
U.S. ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: Edward G.
Bryan, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for
Appellant. Phillip J. Tripi, OFFICE OF THE U.S. ATTORNEY,
Cleveland, Ohio, for Appellee.
ROSEN, D.J., delivered the opinion of the Court, in which
NELSON, J., concurred except as to Part IV.B and MOORE, J.,
concurred except as to Part IV.C. NELSON (pp. 36-40), and MOORE
(pp. 41-46), JJ., delivered separate opinions concurring in part
and dissenting in part.
_________________
OPINION
_________________
ROSEN, District Judge.
I. INTRODUCTION
Defendant/Appellant David J. Farrow appeals from his
conviction and thirty-six (36) month sentence for assault on a
federal officer in violation of 18 U.S.C. § 111(a)(1). Farrow
raises four arguments on appeal: (1) that the evidence at trial
was insufficient to sustain a conviction; (2) that the trial
court engaged in impermissible double counting by imposing a four-
level enhancement under United States Sentencing Guideline
("U.S.S.G") § 2A2.2(b)(2) for otherwise using a dangerous weapon;
(3) that the trial court erred by imposing a three-level
enhancement under U.S.S.G. § 3A1.2(a) for the official status of
the victim; and (4) that the District Court abused its discretion
by failing to grant a downward departure based on Farrow's alien
status. For the reasons stated below, we affirm the District
Court's determinations on three of these four issues, but
conclude that the application of U.S.S.G. §2A2.2(b)(2) does, in
this case, constitute impermissible double counting.
II. FACTUAL BACKGROUND
Defendant/Appellant David J. Farrow entered the United
States from Great Britain on March 27, 1994 for an authorized
visit of up to 90 days pursuant to the Visa Waiver Pilot
Program.(2) During this visit, Farrow intended to marry his
fiancé, Gail Walker, an American citizen from Ohio who Farrow had
met on a 1993 trip to the United States to visit his aunt. Walker
and Farrow were wed on May 28, 1994 in Farmington, Ohio, but the
relationship quickly deteriorated and the couple separated four
months later. During their separation, the couple had a child,
Tiffany Walker, who was born on February 8, 1995 and lives with
her mother.
Shortly before Farrow's 90-day visitation period was set to
expire, he and Walker obtained paperwork from the Immigration and
Naturalization Service ("INS") that would have permitted him to
remain in the country as the spouse of an American citizen.
Following the couple's separation, however, Walker elected not to
file this paperwork. Instead, she notified the INS in March of
1997 that Farrow had remained in the United States beyond his
period of authorization.
Several months passed before the INS pursued this lead.
Eventually, on February 5, 1998, INS Agent Timothy Ward embarked
upon an effort to locate Farrow. Agent Ward first spoke with
Darren LaForce, the manager of an apartment complex in Burton,
Ohio, where Farrow had stayed from time to time. When Agent Ward
inquired about Farrow's whereabouts, LaForce asked in turn about
the nature of Agent Ward's inquiry. Although Agent Ward advised
LaForce that he was pursuing an INS investigation, and although
he "quick[ly]" flashed a badge, LaForce declined to provide any
information, citing the variety of inquiries he receives about
apartment residents and his uncertainties about Agent Ward's
identity and the purpose of his visit. (J.A. at 174-76.)
Agent Ward next proceeded to West Farmington, Ohio, where he
spoke with Farrow's friend, Don Malone. Agent Ward gave his name,
stated that he was with a "law enforcement agency," and advised
Malone that he needed to "serve some paperwork on" Farrow. (J.A.
at 139.) Like LaForce, Malone failed to provide any information
on Farrow's whereabouts. As Agent Ward left, he noticed a vehicle
parked nearby and copied down its license plate number. He later
learned that this car was registered to Farrow.
Finally, Agent Ward telephoned Farrow's estranged wife, Gail
Walker. Walker informed Agent Ward that Farrow was scheduled to
visit her apartment in Warren, Ohio, that very night at 10:00
p.m. Agent Ward also learned that Walker had arranged for a
process server to serve divorce papers on Farrow during his
scheduled visit.
In the meantime, Farrow learned that afternoon about Agent
Ward's efforts to locate him. In a written statement given to the
INS on February 7, 1998, Farrow stated that he had learned on
February 5 that an immigration agent named Tim Ward was looking
for him, and that Don Malone also had advised him that day that a
law enforcement officer was looking for him. (J.A. at 238.) In
addition, Darren LaForce testified at trial that Farrow had
visited him at around 2:30 p.m. that afternoon, and that Farrow
already was aware that the INS was looking for him regarding
"some paperwork he needed to sign." (J.A. at 176-77.)
Later in the day, Farrow visited a friend, Stanley Allison,
and informed Allison that he was going to meet his wife at her
apartment later that evening. Allison testified at trial that he
advised Farrow to "watch his self and that it might be some kind
of a set up," because "when people are not getting along, or like
getting a divorce or something, you know, people do strange
things." (J.A. at 144.)(3)
That evening, Agent Ward and INS Special Agent Mark
Baskfield arrived at Walker's apartment at approximately 9:00
p.m., dressed in plain clothes. Process server Thomas Cool and a
friend, Gordon Pflager, also had just arrived at the apartment,
and all four men learned from Walker's mother that Walker was not
home, that Farrow had already stopped by the apartment at
approximately 7:00 p.m., and that he planned to return at around
10:00 p.m. Armed with this information, the INS agents invited
the two other men to wait for Farrow in the agents' unmarked
car,(4) which was parked in the apartment parking lot with a view
of the entire complex. The INS agents asked Cool and Pflager to
wait for the agents to complete their interview with Farrow
before serving him with the divorce papers.
At approximately 9:50 p.m., Farrow arrived at the apartment
complex, driving a car that matched the description obtained by
the INS agents. It was dark at that hour, but the parking lot was
illuminated. Farrow drove past the government vehicle, continued
through the parking lot, and backed into a space at the end of
the lot, parking next to a van on the passenger side of his
vehicle. Without activating the police lights, Agent Ward
followed Farrow to the end of the lot and stopped in front of the
van, at a location where Farrow's view of the INS vehicle was
obscured by the van. All four men then exited the INS vehicle and
approached Farrow's car from around the van. Agents Ward and
Baskfield did not identify themselves as INS officers, show their
badges, or display any weapons.
As Agent Ward walked in front of Farrow's car toward the
driver's side, Farrow shifted his car into gear, pulled forward,
and struck Ward on the left knee.(5) Agent Ward deflected the
impact by jumping onto the hood of the car, and he and Agent
Baskfield began to yell "police," "stop," and "federal agents."
While Agent Ward remained on the hood of the car, Farrow
continued to pull his vehicle out of its parking space, turned
right, and sideswiped the right front bumper of the INS vehicle.
As Farrow traveled a few car lengths past the INS vehicle, Agent
Ward drew his gun, put it to the windshield, and yelled, "Stop.
Police." Farrow stopped the car and Agent Baskfield, who had
pursued on foot, removed Farrow from the car and placed him under
arrest. As Agent Baskfield removed Farrow from the car, Farrow
began to apologize. Agent Ward suffered minor injuries to his
left knee from the incident.
Two days later, Agents Ward and Baskfield interviewed Farrow
and obtained a written statement from him. In this statement,
Farrow cited the prior threat from his wife and her neighbor as
the reason why he "panicked" when he saw men approaching his car
on the night of February 5, 1998. (J.A. at 238-39.) In an oral
statement to Agent Baskfield, Farrow claimed that he was not
concerned that an INS agent was looking for him, and that he was
unsure whether he could stay in the United States, in light of
his marriage and his daughter born in the country. (J.A. at 158.)
III. PROCEDURAL BACKGROUND
A. The Charge and Trial
On March 11, 1998, Farrow was charged in a one-count
indictment with knowingly and forcibly assaulting a federal
officer, in violation of 18 U.S.C. § 111(a)(1) and punishable
under 18 U.S.C. § 111(b).(6) Specifically, the indictment alleged
that Farrow used a motor vehicle to assault Agent Ward while the
INS agent was engaged in the performance of his official duties.
Trial commenced on May 19, 1998 before U.S. District Judge
Sam H. Bell. The jury returned a verdict of guilty on May 22,
1999. By Order issued July 16, 1998, the District Court denied
Farrow's motion for judgment of acquittal or new trial.
B. The Sentencing
Following Farrow's conviction, the United States Probation
Department prepared a Presentence Investigation Report stating
that Farrow was subject to the enhanced penalty of 18 U.S.C. §
111(b), and assigning a base offense level of 15 under the
sentencing guideline for aggravated assault, U.S.S.G. § 2A2.2.(7)
The sentencing report then applied three enhancements to this
base offense level: (1) a four-level enhancement under U.S.S.G. §
2A2.2(b)(2)(B) for "otherwise us[ing]" a dangerous weapon; (2) a
two-level enhancement under U.S.S.G. § 2A2.2(b)(3)(A) for bodily
injury to the victim; and (3) a three-level enhancement under
U.S.S.G. § 3A1.2(b) for the official status of the victim. Thus,
the report recommended a final offense level of 24. Farrow filed
objections to all three enhancements, and also moved for downward
departure on several grounds.
At the August 27, 1998 sentencing hearing, Farrow testified
extensively about the events leading up to the February 5, 1998
incident. Following this testimony, the District Court sustained
Farrow's objection to the two-level enhancement for bodily
injury, finding that "any injury" to Agent Ward was "minimal."
(J.A. at 221-22.) The Court also granted a two-level downward
departure, determining that Farrow's offense constituted a single
act of aberrant behavior. However, the Court rejected Farrow's
objections to the "otherwise used" and "official victim"
enhancements. In the end, the District Court sentenced Farrow to
36 months of imprisonment, based on an offense level of 20 and a
Category I criminal history.
IV. ANALYSIS
A. Sufficiency of the Evidence
As his initial argument on appeal, Farrow asserts that the
Government presented insufficient evidence to sustain his
conviction under 18 U.S.C. § 111(a)(1), and that the trial court
therefore erred in denying his motion for judgment of acquittal.
In reviewing a challenge to the sufficiency of the evidence, we
must not "weigh the evidence presented, consider the credibility
of witnesses, or substitute our judgment for that of the jury."
