UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5205
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN S. RANALDSON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:07-cr-00168-1)
Argued: May 11, 2010 Decided: June 29, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Motz and Judge King joined.
ARGUED: David O. Schles, LAW OFFICE OF DAVID SCHLES, Charleston,
West Virginia, for Appellant. Monica Lynn Dillon, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
ON BRIEF: Charles T. Miller, United States Attorney, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
This appeal arises from a conviction and sentence for
assaulting a person executing a federal search warrant in
violation of 18 U.S.C. § 2231(a). The appellant challenges the
district court’s decisions denying a motion to suppress, denying
a motion to sever offenses, refusing to instruct the jury about
self-defense, denying a motion for acquittal or a new trial, and
calculating his applicable sentencing range under federal
sentencing guidelines. For the reasons that follow, we affirm.
I.
A.
On August 3, 2007, West Virginia State Troopers assembled
to execute a federal search warrant at the Red Roof Inn motel in
Charleston, West Virginia. Trooper Andy Purdue had obtained the
warrant following a controlled purchase of cocaine base from
Sean Holloway in Room 209. Once the police officers assembled
outside Room 209, Sergeant Ronald Arthur tapped the door with a
battering ram and yelled “State Police, search warrant.”
J.A. 29. After waiting a few moments, they tried to enter using
a key card provided by the manager, but a deadbolt lock
prevented them from doing so. The officers then rammed the door
repeatedly but still could not enter. They finally broke the
2
window beside the door and called out, “State Police, open the
door.” J.A. 70.
When the door opened from the inside, Sergeant Michael
Oglesby entered and found Appellant Brian Ranaldson displaying
his hands and lying on the floor several feet from the door.
Noticing the bathroom door close, Oglesby announced that someone
was there and, stepping over Ranaldson, proceeded directly to
the bathroom. There he discovered Holloway. Oglesby searched
Holloway for weapons, laid him outside the bathroom, and secured
his hands using flexible restraints.
Arthur entered immediately after Oglesby and began
surveying the room for weapons. When Arthur drew near,
Ranaldson seized him by the legs and pulled hard. Arthur and
Ranaldson then struggled feverishly, striking each other
repeatedly with fists and knees, and becoming locked in a bear
hug. Sergeant Robert Medford and the canine handler intervened,
but Ranaldson continued fighting even after the police dog bit
him. Oglesby soon realized that Arthur needed help and, “being
a bear of a man, six-feet-three, 275 pounds,” came and tackled
everybody to the floor. J.A. 118.
Once knocked over, Ranaldson stopped struggling and the
officers finally managed to secure his hands using flexible
restraints. The officers then hoisted him onto a chair. After
calming down, Ranaldson stated, “I’m sorry for fighting you,”
3
J.A. 39, and explained, “I don’t know what I was thinking,”
J.A. 74. Upon searching the motel room, the officers discovered
marijuana, cocaine base, digital scales, and the cash that had
been used for the controlled purchase.
B.
On August 6, 2007, Ranaldson and Holloway were charged by
criminal complaint with conspiracy to distribute 50 grams or
more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 846
(count 1), and aiding and abetting possession with intent to
distribute 5 grams or more of cocaine base in violation of 21
U.S.C. § 841(a)(1) (count 2). Holloway later entered a plea
agreement and pleaded guilty to count 2.
Ranaldson moved to suppress his statements and all seized
evidence on the ground that the officers used excessive force.
During a hearing on the motion, Ranaldson testified that he had
not resisted, but that the officers nonetheless struck him
repeatedly and allowed the police dog to bite him. Ranaldson
stated that when they entered the motel room Oglesby stepped on
his face and Arthur kicked him lying down, causing him to black
out. Ranaldson added that, upon regaining consciousness, he
found himself stripped almost naked and heard Holloway say that
the officers had beaten him severely. Regarding his injuries,
Ranaldson explained, “my whole face was swollen like I was in a
4
boxing match,” “both of my knees . . . had glass contusions all
around them and on them,” “a piece of my thigh was just
literally hanging down from a dog bite, and I got two teeth
marks on the side of my thigh of just a dog gripping in on my
leg.” J.A. 89.
