IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-11456
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDIE DEAN MORRIS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
_________________________________________________________________
December 19, 1997
Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal presents issues involving application of the
Sentencing Guidelines with respect to aggravated assaults and
enhancements for the use of a dangerous weapon. Eddie Dean Morris
was convicted for assaulting a federal agent with a deadly weapon
(Morris rammed the agent’s automobile with his truck), while the
agent was engaged in his official duties, in violation of 18 U.S.C.
§ 111. At sentencing, the district court applied the aggravated
assault Guidelines to determine Morris’s base offense level and
applied an enhancement for his use of a dangerous weapon. The
district court also enhanced Morris’s sentence for obstructing
justice by committing perjury. Morris appeals only his sentence.
He challenges the district court’s factual findings that he
committed perjury and that he assaulted federal agents with the
intent to inflict bodily harm. Morris further contends that, by
enhancing his sentence for the use of a dangerous weapon, the
district court engaged in impermissible double counting. For the
reasons that follow, we affirm.
I
Eddie Dean Morris was wanted for unlawful flight to avoid
prosecution for nonpayment of child support. On May 13, 1996,
agents of the Federal Bureau of Investigation (“FBI”) received
information that Morris was in the Alley Cat’s Bingo Hall in
Dallas, Texas. FBI agents were dispatched to the bingo hall to
arrest Morris. They waited outside the bingo hall and watched
Morris’s vehicle, a Chevrolet Blazer. Eventually, Morris and a
female companion left the bingo hall and went to his car. When
Morris drove out of the parking lot, the agents followed. They
were joined by two marked Dallas police squad cars, who turned on
their red emergency lights and followed Morris into the parking lot
of a 7-Eleven convenience store. John Skillestad, an FBI agent,
also drove into the 7-Eleven parking lot and stopped his vehicle
five to ten feet from the right front fender of Morris’s Blazer.
Notwithstanding, Morris drove off suddenly, taking an immediate
left turn out of the parking lot. The agents followed. During a
high-speed chase, Morris swerved his Blazer into Agent Skillestad’s
vehicle, causing the agent to veer off the road into a parking lot
2
and towards a concrete embankment. Agent Skillestad crashed
through a tire stop, went over the concrete embankment, and dropped
almost three feet to the ground. Uninjured, Agent Skillestad
rejoined the chase, which ended with Morris’s capture and arrest.
A jury convicted Morris of assaulting a federal agent with a
deadly weapon, while the agent was engaged in his official duties,
in violation of 18 U.S.C. § 111.1 At the sentencing hearing that
followed, the district court overruled Morris’s objections to the
presentence report and assigned him an offense level of 26. In
arriving at this figure, the district court began with a base
offense level of fifteen for an aggravated assault. The court then
added a four-level enhancement for otherwise using a dangerous
weapon, a three-level enhancement because the assault was motivated
by the agent’s status as a government official, a two-level
enhancement for obstruction of justice, and another two-level
enhancement for recklessly creating a substantial risk of death or
serious bodily injury in the course of fleeing from a law
enforcement officer. The total offense level of 26, combined with
1
The statute provides:
Whoever forcibly assaults, resists, opposes,
impedes, intimidates, or interferes with any person ...
in or on account of the performance of his official
duties, shall be fined not more than $5,000 or imprisoned
not more than three years, or both.
Whoever, in the commission of any such acts uses a
deadly or dangerous weapon, shall be fined not more than
$10,000 or imprisoned not more than ten years, or both.
18 U.S.C. § 111.
3
Morris’s criminal history category of I, yielded a sentencing range
of 63 to 78 months. The district court sentenced Morris to a
70-month term of imprisonment, a three-year term of supervised
release, and $8,702.38 in restitution. Morris timely filed his
notice of appeal, and this appeal followed.
II
Morris challenges his sentence imposed under the Sentencing
Guidelines. This court will uphold the sentence imposed so long as
it is the product of a correct application of the Guidelines to
factual findings that are not clearly erroneous. United States v.
Jackson, 22 F.3d 583, 584 (5th Cir. 1994). Accordingly, “[w]e
review factual findings made by a district court for sentencing
purposes under the clearly erroneous standard, and review the
district court’s legal application of the Guidelines de novo.”