United States v. Davis, 177 F.3d 552, 558 (6th Cir. 1999).
"Instead, we determine merely whether, after viewing the evidence
in the light most favorable to the prosecution, and after giving
the government the benefit of all inferences that could
reasonably be drawn from the testimony, a rational trier of fact
could find the elements of the crime beyond a reasonable doubt."
Id.
As noted above, the Government charged Farrow with knowingly
and forcibly assaulting a federal officer in violation of 18
U.S.C. § 111(a)(1). In order to obtain a conviction under this
statute, the Government need not show that the assailant was
aware of the victim's official status. United States v. Feola,
420 U.S. 671, 684, 95 S.Ct. 1255, 1264 (1975); United States v.
Boone, 738 F.2d 763, 765 (6th Cir.), cert. denied, 469 U.S. 1042
(1984). However, the Government must prove that the federal
officer was engaged in official duties at the time of the
assault. Boone, 738 F.2d at 765.
In addition to this "federal officer" element, § 111(a)(1)
requires proof that the defendant acted knowingly and that he
committed a forcible assault. See United States v. Plummer, 789
F.2d 435, 437-38 (6th Cir. 1986). At the close of trial, the
District Court defined these terms as follows:
With respect to the term forc[i]ble assault, you are
instructed that the term includes any willful attempt or
threat to inflict physical injury or reasonable fear of such
injury upon another with force or strength, together with
the present ability to do so.
With respect to the term knowingly, I instruct you that
an act is knowingly done if it is done voluntarily and
purposefully, and not because of mistake or accident or some
other innocent reason.
The purpose of adding the word knowingly is to insure
that no one will be convicted because of mistake or accident
or other innocent reason.
(J.A. at 199.)
Farrow does not challenge these instructions, nor the
determination that Agent Ward was engaged in his official duties
as a federal officer on the night of February 5, 1998. Farrow
argues, however, that the evidence was insufficient for a
rational juror to conclude beyond a reasonable doubt that he
intended to harm Agent Ward. Instead, he views the evidence as
showing that he simply panicked and acted out of fear when
strangers approached his vehicle in the parking lot of his wife's
apartment complex.(8)
Viewing the evidence in the light most favorable to the
prosecution, we cannot accept Farrow's challenge to the
sufficiency of this evidence. The Government introduced ample
evidence from which the jury could infer that Farrow purposefully
placed his car into gear and drove at Agent Ward. In particular,
Agent Ward testified at trial that when he walked in front of
Farrow's vehicle, Farrow "looked at me and made eye contact"
before placing his car into gear, driving toward the INS agent,
and striking Agent Ward's knee. (J.A. at 112.) Agent Ward further
testified that after he was struck on the knee and jumped on the
hood of Farrow's car, Farrow accelerated, collided with the INS
vehicle, and continued to drive through the parking lot, despite
the shouts of "stop" and "police" by Agents Ward and Baskfield.
(J.A. at 116-17.) According to Agent Ward, Farrow continued to
accelerate his vehicle until the INS agent was able to draw his
weapon and place it on the windshield directly in front of
Farrow. (J.A. at 118-19.)
In addition to this testimony, the Government introduced
Farrow's written statement executed two days after the incident,
in which he acknowledged seeing Agent Ward in front of the car
and then driving forward:
I pulled up, never see anybody around when I pulled in, and
all of [a] sudden there were people there, I panicked and
tried to get away, Mr. Ward was in front of me and ended up
on my hood, I caught the front of his car when I went past,
then I decided to stop, I saw Mr. Ward's gun . . . .
(J.A. at 239.) This statement, when combined with the testimony
of Agent Ward, provides a sufficient basis for a reasonable juror
to conclude that Farrow saw a person in front of his car and made
a conscious decision to drive forward, striking that individual.
This view of the evidence, if adopted by the jury, is sufficient
to support a conviction under 18 U.S.C. § 111(a)(1).
To be sure, Farrow introduced evidence in support of his
claim that he acted for an "innocent reason" -- namely, out of
fear for his safety when strangers approached his car at night.
In his statement to the INS, Farrow cited a prior dispute with
his estranged wife and her neighbor as the basis for his wariness
as he visited his wife's apartment complex on the night in
question, and he stated that "I panicked" when he saw men
approaching his vehicle in the dark. (J.A. at 238.) Moreover,
Farrow's friend, Stanley Allison, testified that on the afternoon
of February 5, "I told [Farrow] to be careful, watch his back"
when visiting his wife later that night, because "it might be
some kind of a set up." (J.A. at 144.) The Government in turn
points to evidence tending to rebut this claim of "innocent
reason," including Farrow's statement that he was informed on
February 5 that an INS agent named Tim Ward "was looking for me,"
(J.A. at 238), and the testimony of Darren LaForce that Farrow
was aware that the INS was looking for him when he visited
LaForce on the afternoon of February 5. (J.A. at 177.)
In weighing this evidence, the jury could have concluded
that Farrow acted out of fear for his safety, but it was by no
means compelled to so conclude. Rather, there was sufficient
evidence on either side of the question to permit a reasonable
juror to reject Farrow's innocent explanation for his actions on
the night of February 5, 1998. Accordingly, we decline to
substitute our judgment for that of the jury, and hold that
sufficient evidence was introduced at trial to sustain Farrow's
conviction.
B. Double Counting in Farrow's Sentencing
As his second assignment of error, Farrow contends that the
trial court impermissibly "double counted" in sentencing by
relying upon the same conduct -- Farrow's use of his car as a
dangerous weapon -- as the basis for both an elevated base
offense level of 15 for aggravated assault and a four-level
"otherwise used" enhancement under U.S.S.G. § 2A2.2(b)(2)(B). In
response, the Government argues that U.S.S.G. § 1B1.1 permits
double counting unless a guideline expressly instructs otherwise,
and that U.S.S.G. § 2A2.2 nowhere prohibits double counting. As
this issue involves only the District Court's legal conclusions
in applying the aggravated assault guideline and the "otherwise
used" enhancement, we review de novo the lower court's resolution
of this sentencing matter. See United States v. Perkins, 89 F.3d
303, 307 (6th Cir. 1996).
In analyzing Farrow's double counting argument, the starting
point of the inquiry is Appendix A to the Sentencing Guidelines,
which specifies the guideline section or sections applicable to
the statute of conviction. Pursuant to Appendix A, an individual
convicted under 18 U.S.C. § 111 may be sentenced under either
U.S.S.G. § 2A2.2 or § 2A2.4. Section 2A2.2 governs aggravated
assaults and sets a base offense level of 15, while § 2A2.4
pertains to obstructing or impeding officers and imposes a base
offense level of 6. In determining the appropriate guideline to
apply, Appendix A instructs that the sentencing court should "use
the guideline most appropriate for the nature of the offense
conduct charged in the count of which the defendant was
convicted."
In the present case, Farrow does not contest the District
Court's finding that Farrow used his car as a dangerous weapon in
the course of the assault, nor the lower court's conclusion that
Farrow's offense was properly classified as an aggravated assault
subject to a base offense level of 15 under U.S.S.G. § 2A2.2. We
likewise find no error in this determination. The application
notes to § 2A2.2 define an "aggravated assault" as "a felonious
assault that involved (A) a dangerous weapon with intent to do
bodily harm (i.e., not merely to frighten), or (B) serious bodily
injury, or (C) an intent to commit another felony." U.S.S.G. §
2A2.2, Application Note 1. Although subparts (B) and (C) of this
definition do not apply here, Farrow's conduct falls within
subsection (A) as involving a "dangerous weapon," his car. See
United States v. Beckner, 983 F.2d 1380, 1383 n.1 (6th Cir. 1993)
(recognizing that a car can be a dangerous weapon under the
Sentencing Guidelines). Thus, the District Court appropriately
chose to apply § 2A2.2 rather than § 2A2.4.(9)
However, Farrow takes issue with the next step in the
District Court's sentencing decision: namely, that Farrow's use
of his car as a dangerous weapon in his assault on Agent Ward
subjects him to a four-level enhancement under U.S.S.G. §
2A2.2(b)(2)(B) for "otherwise us[ing]" a dangerous weapon.(10)
Farrow contends that his use of an automobile as a dangerous
weapon may not provide the basis both for determining that he
committed an aggravated assault and for applying a four-level
"otherwise used" enhancement to his sentence for aggravated
assault. According to Farrow, this use of the same conduct for
two different sentencing purposes amounts to impermissible
"double counting."
As Farrow points out, the Second Circuit Court of Appeals
reached precisely this conclusion under factually similar
circumstances. In United States v. Hudson, 972 F.2d 504 (2d Cir.
1992), the defendant, Albert Hudson, drove his car at two U.S.
Marshals who were attempting to arrest him on two outstanding
warrants. Following a guilty plea, the sentencing judge adopted
the recommendations set forth in the Presentence Report, which
assigned a base offense level of 15 under U.S.S.G. § 2A2.2(a) for
aggravated assault and applied a four-level enhancement under §
2A2.2(b)(2) for "otherwise us[ing]" a dangerous weapon, Hudson's
car. Hudson argued that this sentence impermissibly "double
counted" the same conduct -- his use of a car -- first to make
his offense an aggravated assault, and then to increase his
offense level from 15 to 19.
The Second Circuit agreed, and vacated Hudson's sentence. In
so ruling, the Court observed that the "graduated adjustment
scheme" set forth at § 2A2.2(b)(2) appeared to contemplate the
assailant's possession or use of an "inherently dangerous"
weapon, such as a firearm:
As Hudson suggests, where the dangerous weapon is a
firearm there is a clear increase in wrongfulness of conduct
which corresponds to the Guidelines' graduated adjustment
scheme, such that: (1) if the gun is merely possessed, the
defendant receives only the base offense level; (2) if the
use of the gun is threatened, there is a three-level
increase; (3) if the gun is "otherwise used", a defendant
would receive a four-level increase; and (4) if the gun is
fired a defendant would receive a five-level increase. See
U.S.S.G. § 2A2.2(b). In the present case, by contrast, an
automobile is not an inherently dangerous weapon, and only
became dangerous once it was "otherwise used" in an assault
or its use was threatened. Therefore, unlike the situation
where the weapon is a gun or other inherently dangerous
weapon, aggravated assault with a car will always lead to a
three or four-level enhancement, because mere possession of
a car during an assault will not convert an ordinary assault
into an aggravated one.