Arthur and Oglesby also testified during the suppression
hearing. Arthur testified that Ranaldson grabbed his legs,
tried to pull him down, and then fought desperately until
Oglesby intervened. Arthur stated that he first struck
Ranaldson only when Ranaldson almost grabbed Arthur’s holstered
handgun. Arthur also stated that Ranaldson grabbed Medford’s
rifle by the magazine (containing cartridges that are fed into
the gun chamber) but that part detached from the weapon.
Describing Ranaldson’s intensity, Arthur stated that “his eyes
glazed over” and “at that point he became where I felt like I
was fighting for my life.” J.A. 35. Arthur also explained why
force had been necessary: “It seemed like everything we did,
instead of getting compliance, the fight got more intensified
and he seemed to get stronger and more dangerous. . . . He
never did give in and just let us take him into custody.” J.A.
38. Corroborating this account, Oglesby testified to rushing to
help Arthur and Medford upon seeing “Ranaldson literally pick
those two guys up as he returned to his feet.” J.A. 72-73.
5
On December 3, 2007, after hearing the evidence, the
district court denied Ranaldson’s motion to suppress. The court
found that “[t]he steps that the officers took with increasing
intensity as their effort to gain entry proceeded [were]
entirely reasonable and [were] commensurate with the needs of
the moment.” J.A. 119.
C.
On December 11, 2007, the government filed a superseding
indictment against Ranaldson. In addition to counts 1 and 2,
the indictment included another count for assaulting a person
executing a federal search warrant in violation of 18 U.S.C.
§ 2231(a) (count 3). Specifically, the government alleged that
Ranaldson “did unlawfully and forcibly assault and resist,
oppose, impede, and interfere with West Virginia State Police
Sgt. Ronald D. Arthur, a person authorized to execute search
warrants, while he was engaged in the performance of executing a
federal search warrant.” J.A. 126.
On January 9, 2008, Ranaldson moved to sever count 3 from
counts 1 and 2 under Federal Rule of Criminal Procedure 14. 1 He
1
Rule 14 provides in relevant part: “If the joinder of
offenses . . . in an indictment . . . appears to prejudice a
(Continued)
6
argued that joining the offenses prejudiced him because he
wanted to testify regarding count 3 but exercise his Fifth
Amendment privilege regarding counts 1 and 2. The district
court denied this motion, reasoning that count 3 implicated
counts 1 and 2, and that evidence admissible regarding counts 1
and 2 was also admissible regarding count 3, and vice versa.
On January 29, 2009, the case proceeded to trial by jury.
Although Ranaldson did not take the stand, Holloway testified
about what he had observed:
From what I seen, Brian [Ranaldson] looked like he was
unconscious. So, I mean, I don’t know what had
happened before when I was in the bathroom, but when I
came out, when I seen him, he was laying on the floor.
There was like a dude in front of him. I don’t know
if he was choking him or not, but it looked like he
was choking him to me. And there was another officer
over there with a dog and they put me on the floor.
When they put me on the floor, I’m trying to look
forward. One of the officers put like a hat in front
of my face, so I couldn’t see what was going on. I
pulled my head to the right and I seen a little bit,
but I really -- I really couldn’t tell what was all
going on.
J.A. 164. Holloway later reiterated, “It looked like one
[officer] was choking him [Ranaldson] and it looked like the
other one was just standing there,” J.A. 176, and also stated,
defendant . . . the court may order separate trials of counts.”
Fed. R. Crim. P. 14(a).
7
“I guess as soon as they noticed I could see, they put a hat
like in front of me, in front of my face,” J.A. 177. Based upon
this testimony, Ranaldson requested a jury instruction about
self-defense regarding count 3. The district court denied this
request, however, reasoning that “there [was] a lack of
evidentiary support.” J.A. 366.
After presenting its evidence, the government sought
judicial notice that “West Virginia state troopers are
authorized by law to serve federal search warrants.” J.A. 333.