United States v. Asibor, 109 F.3d 1023, 1040 (5th Cir. 1997).
III
A
Morris first argues that the district court erred in applying
U.S.S.G. § 2A2.2, entitled “Aggravated Assault.” Morris maintains
that the evidence did not support a finding that he intended to do
bodily harm to Agent Skillestad. The commentary to section 2A2.2
defines aggravated assault, in relevant part, as “a felonious
4
assault that involved . . . a dangerous weapon with intent to do
bodily harm (i.e., not merely to frighten).” See id., comment,
(n.1). Morris does not dispute the characterization of his Blazer
as a dangerous weapon under the Guidelines. Thus, the question is
whether the district court erred when it found that Morris intended
to cause bodily harm when he swerved his Blazer into Agent
Skillestad’s vehicle.
A number of law enforcement officers testified at trial that
Morris intentionally rammed his Blazer into Agent Skillestad’s
vehicle hard enough to cause it to leave the road. Although Agent
Skillestad was not injured, the intent to do bodily harm could be
inferred from Morris’s conduct. See United States v. Garcia, 34
F.3d 6, 11 (1st Cir. 1994) (the defendant’s conduct of driving his
car directly at a law enforcement officer supported inference that
the defendant intended to cause serious bodily harm). The district
court, therefore, did not clearly err in concluding that Morris
committed an aggravated assault under the Guidelines and sentencing
him accordingly.
B
Morris next argues that, in the event we should find the
evidence sufficient to support the conclusion that he used a
dangerous weapon with the intent to do bodily harm by ramming Agent
Skillestad’s automobile, the district court erred when it enhanced
his base offense level under section 2A2.2(b)(2)(B) of the
Guidelines for “otherwise us[ing]” a dangerous weapon in the
5
commission of the aggravated assault.2 He contends that because
his vehicle, ordinarily a nondangerous object, became a dangerous
weapon only when he used it to ram Agent Skillestad’s car, the
enhancement for “otherwise using a dangerous weapon” was based on
the identical conduct that justified his sentence for aggravated
assault. Morris maintains, therefore, that he did not otherwise
use a dangerous weapon and, further, that applying this enhancement
to his conduct resulted in double counting.
In support of his position, Morris points us to the Second
Circuit’s decision in United States v. Hudson, 972 F.2d 504 (2d
Cir. 1992), where the court held that “the Guidelines proscribe
impermissible double counting where it is the use of an ordinary
object as dangerous weapon that transforms a ‘minor’ assault into
2
Sentences involving an assault with a dangerous weapon are
subject to the following enhancement scheme:
(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.
The commentary to the “General Application Principles” section of
the Guidelines further explains:
“Otherwise used” with reference to a dangerous weapon
(including a firearm) means that the conduct did not
amount to the discharge of a firearm but was more than
brandishing, displaying, or possessing a firearm or other
dangerous weapon.
Id. § 1B1.1, comment, (n.1(g)).
6
an ‘aggravated’ one.” Id. at 506. The court reasoned that, were
it to hold otherwise, “aggravated assault with a [nondangerous
object] will always lead to a three or four-level enhancement,
because mere possession of a [nondangerous object] during an
assault will not convert an ordinary assault into an aggravated
one.” Id. at 507.3
We find it unnecessary to determine whether the Guidelines
recognize a distinction between objects that are “inherently
dangerous” weapons and ordinary objects that become dangerous only
through their use.4 Even were we to adopt the Second Circuit’s
rationale, application of an enhancement for otherwise using a
dangerous weapon would not constitute double counting in this case.
Assuming a particular use is essential to transform an ordinary
object into a dangerous weapon, Morris used his Blazer in two
3
The Second Circuit’s position in this respect is at odds with
the views of every other circuit that has considered whether the
use of an ordinarily nondangerous object during an assault, thereby
making the object a dangerous weapon and turning a minor assault
into an aggravated one, precludes an enhancement for otherwise
using a dangerous weapon in the course of the same assault. See
United States v. Johnston, 107 F.3d 200, 211-12 (3d Cir. 1997);
United States v. Dunnaway, 88 F.3d 617, 619 (8th Cir. 1996); United
States v. Sorenson, 58 F.3d 1154, 1161 (7th Cir. 1995); Garcia, 34
F.3d at 11-12; United States v. Reese, 2 F.3d 870, 896 (9th Cir.