* * * *
A defendant can not be guilty of assault with a non-
inherently dangerous weapon (such as a chair or an
automobile) unless the object is used (or its use is
threatened) in a dangerous way. In such instances, it is the
use or threatened use of the object which makes the assault
aggravated, thereby increasing the base level of the
offense, and this same act also requires an upward
adjustment of three or four levels under U.S.S.G. § 2A2.2.
972 F.2d at 506-07. Based on this concern that the use of an
ordinary object as a dangerous weapon invariably leads to a "two-
fold upward adjustment" -- i.e., application of the aggravated
assault guideline and imposition of the four-level "otherwise
used" enhancement -- the Court concluded that the "incremental
adjustment schedule" at § 2A2.2(b)(2) should be applied only in
cases "involving inherently dangerous weapons." 972 F.2d at 507.
Hudson noted that the Fourth Circuit Court of Appeals had
previously reached the opposite result in United States v.
Williams, 954 F.2d 204 (4th Cir. 1992). The Williams Court, like
the Second Circuit in Hudson, recognized that § 2A2.2(b)(2)
establishes a "graduated adjustment scheme" that increases the
offense level in proportion to the degree of involvement of the
dangerous weapon. 954 F.2d at 206-07. Williams, however,
concluded that the trial court's refusal to apply the "otherwise
used" enhancement in that case, where the defendant had assaulted
a fellow inmate with a metal chair, would "effectively
eviscerate" the incremental schedule at § 2A2.2(b)(2) by failing
to account for the defendant's actual use of a dangerous weapon,
rather than mere possession or threatened use. 954 F.2d at 207.
The Court further noted its prior ruling in United States v.
Curtis, 934 F.2d 553 (4th Cir. 1991), that double counting is
permitted unless expressly prohibited by the Sentencing
Guidelines, and observed that § 2A2.2 includes no such
prohibition. 954 F.2d at 207-08.(11)
This Circuit has not yet addressed the double counting
concern raised by § 2A2.2 in cases involving ordinary objects
used as dangerous weapons. Nevertheless, the Government suggests
that the result of our inquiry here is foreordained, and that we
are precluded from following Hudson, by virtue of a post-Hudson
amendment to the Sentencing Guidelines, taken together with
certain of our precedents. The Government begins this argument by
citing a 1993 amendment to U.S.S.G. § 1B1.1, Application Note 4,
which added language providing that "[a]bsent an instruction to
the contrary, the adjustments from different guideline sections
are applied cumulatively (added together)."
The Government then points to our decision in United States
v. Cobleigh, 75 F.3d 242, 251 (6th Cir. 1996), in which we held
that this 1993 amendment to U.S.S.G. § 1B1.1 effectively
overruled two of our earlier decisions prohibiting a particular
type of double counting.(12) According to the Government,
Cobleigh adopts a presumption in favor of double counting,
similar to the presumption relied upon by the Fourth Circuit in
Williams, supra. Given this supposed presumption, and given the
absence of any language in § 2A2.2 that prohibits double
counting, the Government concludes that we must reject Farrow's
argument.
We do not read our precedents or § 1B1.1, Application Note 4
as broadly requiring double counting under all circumstances
unless expressly prohibited by the Guidelines. As an initial
matter, the plain language of the Application Note speaks of
"adjustments from different guideline sections," and says nothing
about the cumulative use of the same conduct to both establish a
base offense level and apply an enhancement. Because this case
does not involve multiple enhancements, Cobleigh is not
controlling here.
Moreover, in cases decided after the Application Note was
amended, we have continued to consider whether a sentence
reflects impermissible double counting of the same conduct for
two different purposes. For example, in United States v. Perkins,
89 F.3d 303, 307-10 (6th Cir. 1996), we upheld the application of
four separate increases to the defendant's offense level under
U.S.S.G. § 2B3.1(b), finding that each of these enhancements
"penalize[d] distinct aspects" of the defendant's conduct.
Indeed, Perkins expressly quoted the revised Application Note 4
in support of its double counting analysis, yet still asked
whether each adjustment properly arose from distinct conduct or
consequences. Thus, we concluded our discussion in Perkins by
stating the general rule that "no double counting occurs where,
although the conduct underlying two enhancements is the same, a
single guideline provision requires the district court to
increase the defendant's sentence based on different aspects of
the defendant's conduct." 89 F.3d at 310; see also United States
v. Kelley Technical Coatings, Inc., 157 F.3d 432, 443-44 (6th
Cir. 1998) (rejecting a claim of double counting where different
conduct was used to determine the base offense level and to apply
an enhancement); United States v. Wall, 92 F.3d 1444, 1453 (6th
Cir. 1996) (same), cert. denied, 519 U.S. 1059 (1997).
Plainly, then, we have not viewed the revised § 1B1.1 as
foreclosing any further inquiry into double counting. Indeed,
despite the intervening amendment to § 1B1.1, we cited the Second
Circuit's Hudson decision with approval in a case coincidentally
by the same name, United States v. Hudson, 53 F.3d 744 (6th
Cir.), cert. denied, 516 U.S. 890 (1995). In our Hudson decision,
we addressed a double counting concern inherent in U.S.S.G. §
2B3.1, the guideline governing robbery. One of the defendants,
McPherson, argued that his sentence reflected improper double
counting by including an enhancement under § 2B3.1(b)(2)(C) for
possessing or brandishing a firearm, plus an enhancement under
§ 2B3.1(b)(5) for carjacking, which includes as an element the
possession of a firearm. 53 F.3d at 748.
We concluded that we were not squarely confronted with a
double counting issue, because McPherson had not merely possessed
a gun, but had "point[ed] a shotgun at a victim for some period
of time and threaten[ed] to 'blow him in two.'" 53 F.3d at 749.
This additional, "qualitatively different" act of brandishing a
weapon, beyond the mere possession sufficient to warrant
application of the carjacking enhancement, ensured that the two
enhancements to McPherson's sentence stemmed from two different
aspects of his conduct. 53 F.3d at 749. Thus, we rejected
McPherson's appeal to the Second Circuit's ruling in Hudson,
while suggesting that we might follow it under the appropriate
circumstances:
The [Second Circuit] held that application of the
["otherwise used"] enhancement would result in
"impermissible double counting." The court's reasoning
revolved around the fact that the guidelines have special
provisions to cover situations when the use of an ordinary
object as a dangerous weapon transforms a minor assault into
an aggravated one. Therefore, it would be "double counting"
if the same act that raised the base offense level were the
basis of an enhancement also.
This case would support [McPherson's] position if the
question was . . . possession plus possession. However,
because McPherson committed two distinct acts, possession
plus brandishing, allowing the enhancement to stand in this
case is not contrary to Hudson.
53 F.3d at 749 n.4 (emphasis added).
Given these precedents, we believe ourselves free to follow
Hudson if persuaded that the Second Circuit's approach is
correct. In considering this question, we acknowledge that other
Circuits which have addressed the § 2A2.2 double-counting issue
have declined to follow Hudson, for a variety of reasons. For
example, in United States v. Dunnaway, 88 F.3d 617, 619 (8th Cir.
1996), the Eighth Circuit found that ordinary objects raise no
special double counting concern when treated as dangerous weapons
under § 2A2.2 because, in the Court's view, it is possible to
commit an aggravated assault with such an object by evincing an
"[i]ntent to do bodily harm" through "conduct that falls short of
actual use of the object."(13) Thus, the Court reasoned that it
is appropriate to apply the four-level "otherwise used"
enhancement when the assailant proceeds to actually use the
object as a weapon.
In United States v. Johnstone, 107 F.3d 200, 212 (3d Cir.
1997), a case involving an assault with a flashlight, the Third
Circuit similarly found no double counting in light of the
distinction in § 2A2.2 between general "involvement" of a
dangerous weapon, which qualifies the offense as an "aggravated
assault," and the various, more specific types of "involvement" -
- brandishing, otherwise using, or firing -- that trigger
application of the § 2A2.2(b)(2) enhancements. The Court also
reasoned, as the Fourth Circuit did in Williams, supra, that it
should not deviate from any double counting mandated by the plain
language of the Guidelines, given the recognition in other
portions of the Guidelines that double counting may occur and the
existence of Guideline provisions that specifically forbid double
counting under certain circumstances. 107 F.3d at 212-13; see
also United States v. Sorensen, 58 F.3d 1154, 1161 (7th Cir.
1995) (also adopting the Fourth Circuit's reasoning in Williams,
in a case involving an assault with a concrete block).
Finally, in United States v. Reese, 2 F.3d 870, 895-96 (9th
Cir. 1993), cert. denied, 510 U.S. 1094 (1994), the Ninth Circuit
also declined to follow Hudson. Reese held that "the use of a
single aspect of conduct both to determine the applicable offense
guideline and to increase the base offense level mandated thereby
will constitute impermissible double counting only where, absent
such conduct, it is impossible to come within that guideline." 2
F.3d at 895. Because it is possible to commit an aggravated
assault without the involvement of a dangerous weapon, the Ninth
Circuit concluded that § 2A2.2 raises no double counting
concerns. 2 F.3d at 896. The Court went on to dispute Hudson's
characterization of the sentence in that case as the product of
"double counting":
The relevant way to describe what is going on here is
that the use of a weapon transformed Hudson's offense from a
minor assault to an aggravated-assault-in-which-a-dangerous-
weapon-was-otherwise-used. That we use a single sentencing
factor "twice" to trace the effects of this transformation
(first to distinguish minor from aggravated assaults, then
to distinguish more and less culpable aggravated assaults)
is merely an accidental by-product of the mechanics of
applying the Guidelines. It is not impermissible double
counting.
