UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1598
UNITED STATES,
Appellee,
v.
EDUARDO GARCIA,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Circuit Judge.
Randy Olen, with whom John M. Cicilline, was on brief for
appellant.
Margaret E. Curran, Assistant United States Attorney, with
whom Edwin J. Gale, United States Attorney, and Gerard B.
Sullivan, Assistant United States Attorney, were on brief for
appellee.
September 7, 1994
TORRUELLA, Circuit Judge. Defendant-appellant Eduardo
Garc a pled guilty to one charge of assault on a federal officer
in violation of 18 U.S.C. 111(a)(1) and (b). Using the 1992
version of the Sentencing Guidelines, the district court
sentenced Garc a to 41 months imprisonment. Garc a appeals his
sentence, claiming that the district court erred (1) in selecting
the aggravated assault sentencing guidelines; (2) in imposing a
four-level specific offense characteristic adjustment for using a
dangerous weapon; (3) in imposing a two-level enhancement for
obstruction of justice; and (4) in assessing a three-level
official victim enhancement. We affirm the district court's
sentence.
BACKGROUND
On September 15, 1992, Alcohol Tobacco and Firearms
Special Agent John Lennon and Detectives Francisco Col n and
Robert Drohan of the Providence Police Department's Special
Investigations Bureau were on their way to interview a witness
when Detective Drohan observed a silver Toyota occupied by two
males in the parking lot of a McDonald's restaurant on Broad
Street in Providence, Rhode Island. Because neither man appeared
to have any food nor appeared to be ordering any, and because the
area was a known drug trafficking location, Detective Drohan
suspected the two men were loitering for the purpose of making a
narcotics purchase.
Agent Lennon and the detectives placed the vehicle and
its occupants under surveillance. After a short period of time,
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a black Toyota operated by Garc a parked alongside the silver
Toyota. Garc a approached the occupants of the silver Toyota, who
were later identified as Raymond Ladou, the driver, and Mark
McMullen, the passenger. Garc a then got back in his car and
drove the black Toyota out of the McDonald's parking lot followed
by Ladou and McMullen in the silver Toyota.
Agent Lennon and the detectives followed the cars to
Indiana Avenue. They requested a marked cruiser to back them up,
and John Mellor, a uniformed policeman, operating a marked
cruiser, responded to the request for assistance. Agent Lennon
and the detectives drove past both suspect vehicles and observed
McMullen in Garc a's car. McMullen and Garc a were both looking
down and appeared to be examining something in their laps.
Detective Drohan and Officer Mellor used the unmarked
police car and the marked cruiser to block the silver Toyota and
the street. Agent Lennon and the detectives approached Garc a's
car, displaying their weapons and identification, and they yelled
"police." When Detective Col n reached the driver's side, he saw
numerous packages of what he believed to be heroin on Garc a's
lap. Garc a drove off suddenly with McMullen in the car.
Garc a turned his car toward Detective Col n who jumped
out of the way. Next, Garc a directed the car at Agent Lennon
who had to leap onto a parked car to avoid being struck. Garc a
then drove at Detective Drohan and subsequently mounted the curb
to get around the marked police cruiser. Patrolman Mellor and
Detectives Col n and Drohan shot at Garc a's vehicle. Despite a
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flattened tire, Garc a continued to flee. Agent Lennon took
Ladou into custody while Detectives Col n and Drohan and
additional marked cruisers pursued Garc a and McMullen.
According to the detectives, during the pursuit, Garc a threw an
undetermined amount of money and heroin out of the window.
Garc a and McMullen were apprehended after they abandoned the
vehicle. A subsequent search along the attempted escape route
yielded $865 in cash but no drugs.
Ladou gave a written statement to the police in which
he stated that McMullen had paid him $40 to drive him to
Providence, Rhode Island, and that McMullen told him "that a guy
was going to come in a black car, a Puerto Rican and that he was
going to do a deal." Ladou also stated that although McMullen
told him that he was going to Providence to buy a car, Ladou
suspected that McMullen was going to participate in a heroin
transaction because he knew McMullen was a heroin user.
McMullen also gave a written statement to the police in
which he admitted that he came to Providence to buy heroin.
McMullen described his supplier in this way, "there is a guy I
don't know his name, I go to the McDonald's and I punch in a
beeper number . . . and then a code number . . . then the number
of bundles you want. A while later the guy shows up in a small
black car, and brings you the heroin." McMullen knew Garc a by
the pseudonym, "Joseph."
The government sought to subpoena McMullen for the
grand jury investigation of this matter. McMullen, however,
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avoided service of the subpoena. Authorities later found
McMullen, but he was unwilling to cooperate with the
investigation.
Pursuant to a written plea agreement with the
government, Garc a pleaded guilty to assault on a federal officer
and using a dangerous weapon in violation of 18 U.S.C.
111(a)(1) and (b), and in return, the government dismissed the
charge of attempting to distribute heroin in violation of 21
U.S.C. 841(A)(1).