1993); United States v. Williams, 954 F.2d 204, 206-08 (4th Cir.
1992).
4
The commentary to § 1B1.1 defines a “dangerous weapon” merely
as “an instrument capable of inflicting death or serious bodily
injury.” U.S.S.G. § 1B1.1, comment. (n.1(d)) (emphasis added).
Many ordinary objects, including automobiles, have the capacity to
inflict death or serious bodily injury. The Guidelines simply are
not clear whether the use of such objects in a particular way is
necessary to classify them as dangerous weapons.
7
separate ways during the course of this criminal episode.5 First,
he rammed Agent Skillestad’s vehicle. Second, he engaged federal
agents in a reckless, high-speed chase. By ramming Agent
Skillestad’s vehicle with his Blazer, Morris clearly rendered the
Blazer a dangerous weapon and committed an assault with a dangerous
weapon in this case. Fleeing from law enforcement authorities by
driving the Blazer recklessly and at a high rate of speed to escape
capture constituted another dangerous, life-threatening use of the
vehicle--which already had become a dangerous weapon in the course
of this criminal event. Consequently, this second dangerous use
justifies the enhancement for otherwise using a dangerous weapon.
In terms of the Guidelines, it involves further dangerous use of
the Blazer that was greater than mere display or possession. See
U.S.S.G. § 1B1.1, comment, (n.1(g)) (defining “otherwise used” to
mean conduct less than discharging a firearm, but more than
displaying or possessing a dangerous weapon). Thus, no double
counting resulted from application of the Sentencing Guidelines to
this set of facts.
5
The degree to which a dangerous weapon is involved in the
assault is a “Specific Offense Characteristic” of an aggravated
assault under section 2A2.2(b). The Guidelines provide that, in
determining the existence of specific offense characteristics
(e.g., whether a dangerous weapon is “otherwise used” during an
aggravated assault), the court is to consider “all acts and
omissions committed . . . by the defendant . . . that occurred
during the commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to avoid detection
or responsibility for that offense.” § 1B1.3(a)(1).
8
Nevertheless, even if application of the enhancement at issue
constituted double counting, we have recognized that the sentencing
guidelines do not prohibit all double counting. United States v.
Box, 50 F.3d 345, 359 (5th Cir.), cert. denied, ___ U.S. ___, 116
S.Ct. 309, 133 L.Ed.2d 213 (1995); United States v. Godfrey, 25
F.3d 263, 264 (5th Cir.), cert. denied, 513 U.S. 965, 115 S.Ct.
429, 130 L.Ed.2d 342 (1994). Rather, double counting is prohibited
only if the particular guidelines at issue forbid it. Box, 50 F.3d
at 359. Section 2A2.2 does not expressly prohibit the type of
double counting alleged by Morris. Accordingly, the district court
did not err by applying a four-point enhancement for “otherwise
us[ing]” a dangerous weapon in this case.
C
Finally, Morris argues that the district court clearly erred
by adding two levels to his base offense level for obstruction of
justice. Section 3C1.1 of the Sentencing Guidelines provides for
a two-level enhancement “[i]f the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of
justice during the investigation, prosecution, or sentencing of the
instant offense ....” U.S.S.G. § 3C1.1. If the district court
finds that the defendant committed perjury at trial, this
enhancement is required. See United States v. Dunnigan, 507 U.S.
87, 98, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993); United States v.
Humphrey, 7 F.3d 1186, 1189 (5th Cir. 1993).
9
Here, the district court found that “Morris was untruthful at
trial with respect to material matters in this case.” Numerous
witnesses had testified that Morris deliberately rammed his Blazer
into Agent Skillestad’s vehicle. Nonetheless, Morris testified
that he did not deliberately swerve his vehicle. Because the
record supports the district court’s finding that Morris committed
perjury, the court’s imposition of a two-level enhancement for
obstruction of justice was not clearly erroneous.
IV
For the foregoing reasons, the district court’s calculation of
Morris’s sentence is
A F F I R M E D.
10