2 F.3d at 896 n.32.
Upon surveying this authority in light of the facts of the
case before us, we simply are not persuaded by the reasons given
by these courts in support of double counting. As discussed
above, we have not subscribed, as the Fourth Circuit has, to the
broad principle that silence in the Sentencing Guidelines
reflects implicit permission to double-count under all
circumstances. Neither is there any support in our precedents for
the Ninth Circuit's rule, which also appears to underlie the
Eighth Circuit's decision in Dunnaway, that a guideline raises no
double counting concerns so long as it is capable of being
applied in some hypothetical case without counting the same
conduct twice. Finally, we confess our inability to perceive how
cases like this one do not "really" involve double counting, but
instead reflect "merely an accidental by-product of the mechanics
of applying the Guidelines."(14)
Consequently, we adhere in this case to our well-established
rule that impermissible "double counting" occurs when precisely
the same aspect of a defendant's conduct factors into his
sentence in two separate ways. See Perkins, 89 F.3d at 310. By
observing this rule, we seek to advance one of the overarching
purposes of the Sentencing Guidelines as set forth in an
introductory Policy Statement: namely, to achieve
"proportionality in sentencing through a system that imposes
appropriately different sentences for criminal conduct of
differing severity." U.S.S.G. Ch. 1, Pt. A, at 2; see also
Perkins, 89 F.3d at 308, 310 (citing this policy statement in its
double counting analysis). If a single aspect of the defendant's
conduct both determines his offense level and triggers an
enhancement, this defendant's final offense level will be the
same as that of a defendant who engages in two forms of conduct
deemed punishable under the Sentencing Guidelines.(15) Such an
assignment of equal offense levels for conduct of differing
severities undermines the Guidelines' goal of proportionality in
sentencing.
Of course, our precedents show that not all instances of
double counting are impermissible. For example, as demonstrated
in Cobleigh, supra, we recognize that the Sentencing Guidelines
expressly mandate double counting under some circumstances
through the cumulative application of sentencing adjustments.
Moreover, we allow double counting where it appears that Congress
or the Sentencing Commission intended to attach multiple
penalties to the same conduct. Cf. United States v. Johnson, 22
F.3d 106, 108 (6th Cir. 1994) (finding that Congress intended to
impose multiple punishments for the same conduct under 18 U.S.C.
§ 2119, which outlaws carjacking, and 18 U.S.C. § 924(c), which
prohibits the use of a firearm in a crime of violence). These
"exceptions" to our rule against double counting, if they can be
characterized as such, derive from the principle that the
Sentencing Guidelines "should be interpreted as if they were a
statute," which in turn dictates that we "follow the[ir] clear,
unambiguous language if there is no manifestation of a contrary
intent." United States v. Hayter Oil Co., 51 F.3d 1265, 1272 (6th
Cir. 1995) (quoting United States v. Lewis, 900 F.2d 877, 881
(6th Cir. 1990)).
Applying the foregoing principles to this case, and
specifically to the interpretation of U.S.S.G. § 2A2.2 as applied
to Farrow's sentence, we simply are not persuaded that this
guideline was written in contemplation of the situation presented
here, where a "dangerous weapon" is not dangerous at all unless
it is "otherwise used." By defining an "aggravated assault" as
encompassing a felonious assault that "involved . . . a dangerous
weapon," § 2A2.2, Application Note 1, the Sentencing Commission
presumably meant to address situations where the "dangerous
weapon" in question is sufficiently dangerous, by its very
nature, that its mere "involvement" in an offense -- for example,
the bare possession of a firearm -- makes an otherwise minor
assault fraught with peril, and hence "aggravated." Where, as
here, the "weapon" in question is not inherently dangerous, there
is nothing about its mere possession that would increase the
peril associated with an assault. If, for example, Farrow had
been standing next to his car and had charged at Agent Ward but
done him little or no harm, we would not consider his offense an
"aggravated assault" simply because he possessed an object (his
car) that, under different circumstances, could have been used as
a dangerous weapon.
Similarly, as the Second Circuit recognized in Hudson, the
graduated enhancement scheme set forth at § 2A2.2(b)(2) seems to
contemplate a weapon that, although dangerous when merely
"involved" in the offense, creates an ever-increasing hazard as
the defendant makes greater use of it. Through this scheme, we
punish an assailant who injects a greater risk of harm by merely
"involving" a dangerous weapon in his offense, and then we
gradually increase this punishment as the assailant brings the
weapon into play and escalates its use by brandishing, otherwise
using (for example, pointing it at the victim's head), or
discharging the weapon. Again, this scheme simply does not fit
the situation where the weapon is an ordinary object. Cf. United
States v. Kushmaul, 147 F.3d 498, 501-02 (6th Cir. 1998) (noting
that the gradually increasing penalties imposed by the Guidelines
for increasing involvement or use of a firearm do not apply as
well to other weapons). In such cases, we have no occasion to
enhance the penalty to express our increased disapproval as the
assailant makes increasing "use" of the object (whatever that
might entail); we merely wish to punish his decision to use an
ordinary object as an instrument of his assault. Having achieved
this result by treating his assault as "aggravated," we ought not
resort to an additional penalty under § 2A2.2(b)(2), absent some
additional aspect of the assailant's conduct that separately
warrants it. Cf. Morris, supra, 131 F.3d at 1139 (finding an
"otherwise used" enhancement warranted by two separate uses of a
vehicle in the course of an assault).
We nevertheless would impose these additional penalties if
persuaded that this is what Congress or the Sentencing Commission
intended. The Government, however, has failed to suggest, nor
have we identified, any policy that might be served by citing the
use of a car in an assault as the basis for both setting a base
offense level of 15 and applying a four-level "otherwise used"
enhancement. Compare Johnson, supra, 22 F.3d at 108 ("Congress
wanted to make sure in [18 U.S.C.] § 924(c) that all federal
crimes of violence committed with a firearm are enhanced, even
though the other more specific crime of violence also requires
the presence of a firearm."). Absent evidence of any such
legislative intent, and given our continuing vigilance to avoid
double counting, we decline to presume that the Sentencing
Commission anticipated the present situation and, through its
silence, implicitly approved the use of the same conduct to both
establish an aggravated assault and invoke the "otherwise used"
enhancement.
Just as importantly, we do not find in the plain language of
§ 2A2.2 a clear mandate that the "otherwise used" enhancement
should be applied to Farrow's sentence. Farrow did not "otherwise
use" his car in his assault on Agent Ward, as distinct from the
conduct that brought his offense within the "aggravated assault"
guideline in the first instance. Rather, under the sentence
imposed by the District Court, a single aspect of Farrow's
conduct -- namely, his act of using his car as a dangerous weapon
by driving it at Agent Ward -- was counted both to treat his
offense as an "aggravated assault" with a base offense level of
15, and to apply a four-level enhancement under § 2A2.2(b)(2)(B)
for "otherwise us[ing]" his car in his assault.
Although, as discussed above, other courts have declined to
view this situation as involving double counting, we see no way
of avoiding the conclusion that it was Farrow's use of his car,
and no other aspect of his conduct, that triggered both the base
offense determination and the application of the enhancement. In
contrast to cases involving inherently dangerous weapons,
Farrow's conduct in this case cannot meaningfully be divided into
possession plus some separate "use" of a weapon. While mere
possession of an inherently dangerous weapon would, in another
case, qualify an offense as an aggravated assault, Farrow's mere
possession of his car simply would not have led to this result,
absent his use of the car in his assault.
Thus, Farrow's sentence is the product of "double counting"
as we have repeatedly defined it in our precedents -- that is,
the use of the same aspect of his conduct for two sentencing
purposes. Moreover, it is impermissible double counting, because
we find no policy basis for the sentence imposed by the trial
court in this case, and no evidence of any legislative intent
that the use of a car should count twice in a sentencing
determination. Accordingly, we conclude that Farrow's sentence
must be vacated and redetermined without application of a four-
level "otherwise used" enhancement.(16)
C.Enhancement of Farrow's Sentence Based on the Official
Status of the Victim
Farrow next contends that the District Court erred in
applying U.S.S.G. § 3A1.2 to enhance his sentence by three levels
on account of the official status of the victim, Agent Ward.(17)
Farrow contends that the evidence before the District Court was
insufficient to support the conclusion that he knew or "ha[d]
reasonable cause to believe," U.S.S.G. § 3A1.2(b), that one or
more of the individuals approaching his car on the night of
February 5, 1998 was a law enforcement officer. Because such
actual or constructive knowledge is required to sustain a three-
level enhancement under § 3A1.2, Farrow asks us to set aside this
enhancement.
We review for clear error the District Court's factual
finding that Farrow either knew or had cause to believe that
Agent Ward was a law enforcement officer. See United States v.
Hayes, 135 F.3d 435, 437 (6th Cir. 1998). This question is a
close one, because portions of the record support the conclusion
of the court below, while other portions seemingly lead to a
contrary result. As evidence in support of the District Court's
finding, we first note that both the post-arrest statement given
by Farrow to the INS and witness testimony at trial reflect
Farrow's awareness on the afternoon of February 5, 1998 that an
INS agent had attempted to locate him earlier that day. In
addition, Farrow testified at his sentencing hearing that he knew
the INS was looking for him when he visited his wife's apartment
on the night of February 5, and that he had been on the premises
in West Farmington, Ohio earlier that day when Agent Ward visited
and questioned his friend Don Malone about Farrow's whereabouts.
(J.A. at 211-14.) Finally, Agent Ward testified that Farrow
continued to accelerate his vehicle through the parking lot, with
the INS agent perched on the hood, even after Ward and Agent
Baskfield identified themselves by shouting out, "Police. Stop."
(J.A. at 117-18.)
On the other hand, Farrow introduced evidence at trial and
at his sentencing hearing which would tend to suggest his lack of
awareness of the official status of the individuals who
approached his car in the parking lot of his wife's apartment
complex. First, it is undisputed that Agents Ward and Baskfield
wore no clothing that would identify them as law enforcement
officers, that they did not activate the police lights in their
vehicle as they followed Farrow's car through the parking lot,
and that they did not flash their badges or brandish their
weapons as they approached Farrow in his car. Further, although
Farrow admitted that he was present when Agent Ward questioned
his friend Don Malone about his whereabouts, he denied having
checked to see what Agent Ward looked like; rather, at the time
the INS agent approached Farrow's car at the apartment complex,
he testified that he had "never seen [Agent Ward] before in my
life," (J.A. at 217), and that he did not know any of the people
who surrounded his car, (J.A. at 204). Finally, Farrow offered
testimony, both his own and Stanley Allison's, reflecting his
concerns as he visited his wife on the night of February 5,
including: (i) that his wife's request that he drop by "might be
some kind of a set up," (J.A. at 144); (ii) that he previously
had been threatened by his wife's neighbor as a result of an
incident where he had touched a neighborhood girl on the back of
her head, (J.A. at 201-02); and (iii) that when four unknown
individuals approached his car at his wife's apartment complex,
"I thought I was going to get beat up or robbed, or something,"
(J.A. at 203-04).