The court adopted the pre-sentencing report's ("PSR")
calculation of Garc a's sentence as follows. Because the charge
against Garc a invoked the enhanced penalty of 18 U.S.C.
111(b), for assaults involving the use of a deadly or dangerous
weapon, the PSR selected the aggravated assault guideline,
U.S.S.G. 2A2.2. Section 2A2 sets a base offense level of
fifteen. Following the express language of 2A2.2(b) of the
Guidelines, the PSR added the four-level enhancement because a
dangerous weapon (the car) was used in the assault.
The PSR noted that the victim of the 18 U.S.C. 111
assault was Agent Lennon, a federal agent. It further noted that
the facts as stated in the prosecution version established that
at the time of the offense, Garc a was aware that the victim was
a law enforcement officer and that the assault was motivated by
the victim's status as a law enforcement officer. Accordingly,
the PSR added the three-level, official victim adjustment
provided by 3A1.2(a).
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The PSR also added a two-level adjustment for
obstruction of justice under 3C1.1. It found that by throwing
heroin out the window during his attempt to avoid arrest, Garc a
had materially hindered the official investigation and
prosecution. The PSR concluded that as a result of Garc a's
action, the government was unable to prove the drug charges.
Subtracting three levels for acceptance of
responsibility pursuant to 3E1.1, the probation officer arrived
at a total offense level of 21. Because Garc a had a criminal
history category of I, his sentence range was 37-46 months.
The district court adopted the recommendations of the
PSR in calculating Garc a's sentence. Garc a contends that the
district court made several errors in calculating his offense
level for sentencing. The issues addressed in this appeal were
the subject of objections Garc a filed to the PSR which his
counsel reiterated at sentencing and which the district court did
not find persuasive.
STANDARD OF REVIEW
We review the district court's findings of fact for
clear error and accord due deference to the court's application
of the Sentencing Guidelines to the facts. 18 U.S.C. 3742(e);
United States v. Ruiz, 905 F.2d 499, 507 (1st Cir. 1990). Our
review of questions of legal interpretation of the Guidelines is
de novo. United States v. Phillips, 952 F.2d 591, 594 (1st Cir.
1991), cert. denied, 113 S. Ct. 113 (1992).
DISCUSSION
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The district court applied U.S.S.G 2A2.2, entitled
"Aggravated Assault," as the applicable guidelines section to
determine Garc a's offense conduct.1
The commentary to 2A2.2 defines aggravated assault,
in relevant part, as "a felonious assault that involved . . . a
dangerous weapon with intent to do bodily harm (i.e., not merely
to frighten)." U.S.S.G. 2A2.2, cmt., note 1. Hence, in order
to apply 2A2.2, the aggravated assault provision, the district
court was required to find that when Garc a drove his car at the
officers, he did so with the intent to cause bodily harm. Garc a
does not dispute that his automobile qualified as a dangerous
weapon. Rather, Garc a contends that he did not have the intent
required by 2A2.2.
The district court's finding of intent is a factual
finding which we review for clear error. United States v.
Wheelwright, 918 F.2d 226, 227-28 (1st Cir. 1990). Where the
undisputed facts support more than one plausible inference, the
sentencing court's choice among supportable alternatives cannot
1 Garc a contends that the court should not have applied
U.S.S.G. 2A2.2. He contends that the court erred by
classifying his conduct as aggravated assault and that the proper
guideline for his offense conduct is 2A2.4, entitled
"Obstructing or Impeding Officers."
Garc a did not argue in the district court that 2A2.4 should
apply. Garc a therefore waived this argument. United States v.
Ortiz, 966 F.2d 707, 717 (1st Cir. 1992) (citing United States v.
Dietz, 950 F.2d 50, 55 (1st Cir. 1991) for the proposition that
"in [the] criminal sentencing context, arguments not addressed to
the trial court at the appropriate time are deemed to be
abandoned") (internal citation omitted), cert. denied, 113 S.
Ct. 1005 (1993).
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be clearly erroneous. United States v. Newman, 982 F.2d 665,
671-72 (1st Cir. 1992), cert. denied, 114 S. Ct. 59 (1993).
Garc a contends that his statement of acceptance of
responsibility negates the possibility that he intended to cause
bodily harm to Agent Lennon. The Probation Department adopted
the following statement by Garc a when it made its
recommendations in the PSR:
I, Eduardo Garc a, hereby accept
responsibility for my actions on
September 15, 1992.
I was on Indiana Avenue when a car pulled
in front of mine and a bunch of men
jumped out with guns. I then drove my
car in an attempt to get away from this
area. During this time I drove my car at
a person which I now know was Special
Agent Lennon from the Bureau of Alcohol,
Tobacco and Firearms.
I drove at the agent in an attempt to get
out of there. I never intended to hit
him with my car. It was my intention to
scare him so I could leave.
(emphasis added).