The district court then found “as a matter of law that the first
of the three elements of the assault offense in count three
[wa]s and ha[d] been established; that being that on August 3,
2007, West Virginia State Police Sergeant Ronald D. Arthur was a
person authorized to execute the federal search warrant in this
case.” J.A. 371. The court later instructed the jury as
follows: “I notice and note to you now that as to that first
element, the court has found as a matter of law that Sergeant
Arthur was at that time a person authorized to execute the
federal search warrant in this case.” J.A. 373.
The jury convicted Ranaldson on count 3 and acquitted him
on counts 1 and 2. He timely moved for acquittal or a new trial
under Federal Rules of Criminal Procedure 29 and 33. Ranaldson
argued that, even if West Virginia State Troopers are authorized
by law to execute federal search warrants, the jury instruction
8
about count 3’s first element erroneously prevented the jury
from determining whether Arthur was a West Virginia State
Trooper during the August 3, 2007, search. Although agreeing
with this argument and acknowledging the error, the district
court found this error harmless and denied the motion.
Ranaldson was sentenced on November 19, 2008. Under
federal sentencing guidelines, the district court determined
that a base offense level of 14 using section 2A2.2’s
“aggravated assault” offense guideline was appropriate because
Ranaldson had assaulted Arthur while trying to disarm Medford.
The court added 3 levels under section 2A2.2(b)(3) upon finding
that Arthur suffered bodily injury, 6 levels under section
3A1.2’s “official victim” enhancement upon finding that
Ranaldson attacked due to Arthur’s search warrant, and 2 levels
under section 3C1.1’s “obstruction of justice” enhancement upon
finding that Ranaldson lied during the suppression hearing. The
court also refused to reduce Ranaldson’s offense level for
acceptance of responsibility under section 3E1.1. Given
Ranaldson’s criminal history category of II, the court
calculated a sentencing range of 63 to 78 months using section
5A’s sentencing table. Because the crime of assaulting a person
executing a federal search warrant under 18 U.S.C. § 2231(a)
carries a maximum penalty of three years, however, the court
determined that Ranaldson’s guideline sentence became 36 months
9
pursuant to section 5G1.1. Ultimately, the court sentenced
Ranaldson to the statutory maximum of three years imprisonment.
This appeal followed.
II.
Ranaldson now challenges the decisions below regarding (1)
his motion to suppress, (2) his motion to sever offenses, (3)
his request for a jury instruction about self-defense, (4) his
motion for acquittal or a new trial, and (5) his applicable
sentencing range. We address each matter in turn.
A.
We first consider the district court’s denial of
Ranaldson’s motion to suppress his apology and all evidence
seized during the search on August 3, 2007. “In assessing a
trial court’s ruling on a motion to suppress, we review factual
findings for clear error and legal determinations de novo.”
United States v. Green, 599 F.3d 360, 375 (4th Cir. 2010).
Under the clear-error standard, “[a] factual finding by the
district court may be reversed only if, ‘although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.’” Walton v. Johnson, 440 F.3d 160,
173-74 (4th Cir. 2006) (en banc) (quoting United States v. U.S.
10
Gypsum Co., 333 U.S. 364, 395 (1948)); see United States v.
Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (same). “‘Where
there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.’”
Walker v. Kelly, 589 F.3d 127, 141 (4th Cir. 2009) (quoting
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)).
Ranaldson asserts that the district court’s denial of his
motion to suppress should be reversed because the court’s
finding that the officers used reasonable force is clearly
erroneous. We disagree. Because the district court was
presented with contradictory accounts of what happened,
Ranaldson’s argument about excessive force depended primarily
upon a determination of witness credibility. 2 “[W]hen a district
court’s factual finding is based upon assessments of witness
credibility, such finding is deserving of the highest degree of
appellate deference.” United States v. Thompson, 554 F.3d 450,
452 (4th Cir. 2009) (internal quotations omitted). Given our
2
Ranaldson conceded this below. See J.A. 114 (“On the
issue of excessive force, no question, the court has factual
conflict in testimony to resolve. . . . I agree with the U.S.