In determining that these facts warranted the application of
§ 3A1.2, the District Court reasoned as follows:
[T]here is motivation here for [Farrow] to regard
agents of the Immigration Service in a way different than
you might or I might under these circumstances.
I believe that the defendant probably did have some
apprehension in going to the location of this activity. I
think it's probably reasonable that he did have some fears
of the area and the hour of the day, and possibly some
perceived reason for his being there. Admitting that there
was something in his past life experience, if you will,
which would justify that feeling, generally there is nothing
in the evidence which suggests to me that anything justifies
his doing what he did by virtue of that apprehension.
But there is also every reason to believe that he
should have known that INS agents were the parties who
approached the car.
I'm not sure that the apprehension about the agents
predominates over the apprehension about others, but the
fact of the matter is, there is every reason for him to have
know[n], based on the history of the case, which involves
him, and according to the evidence that was produced during
trial and here today, there is every reason for him to
believe and know that the parties who approached the car
were the agents of the immigration service.
He knew that they were looking for him. He had been
told that, he was informed that they were looking for him.
He knew that the application which he was to make to stay in
the United States was, if you will, either defective or not
made at all. And the motivation, as I said, for him to stay
here was a very strong one.
The very fact that he may have been apprehensive about
others does not preclude his awareness. It was highly likely
that INS agents were there either to question him or to
apprehend him or to deal with him in some fashion. And I
believe that the evidence establishes that that is so.
Why do I say that? Well, first of all, the jury saw it
that way, but on an individual basis, the court joins that
view, drawing the appropriate inferences from the evidence
which was offered, which I suppose one could say was in the
form of circumstantial evidence, to say that he was not
fearful of the intrusion of the INS agents. To put it
another way, I think, is naive. And I believe that he was.
And I find as fact those matters which I have stated and
with that conclusion.
(J.A. at 223-25.)
As Farrow correctly points out, a portion of the District
Court's analysis cannot withstand scrutiny. Specifically, there
is no basis for concluding that "the jury saw it that way" where,
as explained earlier, a conviction under 18 U.S.C. § 111 does not
require a showing that the defendant was aware of the victim's
official status. See Boone, supra, 738 F.2d at 765. Accordingly,
the jury verdict provides no basis for determining, one way or
the other, whether Farrow knew or had reason to believe that
Agent Ward was a law enforcement officer.
Nevertheless, despite this flaw in the District Court's
reasoning, we find no basis for rejecting the lower court's
ultimate factual finding. Mindful of the "clearly erroneous"
standard governing our review, we may not reverse the District
Court's factual findings based solely on a belief that we would
have reached a different result. See Anderson v. City of Bessemer
City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985). As the
Anderson Court instructed:
If the district court's account of the evidence is plausible
in light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that had it
been sitting as the trier of fact, it would have weighed the
evidence differently. Where there are two permissible views
of the evidence, the factfinder's choice between them cannot
be clearly erroneous.
470 U.S. at 573-74, 105 S. Ct. at 1511. The Court further
explained that "[t]his is so even when the district court's
findings do not rest on credibility determinations, but are based
instead on physical or documentary evidence or inferences from
other facts." 470 U.S. at 574, 105 S. Ct. at 1511-12.
The rule stated in Anderson governs the situation before us.
The evidence presented to the District Court permitted two
contrary conclusions: one, that Farrow had reason to believe that
the individual who approached his car was the INS agent who had
been looking for him earlier that day, or, two, that Farrow
honestly feared an assault by unidentified and unknown
individuals in a parking lot after dark. The facts of this case
are not like those confronting us in Hayes, supra, 135 F.3d at
438-39, where we noted that one of the officers "was wearing a
police jersey with 'Police' written across the front in big white
letters and a police hat," and that the officers had activated
the police lights in their unmarked vehicles. Neither, however,
is this a case like the one cited by Farrow, United States v.
Gonzales, 65 F.3d 814, 818 (10th Cir. 1995), rev'd on other
grounds, 520 U.S. 1 (1997), where an undercover officer
affirmatively and successfully assured the defendants that he was
not a police officer.
The facts of this case are much more equivocal, and do not
admit of only a single conclusion. In determining that Farrow
knew or had reason to believe that Agent Ward was a law
enforcement officer, the District Court adopted one of the two
permissible views of the evidence. Under the clearly erroneous
standard of review, we cannot overturn this finding of fact.
Accordingly, we affirm the District Court's three-level
enhancement of Farrow's sentence for the official status of the
victim.(18)
D.Denial of a Downward Departure for Farrow's Alien Status
As his final argument on appeal, Farrow asserts that the
trial court erred in refusing to grant a downward departure in
Farrow's sentence on account of his alien status. The Government
responds that this issue is not reviewable on appeal, and that,
in any event, the District Court properly exercised its
discretion in declining to grant the departure sought by Farrow.
We agree with the Government's first argument, and thus do not
reach the second.
As the Government notes, we have held that "the refusal of a
district judge to make a downward departure is not ordinarily
appealable." United States v. Byrd, 53 F.3d 144, 145 (6th Cir.
1995). Such a decision may be appealed only where the lower
court's refusal to deviate from the sentencing guidelines was
based on an erroneous belief that it lacked the authority to do
so. See United States v. Landers, 39 F.3d 643, 649 (6th Cir.
1994). Moreover, we presume that district judges are aware of
their discretion under the sentencing guidelines. Thus, the
sentencing judge is under no duty to "state affirmatively that he
knows he possesses the power to make a downward departure, but
declines to do so," and we "should be reluctant to 'treat as
ambiguous' a ruling which does not" include such an affirmative
declaration. Byrd, 53 F.3d at 145 (quoting United States v.
Barrera-Barron, 996 F.2d 244, 245 (10th Cir. 1993)).
In this case, the record affirmatively reflects the District
Court's knowledge of its authority to grant the departure sought
by Farrow. After hearing the argument of Farrow's counsel that
alien status is a proper basis for a downward departure, the
Court responded that "I think there are times when it can"
provide a basis for departure, but that "I simply don't think
these circumstances warrant" such a departure. (J.A. at 229.)
This statement plainly and unambiguously evinces the District
Court's awareness of its discretionary power to depart, and
therefore precludes our review of the sentencing judge's decision
not to grant a downward departure in this case.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the conviction and
sentence of Defendant/Appellant David J. Farrow in all respects,
with the exception of the four-level enhancement applied to his
sentence as a result of impermissible double counting. In light
of this sentencing defect, we VACATE Farrow's sentence and REMAND
this case to the District Court for resentencing as to the double
counting issue only, in accordance with this opinion.
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
DAVID A. NELSON, Circuit Judge, concurring in part and
dissenting in part. I concur in Parts IV A, C, and D of the
majority opinion, but not in Part IV B. I see no impermissible
"double counting" in the calculation of defendant Farrow's three-
year sentence, and I would affirm the sentence in all respects.
Mr. Farrow's sentence reflects the use - concededly an
appropriate use - of the base offense level (15) called for by
U.S.S.G. § 2A2.2(a) and a 4-level enhancement under U.S.S.G. §
2A2.2(b)(2). The 4-level increase was mandated by the plain
language of the guideline: "If a firearm was discharged, increase
by 5 levels; (B) if a dangerous weapon (including a firearm) was
otherwise used, increase by 4 levels . . . ." The district judge
simply applied the guideline as written - and no fewer than nine
of our sister circuits would agree with his decision to do so.
See United States v. Valdez-Torres, 108 F.3d 385 (D.C. Cir.
1997); United States v. Garcia, 34 F.3d 6 (1st Cir. 1994); United
States v. Johnstone, 107 F.3d 200 (3d Cir. 1997); United States
v. Williams, 954 F.2d 204 (4th Cir. 1992); United States v.
Morris, 131 F.3d 1136 (5th Cir. 1997); United States v. Sorensen,
58 F.3d 1154 (7th Cir. 1995); United States v. Dunnaway, 88 F.3d
617 (8th Cir. 1996); United States v. Reese, 2 F.3d 870 (9th Cir.
1993); and United States v. Duran, 127 F.3d 911 (10th Cir. 1997).
Our own court, in an unpublished opinion, has likewise held
that the guideline means what it says and should be applied
accordingly. See United States v. Couch, No. 94-3292, 1995 WL
369318 (6th Cir. June 20, 1995). The defendant in that case was a
police officer who had struck a suspect in the head with a metal
flashlight. The officer was assigned a base offense level of 15
for "aggravated assault" and was given a 4-level increase under §
2A2.2(b)(2)(B) for use of a dangerous weapon. His claim that this
constituted "double counting" was rejected out of hand:
"The language of the aggravated assault provision clearly
provides for a calibrated adjustment of the offense level
according to the use made of the dangerous weapon and, as
such, does not double count." Couch, 1995 WL 369318, **9
(emphasis supplied).
Until today, the Court of Appeals for the Second Circuit was
the only circuit court to have gone on record as holding that in
a situation where the dangerous weapon used by the defendant was
something other than a firearm, the guideline should not be
applied as written. See United States v. Hudson, 972 F.2d 504 (2d
Cir. 1992). The Second Circuit got it wrong in Hudson, I believe,
and all of the other circuits that have addressed the issue -
including ours, until now - have got it right.
The crux of the Second Circuit's reasoning in Hudson is
found in the two paragraphs immediately preceding the court's
statement of its conclusion:
"A defendant can not be guilty of assault with a non-
inherently dangerous weapon (such as a chair or an
automobile) unless the object is used (or its use is
threatened) in a dangerous way. In such instances, it is the
use or threatened use of the object which makes the assault
aggravated, thereby increasing the base level offense, and,
this same act also requires an upward adjustment of three or
four levels under U.S.S.G. § 2A2.2.
The incremental adjustment schedule of § 2A2.2, see
2A2.2(b)(1)-(4), is, therefore, only appropriate for
situations involving inherently dangerous weapons, because
under the Guidelines a defendant could be sentenced at the
base offense level for carrying a firearm while committing
an assault. Where an ordinary object is implicated, as was
the case here, it is the use of the object as a weapon that
makes the offense an aggravated assault, and it is the use
of this weapon which also requires a four-level enhancement
pursuant to U.S.S.G. § 2A2.2(b). This two-fold upward
adjustment for the use of a weapon constitutes impermissible
double counting. See, e.g., United States v. Campbell, 967
F.2d 20, 23-26 (2d Cir. 1992)." Hudson, 972 F.2d at 507.
(Italics in original, bold type supplied.)
The Second Circuit evidently thought that the use of an
automobile as a weapon somehow "increas[ed] the base" offense
level so that the end result, after the imposition of a 4-level
enhancement for use of the weapon, would constitute a "two-fold
upward adjustment." But, as other courts have pointed out, it is
not correct to think of the sentencing court as "increasing" or
making an "upward adjustment" in the offense level when the court
invokes § 2A2.2(a) to fix the base offense level at 15. You have
to start somewhere, of course, and the base offense level - which
does not necessarily turn on the use of any weapon at all,
whether "inherently" dangerous or otherwise - simply marks the
starting point of the calculation. The guideline calls for only
one upward adjustment, not two.
It is true that a lower starting level - one prescribed by
U.S.S.G. § 2.A2.4 - would have been called for under Appendix A
of the guidelines if defendant Farrow's violation of 18 U.S.C. §
111 had not constituted an "Aggravated Assault" as that term is
defined in the guidelines. It is also true that the aspect of Mr.
Farrow's conduct which made his crime an aggravated assault in
the first place, under the guidelines definition, was the fact
that he committed his felonious assault with a dangerous weapon
and with intent to do bodily harm. But so what? Mr. Farrow could
have committed an aggravated assault without using any weapon at
all - and if he had done so, his base offense level would still
have been 15. The Sentencing Commission obviously wanted to
distinguish between aggravated assaults involving use of a
dangerous weapon and aggravated assaults not involving use of a
dangerous weapon.
The Sentencing Commission's right to make such a distinction
seems self evident. Surely the Second Circuit could have had no
objection to a guideline saying that the base offense level for
an aggravated assault in which any kind of dangerous weapon was
used would be 19, if there was an intent to do bodily harm, while
the base offense level for an aggravated assault not involving
the use of a dangerous weapon would be 15. The Sentencing
Commission happens to have used a different mechanism for
distinguishing among aggravated assaults and calibrating the
punishment therefor, but the mechanism chosen by the Commission
as a calibration device seems entirely appropriate to me.
The Court of Appeals for the District of Columbia Circuit
made the point very cogently in Valdez-Torres:
"Section 2A2.2 applies to different types of aggravated
assault, of which assault with a dangerous weapon is but
one. The enhancement for use of a dangerous weapon thus does
not duplicate an essential element of aggravated assault but
instead is properly used to distinguish among sentences
imposed pursuant to the section for different kinds of
assaults." 108 F.3d at 389 (Footnotes omitted).
What the Valdez-Torres court was suggesting, I believe, is
that the Second Circuit fell into error in Hudson by ignoring the
structure of the relevant guideline. U.S.S.G. § 2A2.2 applies to
any aggravated assault, defined as any felonious assault that
involved "(a) a dangerous weapon with intent to do bodily harm .
. ., or (b) [that involved] serious bodily injury, or (c) [that
involved] an intent to commit another felony." Application Note
1, U.S.S.G. § 2A2.2 (emphasis supplied). The perpetrator of any
type of aggravated assault starts out with an offense level of
15, as we have seen, whether a dangerous weapon was involved or
not. And within the aggravated assault universe, there is one
type of assault - the type identified in Application Note 1(c) -
for which, depending on the circumstances of the individual case,
the perpetrator may receive no offense level increase at all. The
Sentencing Commission has decided that there should be a 3-level
increase if the perpetrator brandished or threatened to use any
kind of dangerous weapon, a 4-level increase if he actually did
use a dangerous weapon of any kind (or if he inflicted serious
bodily injury), and a 5-level increase if the use of the weapon
consisted of discharging a firearm.
The Hudson court acknowledged that this sort of "incremental
adjustment schedule" is appropriate for situations involving
firearms. Because of the court's failure to focus on the fact
that some types of aggravated assault do not involve weapons of
any kind, however, Hudson rejected the incremental adjustment
scheme as not "appropriate" for situations involving the use as a
weapon of an "ordinary object" such as an automobile. I should
have thought, I must say, that the appropriateness of
establishing an incremental adjustment scheme applicable to the
use of "ordinary" objects as weapons is precisely the sort of
question that Congress expected the Sentencing Commission to
decide.
In the case at bar, the end result of the process decided on
by the Commission was a sentence - three years' imprisonment -
the length of which did not exceed the maximum that would have
been permissible under 18 U.S.C. § 111(a) without regard to the
enhanced penalty ("not more than ten years") authorized in §
111(b) for situations where a deadly or dangerous weapon was
used. The length of Mr. Farrow's sentence happens to be identical
to that of the sentence imposed in Valdez-Torres. And the
particulars of the crime committed by the defendant in Valdez-
Torres - assaulting an INS agent with an automobile - are
identical to the particulars of the crime committed by Mr.
Farrow. A three-year sentence is a punishment that fits this
crime reasonably well, in my opinion. Accordingly, and on the
strength of the reasoning employed by the D.C. Circuit in Valdez-
Torres, I would reject the defendant's double-counting argument.
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
KAREN NELSON MOORE, Circuit Judge, concurring in part and
dissenting in part. I concur with the majority's decision that
the evidence adduced at trial was sufficient to sustain Farrow's
conviction under 18 U.S.C. § 111(b). I also agree with the
majority that the district court's decision not to grant a
downward departure based on Farrow's alien status is not
reviewable in this case. Furthermore, I agree with Judge Rosen's
conclusion that the district court impermissibly engaged in
double counting by adding a four-level enhancement to Farrow's
sentence on the ground that he "otherwise used" a dangerous
weapon, see U.S.S.G. § 2A2.2(b)(2)(B), and I fully concur in his
analysis of that issue. I disagree, however, with the majority's
decision in Part IV.C. to uphold the district court's application
of the three-level enhancement under U.S.S.G. § 3A1.2, based on
the official status of the victim. Because I believe that
U.S.S.G. § 3A1.2(b) was not intended to apply to the
circumstances of this case, and because, alternatively, I believe
that the government did not meet its burden of showing that
Farrow knew or should have known that Ward was a law enforcement
officer, I respectfully DISSENT from Part IV.C. of the majority's
opinion.
I believe that, as a matter of law, it was improper for the
district court to apply § 3A1.2(b) to the appellant. By its
terms, Application Note 5 to § 3A1.2 contemplates an enhancement
under subdivision (b) only when the assault on a federal officer
occurs during the course of or during immediate flight from
another offense. Application Note 5 reads:
Subdivision (b) applies in circumstances tantamount to
aggravated assault against a law enforcement or corrections
officer, committed in the course of, or in immediate flight
following, another offense, such as bank robbery. While this
subdivision may apply in connection with a variety of
offenses that are not by nature targeted against official
victims, its applicability is limited to assaultive conduct
against law enforcement or corrections officers that is
sufficiently serious to create at least a "substantial risk
of serious bodily injury" and that is proximate in time to
the commission of the offense.
U.S.S.G. § 3A1.2 commentary, applic. note 5 (emphasis added).
Thus, the clear language of Application Note 5 indicates that
§ 3A1.2(b) should not apply when the underlying offense is
aggravated assault on a federal officer.
The language of § 3A1.2(b) also supports the view that that
provision should not apply where the underlying offense is
aggravated assault. Subdivision (b) clearly provides for an
enhancement when the defendant, "during the course of the offense
or immediate flight therefrom," engages in what amounts to
aggravated assault against a law enforcement or corrections
officer. It is nonsensical, or at least tautological, to say
that, while committing the offense of aggravated assault against
Ward, Farrow engaged in aggravated assault against Ward. Reading
the Sentencing Guidelines to dictate such a result strongly
resembles the kind of double counting disapproved by Part IV.B.
of the court's opinion, which I join. Furthermore, the Eleventh
Circuit agrees that § 3A1.2(b) does not apply when the underlying
offense is aggravated assault on a federal officer, relying on
the language of Application Note 5. See United States v.
Jennings, 991 F.2d 725, 734 (11th Cir. 1993). But see United
States v. Valdez-Torres, 108 F.3d 385, 390 (D.C. Cir. 1997)
(reading § 3A1.2(b) to apply to aggravated assault on an INS
agent).(1)
This reading of § 3A1.2(b) raises the problem that Farrow
would receive the same sentence for assaulting a federal officer
as he would for aggravated assault on any other citizen. This
difficulty results from the fact that § 2A2.2, the guideline that
establishes the base offense level for aggravated assault, does
not contain any means of specifying a higher offense level if the
assault occurred on an officer. It is nonetheless plausible that
the official-victim enhancement under § 3A1.2 was intended to
apply in cases of aggravated assault only when subsection (a) of
§ 3A1.2 is invoked -- that is, only when the assault on the
victim is "motivated by" the victim's official status. U.S.S.G.