Attorney, the defendant’s testimony is directly contradictory to
the police officers, and cannot be reconciled. The court will
have to make a credibility determination on that.”); J.A. 134-35
(noting that “[i]t’s simply a credibility issue” because “the
only conceivable evidence as to what transpired in that motel
room is direct testimony from people who were there”).
11
deferential standard of review, we see no compelling reason to
disturb the district court’s finding that the officers used
reasonable force. The finding was supported by credible
evidence that Ranaldson initiated the altercation with Arthur,
fought desperately despite increasingly forceful attempts to
secure and arrest him, and posed a considerable threat to the
officers’ safety -- e.g., nearly seizing Medford’s rifle. The
finding was also supported by Ranaldson’s spontaneous admission,
“I’m sorry for fighting you.” J.A. 39. For these reasons, we
conclude that the district court’s finding that the officers
used reasonable force is not clearly erroneous, and we therefore
affirm the denial of Ranaldson’s motion to suppress. 3
B.
We next consider the district court’s denial of Ranaldson’s
motion to sever count 3 from counts 1 and 2 under Rule 14. We
review “refusal to sever for abuse of discretion.” United
3
Ranaldson also asserts that his motion to suppress should
have been granted because the officers violated the “knock-and-
announce” rule. Because the Supreme Court declared the
exclusionary rule inapplicable to “knock-and-announce”
violations, Hudson v. Michigan, 547 U.S. 586 (2006), we find
this argument unavailing, see Appellant’s Br. at 14-15
(“Defendant concedes that Hudson . . . states that a violation
of the ‘knock and announce’ rule standing alone is not
sufficient grounds for suppression.”).
12
States v. Montgomery, 262 F.3d 233, 244 (4th Cir. 2001); see
Zafiro v. United States, 506 U.S. 534, 541 (1993) (“Rule 14
leaves the determination of risk of prejudice and any remedy
that may be necessary to the sound discretion of the district
courts.”).
Federal Rule of Criminal Procedure 8 provides that “[t]he
indictment or information may charge a defendant in separate
counts with 2 or more offenses if the offenses charged . . . are
of the same or similar character, or are based on the same act
or transaction, or are connected with or constitute parts of a
common scheme or plan.” Fed. R. Crim. P. 8(a). Rule 14
provides, however, that “[i]f the joinder of offenses . . . in
an indictment, an information, or a consolidation for trial
appears to prejudice a defendant . . . the court may order
separate trials of counts.” Fed. R. Crim. P. 14(a). Under
Rule 14, “[t]he party seeking severance bears the burden of
demonstrating a strong showing of prejudice.” United States v.
Branch, 537 F.3d 328, 341 (4th Cir. 2008) (internal quotations
omitted).
Ranaldson maintains that joinder of count 3 with counts 1
and 2 under Rule 8 prejudiced him because he wanted to testify
regarding count 3 but assert his Fifth Amendment privilege
regarding counts 1 and 2. We previously articulated legal
principles governing this argument as follows:
13
[B]ecause of the unfavorable appearance of testifying
on one charge while remaining silent on another, and
the consequent pressure to testify as to all or none,
the defendant may be confronted with a dilemma;
whether, by remaining silent, to lose the benefit of
vital testimony on one count, rather than risk the
prejudice (as to either or both counts) that would
result from testifying on the other. Obviously no
such dilemma exists where the balance of risk and
advantage in respect of testifying is substantially
the same as to each count. Thus . . . no need for a
severance exists until the defendant makes a
convincing showing that he has both important
testimony to give concerning one count and strong need
to refrain from testifying on the other. In making
such a showing, it is essential that the defendant
present enough information -- regarding the nature of
the testimony he wishes to give on one count and his
reasons for not wishing to testify on the other -- to
satisfy the court that the claim of prejudice is
genuine and to enable it intelligently to weigh the
considerations of economy and expedition in judicial
administration against the defendant’s interest in
having a free choice with respect to testifying.