§ 3A1.2(a).(2) Although such a policy might seem unwise or
unusual, it is, in my opinion, dictated by the plain language of
Application Note 5, which is binding on this court unless it is
unconstitutional, plainly erroneous, or inconsistent with the
Guidelines. See Stinson v. United States, 508 U.S. 36, 45-47
(1993). I believe that the majority's understanding of the "clear
overarching purpose" of § 3A1.2, slip op. at 33 n.18, should not
trump the dictates of that plain language.(3)
Admittedly, the appellant did not raise this argument,
either in his appellate brief or at sentencing, when he objected
to the official-victim enhancement. Normally, the appellant's
failure to make an argument in the district court or in his brief
would preclude this court from reversing on that ground. See,
e.g., Fed. R. App. P. 28(a); United States v. Brown, 151 F.3d
476, 487 (6th Cir.), cert. denied, --U.S.--, 119 S. Ct. 560
(1998). That rule is not jurisdictional, however, and we have
previously held that it "may be waived in exceptional cases or to
avoid a miscarriage of justice." Mayhew v. Allsup, 166 F.3d 821,
823 (6th Cir. 1999); see Dorris v. Absher, 179 F.3d 420, 425 (6th
Cir. 1999); United States v. Anderson, 584 F.2d 849, 853 (6th
Cir. 1978) (citing Fed. R. App. P. 2). In my view, lengthening
the duration of the appellant's incarceration based on a
sentencing guideline that is, by its terms, inapplicable to him
constitutes a fundamental miscarriage of justice. Furthermore, as
in Dorris, the issue in this case is the district court's
erroneous interpretation of a statute; it concerns a pure
question of law, and no material facts are in dispute.
See Dorris, 179 F.3d at 425-26. Thus, this court is in a position
to exercise its discretion to decide that legal issue. It is
true, as the majority points out, that, due to Farrow's failure
to raise this argument at sentencing, the district court did not
have the opportunity to consider whether Farrow committed any
other offense while assaulting Ward that would satisfy the
requirements for applying § 3A1.2. See slip op. at 32 n.18.
However, there is no reason why this court could not permit the
district court to do so during resentencing. See generally United
States v. Moore, 131 F.3d 595, 597-99 (6th Cir. 1997) (noting the
appellate courts' broad power to issue general or limited
remands, depending on the circumstances of each particular case).
For these reasons, I would hold that the district court erred in
using § 3A1.2 to enhance Farrow's sentence.
In the alternative, I would hold that the government did
not, in any case, meet its burden of showing by a preponderance
of the evidence that Farrow knew or should have known that Ward
was a law enforcement officer. The district court's finding that
there was sufficient evidence of Farrow's knowledge of Ward's
official status appeared to be based primarily on the fact that
Farrow was informed that an INS agent was looking for him earlier
in the day. As the district court acknowledged, however, Farrow
likely had some apprehension about the neighborhood and the late
hour, and therefore would not necessarily expect that the four
individuals approaching his vehicle were on official business.
Furthermore, there was no evidence that Farrow knew what Agent
Ward looked like. As Farrow pointed out, if he had hit either the
process server or the friend, both of whom were nearby, this
would not even be a federal case. It stretches credulity to
charge Farrow with reasonable knowledge not only that one of the
individuals approaching his vehicle was an INS agent -- based on
his knowledge that the INS was looking for him -- but also that
the particular individual whom he ultimately hit was an INS
agent. Moreover, as the majority acknowledges, the district court
misinterpreted the jury's verdict when it indicated, with respect
to Farrow's knowledge, that "the jury saw it that way." The jury
found only that Farrow intentionally acted to hit the man in
front of him and that that man was a federal officer. Indeed, the
government explicitly relied in its closing argument on the fact
that it did not have to prove that Farrow knew Ward was an INS
agent. Therefore, I would hold that the district court's finding
that Farrow knew or should have known that Ward was an INS agent
was clearly erroneous, and I would vacate that portion of
Farrow's sentence as well.
For the foregoing reasons, I respectfully DISSENT from the
Part IV.C. of the majority's opinion. I concur fully in the
remainder of Judge Rosen's opinion.
Footnotes
*The Honorable Gerald E. Rosen, United States District Judge
for the Eastern District of Michigan, sitting by designation.
2 The Visa Waiver Pilot Program permits aliens from certain
countries, including Great Britain, to enter the United States
without a visa for up to 90 days, provided that they waive their
right to contest any action seeking their deportation. See 8
U.S.C. § 1187.
3 In his February 7, 1998 statement to the INS, Farrow also
recounted an incident that had occurred about a month earlier,
when he had been threatened by his wife and a neighbor that "they
would get some people to get me" in response to Farrow's act of
touching a neighborhood girl on the back of her head while
playing with his niece and nephews. (J.A. at 238.) Moreover, upon
being asked by defense counsel at trial to characterize the
extent of criminal activity at the Lancer Court apartment complex
where Gail Walker lived, Captain Timothy Roberts of the Warren,
Ohio, police department testified that "[o]n a scale of one to
five, with five being the worst, I would classify Lancer Court as
being a four," and that he "would be wary" if he visited Lancer
Court after dark. (J.A. at 180.)
4 The INS agents' vehicle was a blue Chevrolet Caprice
equipped with a "police package," which consisted of a cage
separating the front and back seats and blue police lights in the
front grill and at the rear of the passenger compartment,
adjacent to the rear window. Agent Baskfield acknowledged at
trial that this car was not readily identifiable as a police
vehicle. (J.A. at 160.)
5 Agent Ward testified that Farrow "made eye contact" with
him before putting his car into gear and pulling forward. (J.A.
at 112.)
6 18 U.S.C. § 111 provides, in relevant part:
(a) In general. Whoever --
(1) forcibly assaults, resists, opposes, impedes,
intimidates, or interferes with any person designated in
section 1114 of this title while engaged in or on account of
the performance of official duties . . .
* * * *
shall, where the acts in violation of this section
constitute only simple assault, be fined under this title or
imprisoned not more than one year, or both, and in all other
cases, be fined under this title or imprisoned not more than
three years, or both.
(b) Enhanced penalty. Whoever, in the commission of any acts
described in subsection (a), uses a deadly or dangerous
weapon (including a weapon intended to cause death or danger
but that fails to do so by reason of a defective component)
or inflicts bodily injury, shall be fined under this title
or imprisoned not more than ten years, or both.
7 As discussed in detail below, a conviction under §
111(a)(1) without the § 111(b) enhancement typically would fall
within U.S.S.G. § 2A2.4 rather than § 2A2.2, and would carry a
base offense level of 6 rather than 15.
8 Although Farrow repeatedly speaks of his purported lack of
"intent to harm" Agent Ward, it is not at all clear that such
intent must be shown here. While this Court has not yet addressed
the question, other courts have concluded that § 111(a)(1) sets
forth a "general intent" rather than a "specific intent" crime.
See, e.g., United States v. Ricketts, 146 F.3d 492, 497 (7th Cir.
1998); United States v. Kleinbart, 27 F.3d 586, 592 (D.C. Cir.),
cert. denied, 513 U.S. 978 (1994); United States v. Sanchez, 914
F.2d 1355, 1358 (9th Cir. 1990), cert. denied, 499 U.S. 978
(1991). To establish general intent, the Government need not show
that the defendant intended to injure a federal officer, but only
"the knowing commission of an act that the law makes a crime."
Kleinbart, 27 F.3d at 592 n.4.
We need not resolve this issue here. Farrow's challenge to
the sufficiency of the evidence does not turn on any distinction
between specific intent -- i.e., intent to injure -- and general
intent -- i.e, intent to drive a car toward a federal officer.
Although Farrow speaks of "intent," the thrust of his argument is
that he did not act "knowingly," as the District Court defined
that term, because he mistakenly believed that the men
approaching his car meant to do him harm. This claim, if accepted
by the jury, would provide an innocent reason for his actions and
would warrant acquittal, regardless of his intent in so acting.
9 Although Farrow does not challenge this determination, he
characterizes the use of a dangerous weapon as the "conduct that
elevated the offense from minor assault to aggravated assault."
(Appellant's Br. at 29.) We cannot agree that any "elevation" was
involved in the District Court's decision to apply § 2A2.2, the
guideline for aggravated assault, rather than the minor assault
guideline at § 2A2.3. Minor assault and aggravated assault are
two distinct offenses under the Sentencing Guidelines, and the
form of assault of which Farrow was convicted under 18 U.S.C. §
111(a)(1) and § 111(b) simply does not constitute "minor assault"
as that offense is defined under § 2A2.3. Thus, Farrow's offense
was not "elevated" to aggravated assault; it was an aggravated
assault. Although, as discussed below, we share Farrow's concern
about "double counting" in his sentence, we wish to emphasize
that we do not view Farrow's sentence as the product of two
"enhancements" based on the same conduct.
10 The sentencing guideline for aggravated assault imposes
various enhancements relating to dangerous weapons:
(A) If a firearm was discharged, increase by 5 levels; (B)
if a dangerous weapon (including a firearm) was otherwise
used, increase by 4 levels; (C) if a dangerous weapon
(including a firearm) was brandished or its use was
threatened, increase by 3 levels.
U.S.S.G. § 2A2.2(b)(2).
11 In declining to follow Williams, the Hudson Court noted
that Second Circuit law does not share this presumption that
double counting is permitted. Hudson, 972 F.2d at 507.
12 Specifically, in United States v. Chichy, 1 F.3d 1501,
1505-07 (6th Cir.), cert. denied, 510 U.S. 1019 (1993), and
United States v. Romano, 970 F.2d 164, 166-67 (6th Cir. 1992), we
had held that the enhancement of sentences under both U.S.S.G. §
2F1.1(b)(2) and § 3B1.1 for the same conduct constituted improper
double counting. In Cobleigh, we observed that the revised §
1B1.1, Application Note 4 did not merely authorize cumulative
adjustments as a general matter, but specifically cited the
enhancements at § 2F1.1(b)(2) and § 3B1.1 as an example of
adjustments that were to be cumulatively applied.
13 The Court did not identify any specific examples of
conduct involving an ordinary object that might be sufficient to
constitute an aggravated assault, yet fall short of actual use of
the object as a weapon. Dunnaway itself did not provide such an
example, as the defendants in that case had actually used a
bottle and their boots during their assault. 88 F.3d at 619. We
also note that the spectrum of hypothetical assaults involving
ordinary objects in ways insufficient to trigger a § 2A2.2(b)(2)
enhancement is somewhat narrower than the Eighth Circuit's
decision might suggest, because even brandishing or threatening
to use the ordinary object as a weapon would trigger a three-
level enhancement under § 2A2.2(b)(2)(C). To the extent the
Eighth Circuit's ruling rests upon a determination that a §
2A2.2(b)(2) enhancement is not "automatic" in all cases where the
weapon at issue is an ordinary object, we suspect that the
universe of such cases where no enhancement applies is very
sparsely populated, and we are aware of no case to date that lies
within this category.
14 Our discussion here, and specifically our disagreement
with the results reached by the Eighth and Ninth Circuits,
necessarily is limited to cases where the same conduct is in fact
used twice in sentencing, once to bring the offense within the
aggravated assault guideline and once to trigger the "otherwise
used" enhancement. We do not address the situation where the
hypothetical case posited by the Eighth and Ninth Circuits
actually occurs: that is, where two different aspects of conduct
can be cited as the basis for using the aggravated assault
guideline and applying the "otherwise used" enhancement. In
United States v. Morris, 131 F.3d 1136, 1139 (5th Cir. 1997),
cert. denied, 118 S. Ct. 1546 (1998), the Fifth Circuit found
itself confronted with such a case, and thus declined to decide
whether to follow the Second Circuit's ruling in Hudson, where
defendant Morris used his vehicle in two separate ways, first by
ramming an FBI agent's vehicle and then by driving his car
"recklessly and at a high rate of speed to escape capture."
Because no single aspect of Morris's conduct was used twice in
his sentencing, Morris did not truly involve "double counting" as
we have defined it, and our ruling here would not govern such a
case.
15 For example, in this case, Farrow's sentence reflects the
same base offense level and four-level enhancement as would apply
to a defendant who both carried a firearm while assaulting a
federal officer (thereby committing an "aggravated assault" under
U.S.S.G. § 2A2.2) and "otherwise used" the firearm by, for
example, pointing it directly at the officer (thereby subjecting
him to a four-level enhancement under § 2A2.2(b)(2)(B)).
16 We express no view on the holding in United States v.
Couch, 1995 WL 369318 (6th Cir. June 20, 1995), an unpublished
decision cited in Judge Nelson's dissent as purportedly
addressing the double counting issue under consideration here.
The brevity of the discussion of double counting in Couch, as
well as its limited recitation of the factual basis for the trial
court's sentencing decision, precludes us from determining
whether that case and this one involve similar circumstances. In
particular, we cannot tell whether the District Court in Couch
relied on factors apart from the use of a metal flashlight as a
dangerous weapon in its decision to apply the aggravated assault
guideline, nor whether the trial court might have concluded that
the assailant's conduct went beyond a single "use" of the
flashlight, where there was testimony that defendant Couch struck
his victim "two or three times on the right side of the head . .
. while the latter was face-down on the ground." 1995 WL 369318,
at *1.
We further note that we share Judge Nelson's reluctance to
embrace the full breadth of the Second Circuit's Hudson decision
in all cases where ordinary objects are used as dangerous
weapons. As indicated in the above discussion, not all such cases
necessarily give rise to double counting, as different aspects of
the defendant's conduct might bring an offense within the
aggravated assault guideline and trigger application of a §
2A2.2(b)(2) enhancement. Neither do we believe, however, that we
should adopt the equally broad but contrary view espoused by the
Eighth and Ninth Circuits, and apparently shared to some degree
by Judge Nelson in his dissent, that the aggravated assault
guideline is immunized from double-counting analysis in all cases
because it is capable of being applied in some cases without
double counting.
17 U.S.S.G. § 3A1.2 provides:
If --
(a) the victim was a government officer or employee; a
former officer or employee; or a member of the immediate
family of any of the above, and the offense of conviction
was motivated by such status; or
(b) during the course of the offense or immediate flight
therefrom, the defendant or a person for whose conduct the
defendant is otherwise accountable, knowing or having
reasonable cause to believe that a person was a law
enforcement or corrections officer, assaulted such officer
in a manner creating a substantial risk of serious bodily
injury,
increase by 3 levels.
18 Judge Moore's dissent on this issue rests in part on an
argument that she concedes was not raised by Farrow, either at
sentencing or in his brief on appeal -- namely, that U.S.S.G. §
3A1.2(b) should not apply because Farrow did not commit "another
offense" in addition to his aggravated assault on Agent Ward.
"Generally, a failure to object at sentencing forfeits any
challenge to the sentence on appeal." United States v. Barajas-
Nunez, 91 F.3d 826, 830 (6th Cir. 1996). We may overlook such a
forfeiture to correct a "plain error," but we "are not required
to do so." Id. Among our reasons for questioning the propriety of
such discretionary review here, we note that Farrow's failure to
raise this argument below deprived the District Court of any
opportunity to identify "another offense" that would satisfy
Judge Moore's construction of § 3A1.2(b). Because Farrow never
argued that "another offense" was necessary, it is hardly
surprising that the sentencing court made no findings on the
existence or absence of any such offense. Further, by omitting
this argument from his brief on appeal, Farrow avoided his burden
of identifying a "plain error" that affected his "substantial
rights" and "seriously affected the fairness, integrity or public
reputation of the judicial proceedings." United States v.
Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998); see also United
States v. Phibbs, 999 F.2d 1053, 1080 n.12 (6th Cir. 1993)
(noting that "it is not our function to craft an appellant's
arguments").
In any event, were we to reach the issue, we would find no
error, plain or otherwise, in the District Court's decision to
apply the "official victim" enhancement. Section 3A1.2(b)
requires only that the defendant assault a law enforcement
officer "during the course of the offense or immediate flight
therefrom." If Application Note 5 to this section were read as
imposing an additional requirement in all cases that "the
offense" must be "another offense" apart from aggravated assault,
then we would be obliged to follow the Guideline itself over any
inconsistent commentary. See Stinson v. United States, 508 U.S.
36, 43, 113 S. Ct. 1913, 1918 (1993). We do not believe, however,
that Application Note 5 is inconsistent with § 3A1.2(b). Rather,
this Note apparently is intended to clarify that the Guideline
applies even where, unlike here, the assault on a law enforcement
officer occurs "proximate in time to the commission of," but
distinct from, "another offense" that might not typically involve
an official victim -- for example, bank robbery. Given the clear
overarching purpose of § 3A1.2 to enhance the penalty in cases
involving official victims, the Sentencing Commission might have
believed it unnecessary to confirm in Note 5 that the enhancement
also applies where the offense itself does involve an official
victim. Certainly, in two other circumstances where the
Sentencing Commission sought to preclude the application of §
3A1.2, it said so in the plainest possible language. See U.S.S.G.
§ 3A1.2, Application Note 3 ("Do not apply this adjustment if the
offense guideline specifically incorporates this factor.");
U.S.S.G. § 2A2.4, Application Note 1 ("[D]o not apply § 3A1.2
(Official Victim) unless subsection (c) requires the offense
level to be determined under § 2A2.2 (Aggravated Assault).")
In our judgment, this interpretation of Application Note 5
not only comports with the language and purpose of § 3A1.2, but
avoids two anomalies introduced by the dissent's approach. As
Judge Moore concedes, her reading of Application Note 5 would
absolve Farrow of any additional penalty for assaulting a federal
officer rather than an ordinary citizen, in violation of the
apparent purpose of § 3A1.2. Moreover, the dissent's construction
would lead to disproportionate sentences for defendants who
commit identical assaults on federal officers, depending on
whether these assaults were or were not accompanied by "another
offense." In the former case, the defendant would be subject to
prosecution for the "other offense" plus assault on a federal
officer in violation of 18 U.S.C. § 111, and his sentence for the
assault would be subject to the "official victim" enhancement. In
the latter case, by contrast, the defendant's sentence for the
assault alone could not be enhanced under § 3A1.2(b), by virtue
of the absence of "another offense." The assaults in the two
cases could be identical in every way, and thus would represent
identical violations of § 111, yet the two defendants' sentences
for this same offense would differ. Nothing in § 3A1.2 or its
Application Notes suggests that the Sentencing Commission
intended the Guideline to operate in this fashion, and we see no
policy basis for these disproportionate results.
1 At oral argument, the government suggested that the
district court relied on § 3A1.2(a), which provides for an
enhancement when the underlying offense is "motivated by" the
official status of the victim, rather than on § 3A1.2(b). This
assertion is incorrect. A review of the transcript of the
sentencing hearing indicates that both the court and counsel
focused in that hearing on Farrow's knowledge, not his
motivation. Furthermore, the Presentence Investigation Report
named § 3A1.2(b) as the basis for the enhancement, J.A. at 251,
and the minutes of the criminal proceedings clearly indicate that
the district court "adopt[ed] the findings and guidelines
application in the Presentence Report" with respect to that
issue, J.A. at 82. Counsel for the government also suggested that
remaining illegally in the country, rather than aggravated
assault, was the "other offense" during the course of which
Farrow assaulted Ward, thus invoking the enhancement under
§ 3A1.2(b). A review of the sentencing transcript, however,
indicates that the district court made no findings with respect
to the legality of Farrow's presence in this country for the
purposes of the sentencing enhancement.
2 As the D.C. Circuit has pointed out, Application Note 1 to
§ 2A2.4 (Obstructing or Impeding Officers) instructs the
sentencer to apply the official-victim enhancement of § 3A1.2 if
the conduct amounts to aggravated assault. See Valdez-Torres, 108
F.3d at 390. However, this requirement is not inconsistent with
the reading of § 3A1.2 that I have suggested: nothing in the
language of Application Note 1 to § 2A2.4 requires a three-level
enhancement in every case of aggravated assault on an officer or
prohibits following the additional requirements imposed by the
language of § 3A1.2(a) and § 3A1.2(b) before giving that
enhancement. Indeed, the reference to § 3A1.2 in Application Note
1 to § 2A2.4 suggests that all the requirements and limitations
of § 3A1.2 should be observed.
3 The majority suggests that another difficulty with my
reading of § 3A1.2 is that defendants who engage in "identical
assaults on federal officers" would receive different sentences,
depending on whether those assaults were committed in the course
of another offense. Slip op. at 33 n.18. I see nothing anomalous,
however, in concluding that a defendant who assaults an officer
in the course of committing a separate crime is more culpable or
more in need of deterrence than a defendant who assaults an
officer while committing no other crime and who is not motivated
by the officer's official status in committing the assault.
|