United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984)
(quoting Baker v. United States, 401 F.2d 958, 976-77 (D.C. Cir.
1968) (internal quotations omitted)); see United States v.
Jamar, 561 F.2d 1103, 1108 n.9 (4th Cir. 1977) (indicating that
Baker, quoted wholesale by Goldman, “does not require a
severance every time a defendant merely alleges that he wishes
to offer limited testimony,” but instead “a particularized
showing must be made concerning the testimony the defendant
wishes to give and his reasons for remaining silent on the
joined counts, so that the court can make an independent
14
evaluation of whether the defendant will be prejudiced to an
extent that outweighs the interests favoring joinder”).
Ranaldson explained below that he wished to testify
regarding count 3 because he hoped to establish the legal
justification of self-defense. Regarding why he wished to
remain silent regarding counts 1 and 2, Ranaldson said only that
[h]e would be subject to cross-examination as to the
nature, extent, and duration of his relationship with
Mr. Holloway, who was his initial codefendant who has
now pled guilty and is expected to testify against
him; the circumstances surrounding his travel from
Ohio to Charleston, West Virginia; his whereabouts and
activities during his [sic] period that he was in
Charleston, West Virginia; [and] the events leading up
to the very moment when the police entered the motel
room.
J.A. 135-36. The district court correctly noted, however, that
evidence regarding counts 1 and 2 would be admissible during a
trial solely on count 3. Evidence that Ranaldson helped
Holloway sell cocaine base, for instance, would be admissible to
show (1) why Arthur had arrived with a federal search warrant
issued following a controlled purchase of cocaine base and (2)
that Ranaldson had wanted to delay the officers’ search to give
Holloway the chance to destroy contraband. 4 Ranaldson
4
Ranaldson appears to have conceded the second example.
See J.A. 138 (arguing that the alleged drug conspiracy does not
encompass Ranaldson’s alleged assault, but admitting that
(Continued)
15
accordingly offered no valid reason for wishing to assert his
Fifth Amendment privilege regarding counts 1 and 2.
Furthermore, all three counts were logically related because
they involved similar evidence and centered around the same
August 3, 2007, search. See United States v. Mir, 525 F.3d 351,
357 (4th Cir. 2008) (affirming denial of severance because
“[t]rying the . . . charge[s] separately would have led to
significant inconvenience for the government and its witnesses,
and required a needless duplication of judicial effort in light
of the legal, factual, and logistical relationship between the
charges”). For these reasons, we conclude that the district
court did not abuse its discretion and therefore affirm the
denial of Ranaldson’s motion for severance under Rule 14.
C.
We next consider Ranaldson’s denied request for a jury
instruction about self-defense. “We review the district court’s
decision to give or refuse to give a jury instruction for abuse
of discretion.” United States v. Passaro, 577 F.3d 207, 221
“certainly they [the government] are entitled, I believe, to
make the argument that in their opinion it goes to motive”).
16
(4th Cir. 2009). “[A] district court should give the
instruction that a criminal defendant requests as to any defense
as long as the instruction: 1) has an evidentiary foundation;
and 2) accurately states the law applicable to the charged
offense.” United States v. Stotts, 113 F.3d 493, 496 (4th Cir.
1997). “A district court commits reversible error in refusing
to provide a proffered jury instruction only when the
instruction (1) was correct; (2) was not substantially covered
by the court’s charge to the jury; and (3) dealt with some point
in the trial so important, that failure to give the requested
instruction seriously impaired the defendant’s ability to
conduct his defense.” Passaro, 577 F.3d at 221 (internal
quotations omitted).
Ranaldson argues that the district court abused its
discretion by refusing to instruct the jury about self-defense
because trial testimony provided a sufficient evidentiary
foundation for the instruction. Assuming that the doctrine of
self-defense applies to assaulting a person executing a federal
search warrant under 18 U.S.C. § 2231(a), 5 we have recognized
5
In United States v. Gore, 592 F.3d 489 (4th Cir. 2010), we
considered whether common-law self-defense was available even
though the relevant federal criminal statute contained no
language providing for any affirmative defense. Neither party
(Continued)
17
that this doctrine has limited applicability where police
officers are involved:
[A] defendant generally cannot invoke self-defense to
justify an assault on a police or correctional
officer. A standard self-defense instruction
therefore does not apply to such cases. However, a
limited right of self-defense does arise if the
defendant presents evidence that the officer used
excessive force in carrying out his official duties.
A defendant who responds to an officer’s use of
excessive force with force reasonably necessary for
self-protection under the circumstances has acted with
justifiable and excusable cause . . . .
Stotts, 113 F.3d at 496 (internal quotations and citations
omitted). Regarding whether “excessive force” was used, we have
explained that “[t]he test for whether force employed to effect
a seizure is excessive is one of ‘“objective reasonableness”
under the circumstances.’” Waterman v. Batton, 393 F.3d 471,
476 (4th Cir. 2005) (quoting Graham v. Connor, 490 U.S. 386, 399
(1989)). “Because ‘police officers are often forced to make
split-second judgments . . . in circumstances that are tense,
uncertain, and rapidly evolving,’ the facts must be evaluated
from the perspective of a reasonable officer on the scene, and
raised that issue in this case, and because we affirm on other
grounds, we do not consider it.
18
the use of hindsight must be avoided.” Id. at 476-77 (quoting
Graham, 490 U.S. at 397).
Ranaldson argues that Holloway’s testimony provided a
sufficient evidentiary foundation for a jury instruction about
self-defense because Holloway stated, “It looked like one
[officer] was choking him [Ranaldson] and it looked like the
other one was just standing there,” J.A. 176, and also stated,
“I guess as soon as they noticed I could see, they put a hat
like in front of me, in front of my face.” J.A. 176-77. These
statements alone are insufficient to establish self-defense
because, although they describe the officers’ conduct, the
statements reveal nothing about whether Ranaldson responded
“with force reasonably necessary for self-protection.” Stotts,
113 F.3d at 496. Holloway also admitted, “I don’t know what had
happened before when I was in the bathroom,” “I don’t know if he
was choking him or not,” and “I really couldn’t tell what was
all going on.” J.A. 164. For these reasons, the district court
did not abuse its discretion by not instructing the jury about
self-defense. We therefore affirm this decision.
19
D.
We next consider the district court’s denial of Ranaldson’s
motion for acquittal under Rule 29 or a new trial under Rule 33. 6
“We review de novo a district court’s denial of a Rule 29 motion
for judgment of acquittal,” United States v. Alerre, 430 F.3d
681, 693 (4th Cir. 2005), but “[w]e review for abuse of
discretion a district court’s denial of a [Rule 33] motion . . .
for a new trial,” United States v. Smith, 451 F.3d 209, 216 (4th
Cir. 2006). With regard to Rule 29, “we are obliged to sustain
a guilty verdict if, viewing the evidence in the light most
favorable to the Government, it is supported by ‘substantial
evidence,’” meaning “‘evidence that a reasonable finder of fact
could accept as adequate and sufficient to support a conclusion
of a defendant’s guilt beyond a reasonable doubt.’” Alerre, 430
F.3d at 693 (quoting United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc)). With regard to Rule 33, “a trial
court should exercise its discretion to award a new trial
sparingly, and a jury verdict is not to be overturned except in
6
Rule 29 provides that “the court on the defendant’s motion
must enter a judgment of acquittal of any offense for which the
evidence is insufficient to sustain a conviction.” Fed. R.
Crim. P. 29(a). And Rule 33 provides that “[u]pon the
defendant’s motion, the court may vacate any judgment and grant
a new trial if the interest of justice so requires.” Fed. R.
Crim. P. 33(a).
20
the rare circumstance when the evidence weighs heavily against
it.” Smith, 451 F.3d at 217 (internal quotations omitted).
Ranaldson challenges the district court’s determination
that its erroneous jury instruction regarding count 3 was
harmless error. For the offense of assaulting a person
executing a federal search warrant under 18 U.S.C. § 2231(a),
the government had to prove three elements: (1) that on August
3, 2007, Arthur was authorized to execute a federal search
warrant; (2) that Ranaldson “did unlawfully and forcibly assault
or resist, oppose, impede, or interfere” with Arthur; and (3)
that Ranaldson did this while Arthur was executing a federal
search warrant. J.A. 373. Having concluded that all West
Virginia State Troopers are authorized to execute federal search
warrants, the district court instructed the jury that the first
element was established: “I notice and note to you now that as
to that first element, the court has found as a matter of law
that Sergeant Arthur was at that time a person authorized to
execute the federal search warrant in this case.” J.A. 373.
The court later admitted that this was error because, although
any West Virginia State Trooper may have had authority to
execute the search warrant, the jury should have been required
to determine whether Arthur was a West Virginia State Trooper on
21
August 3, 2007. 7 Regardless, the court denied Ranaldson’s motion
for acquittal or a new trial upon concluding that the error was
harmless.
The district court’s determination of harmlessness was
based upon our precedent United States v. Lovern, 293 F.3d 695
(4th Cir. 2002). There, the defendant was charged under 26
U.S.C. § 7212(a) with intimidating a federal employee acting in
his official capacity under Title 26. The district court
instructed the jury that the employee whom the defendant
allegedly threatened “was acting in the scope of his official
duties under Title 26 during the . . . conversation.” Id. at
699. Because this established an essential element of the
charged offense, we found that giving this instruction was
constitutional error. See United States v. Gaudin, 515 U.S.
506, 510 (1995) (noting that the Fifth Amendment Due Process
7
Ranaldson maintains that the jury should have also been
required to determine whether West Virginia State Troopers are
authorized by law to execute federal search warrants. The
district court ruled that Congress had granted them such
authority pursuant to 18 U.S.C. § 3105 and W. Va. Code § 15-2-
12. Because this was purely a legal question, see Stephens ex
rel. R.E. v. Astrue, 565 F.3d 131, 137 (4th Cir. 2009)
(considering statutory interpretation “a quintessential question
of law”), the court did not err by deciding it for the jury, see
Dimick v. Schiedt, 293 U.S. 474, 486 (1935) (“The controlling
distinction between the power of the court and that of the jury
is that the former is the power to determine the law and the
latter to determine the facts.”).
22
Clause and the Sixth Amendment jury trial guarantee “require
criminal convictions to rest upon a jury determination that the
defendant is guilty of every element of the crime with which he
is charged, beyond a reasonable doubt”). We found this error
harmless, however, because although the defendant “contested the
element’s not being submitted to the jury, he did not ‘raise[]
evidence sufficient to support a contrary finding . . .’ to that
reached by the judge.” Lovern, 293 F.3d at 701 (quoting Neder
v. United States, 527 U.S. 1, 19 (1999)) (alterations in
original).
Under Lovern, we should assess harmlessness here by
considering whether Ranaldson offered sufficient evidence during
trial to establish that Arthur had not been a West Virginia
State Trooper during the August 3, 2007, search. We conclude
that he did not.
Arthur wore his police uniform during trial and testified
that he had been employed by the West Virginia State Police
Department for the last 13 years. The evidence also showed that
Arthur conducted himself as a West Virginia State Trooper during
the August 3, 2007, search. More importantly, Ranaldson offered
no evidence to the contrary. Indeed, defense counsel frequently
called Arthur “Sergeant Arthur,” J.A. 270, and conceded during
oral argument that Arthur was indeed a West Virginia State
Trooper on August 3, 2007. For these reasons, we agree that the
23
erroneous jury instruction about count 3 was harmless. We
therefore affirm the district court’s denial of Ranaldson’s
motion for acquittal under Rule 29 or a new trial under Rule 33.
E.
We finally turn to several challenges that Ranaldson brings
regarding the district court’s application of federal sentencing
guidelines. “In considering challenges to a sentencing court’s
application of the Guidelines, we review factual determinations
for clear error and legal issues de novo.” Elliot v. United
States, 332 F.3d 753, 761 (4th Cir. 2003).
First, Ranaldson argues that his offense of conviction
should have been deemed a “minor assault” under section 2A2.3
rather than an “aggravated assault” under section 2A2.2.
According to relevant commentary, “‘[a]ggravated assault’ means
a felonious assault that involved (A) a dangerous weapon with
intent to cause bodily injury (i.e., not merely to frighten)
with that weapon; (B) serious bodily injury; or (C) an intent to
commit another felony.” USSG § 2A2.2 application note 1. The
district court reasoned that Ranaldson’s assault involved
“intent to commit another felony” because Ranaldson tried to
seize Medford’s rifle during the struggle and West Virginia law
provides that “[a]ny person who intentionally . . . attempts to
disarm any law-enforcement officer acting in his or her official
24
capacity, is guilty of a felony.” W. Va. Code § 61-5-17(b). We
find no error here and Ranaldson provides no guidance about how
the court might have been incorrect. 8 We therefore affirm the
district court’s finding that Ranaldson’s offense of conviction
was an “aggravated assault” under section 2A2.2.
Second, Ranaldson argues that the district court should not
have applied the specific offense characteristic of section
2A2.2(b)(3)(A), namely, that the victim suffered “bodily
injury.” According to relevant commentary, “‘[b]odily injury’
means any significant injury; e.g., an injury that is painful
and obvious, or is of a type for which medical attention
ordinarily would be sought.” USSG § 1B1.1 application note
1(B); see USSG § 2A2.2 application note 1. The district court
reasoned that Arthur suffered “significant injury” under that
standard because Ranaldson’s punches caused him to spit out
blood and chip a tooth. The court further noted that Arthur
also received various bumps and bruises. Ranaldson concedes
these factual findings but concludes without explanation that
Arthur’s injuries were insufficiently serious. We find this
argument unpersuasive and thus affirm the district court’s
8
Ranaldson’s only argument here misconstrues the district
court’s reasoning. See Appellant’s Br. at 49-50.
25
conclusion that Arthur suffered “bodily injury” under section
2A2.2(b)(3)(A).
Third, Ranaldson argues that the district court should not
have applied the “official victim” enhancement under section
3A1.2. The enhancement applies “[i]f (1) the victim was . . . a
government officer or employee . . . and (2) the offense of
conviction was motivated by such status.” USSG § 3A1.2(a). The
district court applied the enhancement upon finding that “the
defendant engaged in the assault against the officers in order
to interfere with the official investigation of the drug
offense, that is, to give Holloway time to flush the drugs.”
J.A. 478. Given the record evidence already discussed, we
cannot find clear error here and thus affirm the court’s
decision to apply the “official victim” enhancement under
section 3A1.2. 9
Finally, Ranaldson argues that the district court erred by
not reducing his offense level under section 3E1.1 for
acceptance of responsibility. The court refused because
9
Ranaldson also argues that the district court erred by
applying the “obstruction of justice” enhancement of section
3C1.1 after finding that Ranaldson had lied during the
suppression hearing in denying the police officers’ allegations.
Other than insisting upon his innocence, Ranaldson gives no
reason why this factual finding was clearly erroneous. We thus
affirm the court’s decision.
26
Ranaldson had declined to plead guilty. Such reasoning accords
with the relevant commentary: “This adjustment is not intended
to apply to a defendant who puts the government to its burden of
proof at trial by denying the essential factual elements of
guilt, is convicted, and only then admits guilt and expresses
remorse.” USSG § 3E1.1 application note 2. The court’s finding
that Ranaldson falsely denied conduct relevant to the offense
also supports refusing to apply section 3E1.1. See Elliot, 332
F.3d at 766 (affirming denial of adjustment for acceptance of
responsibility under section 3E1.1 because the defendant “did
falsely deny certain aspects of her relevant conduct” (emphasis
omitted)). We therefore affirm the district court’s refusal to
reduce Ranaldson’s offense level under section 3E1.1 for
acceptance of responsibility.
III.
For the reasons stated above, we
AFFIRM.
27