Based on this statement, the Probation Department
recommended and the court granted a three-level decrease of
Garc a's offense level pursuant to U.S.S.G. 3E1.1, "Acceptance
of Responsibility." Garc a contends that his statement was
implicitly accepted as truthful by the Probation Department, the
Government, and the court when the Probation Department adopted
the statement made by Garc a into the PSR and the court granted
Garc a a reduction in sentence based on 3E1.1. Garc a
therefore argues that his statement shows that he lacked the
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necessary intent to do bodily harm required for an application of
2A2.2.
United States Sentencing Guidelines 3E1.1, cmt., note
1(a), provides that considerations in determining whether a
defendant qualifies for the Acceptance of Responsibility
reduction include "truthfully admitting the conduct comprising
the offense(s) of conviction, and truthfully admitting or not
falsely denying any additional relevant conduct . . . ."
We do not believe that, by granting Garc a a reduction
for acceptance of responsibility, the court was required to
accept Garc a's statement that he lacked the intent to cause
bodily harm as conclusive. The court may have disregarded
Garc a's statement as a self-serving prevarication that was
insufficient to negate stronger inferences drawn from the record
which suggested that Garc a did in fact have the requisite
intent.
At sentencing, the court concluded:
It seems to me that under these
circumstances it is not possible to come
to the conclusion that what the Defendant
is telling us at this point in time is
actually what was on his mind at the time
the incident occurred, that he certainly
didn't want to strike the officers but if
he had to he was prepared to do it.
That's enough, it seems to me, to make
this an aggravated assault.
The district court found that Garc a had the requisite
intent to cause bodily harm and adjusted the offense level
accordingly. Garc a aimed his car straight at Agent Lennon and
each of the officers in turn. Agent Lennon was forced to jump
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onto a parked car to avoid being hit. This certainly supported
the inference that Garc a intended to cause serious bodily harm.
The district court did not abuse its discretion in concluding
that Garc a had such an intent.
Alternatively, Garc a contends that the district court
engaged in impermissible "double counting" because the four-level
increase in the base offense level under 2A2.2(b)(2)(B) for use
of a dangerous weapon was based on the same use of a dangerous
weapon that formed the predicate for finding the underlying
offense an "aggravated assault" with a base offense level of 15
under U.S.S.G. 2A2.2, rather than a "minor assault" that would
have had a base offense level of 6 under U.S.S.G. 2A2.3.
As we noted in Newman, 982 F.2d at 673 n.8, the courts
of appeals which have addressed this issue have reached different
conclusions. See United States v. Williams, 954 F.2d 204, 206-08
(4th Cir. 1992) ("double counting required"); but see United
States v. Hudson, 972 F.2d 504, 506-07 (2d Cir. 1992) (expressly
disagreeing with Williams). In Newman, we addressed the
analogous issue of whether a defendant's base offense level can
be increased pursuant to 2A2.2(b)(3)(B) for causing "serious
bodily injury," notwithstanding the fact that the same factor
formed the predicate for finding the underlying offense of
interference with civil rights under color of law, see U.S.S.G.
2H1.4(a)(2), to be an aggravated assault under U.S.S.G. 2A2.2.
We concluded that where a sentencing court calculated a
defendant's base offense level in exact accordance with the plain
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language of the applicable sentencing guidelines, and the
guidelines addressing the crime of conviction reflect that they
were drafted with the excesses of "double counting" clearly in
mind, the sentencing court did not err in increasing the
defendant's base offense level pursuant to 2A2.2(b)(3)(B). See
Newman, 982 F.2d at 672-75. In United States v. Reese, 2 F.3d
870 (9th Cir. 1993), cert. denied, 114 S. Ct. 928 (1994), the
Ninth Circuit relied on Newman when it rejected a double counting
challenge by defendants whose sentences were enhanced under
2A2.2(b) for use of a weapon and infliction of bodily injury
after they were convicted of federal civil rights crimes. Reese,
2 F.3d at 896.
We do not believe that the court's enhancement of
Garc a's sentence under 2A2.2(b)(2)(B) for use of an inherently
dangerous weapon constitutes impermissible double counting.
Rather, we agree with the Reese court's interpretation of this
situation:
[T]he use of a weapon transform[s] . . .
[the] 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.
Reese, 2 F.3d at 896 n.2 (criticizing Hudson).
Garc a next contends that the district court erred in
increasing his base offense level by two levels pursuant to
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U.S.S.G. 3C1.1, entitled "Obstructing or Impeding the
Administration of Justice."
United States Sentencing Guidelines 3C1.1 states, in
pertinent part, that a two-level enhancement is warranted "[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." The commentary includes a non-exhaustive list of types
of conduct to which the enhancement applies. One of the examples
listed is "destroying or concealing . . . evidence that is
material to an official investigation or judicial proceeding . .
. or attempting to do so." U.S.S.G. 3C1.1, cmt., note 3(d).
Garc a argues that the record did not support the
finding that he threw any heroin out the car window while being
pursued by the arresting officers. We disagree.
The district court specifically found that Garc a threw
heroin out the window of his car. The following evidence
supports this finding: 1) Detective Col n, an experienced
narcotics detective, observed what he believed to be heroin in
Garc a's lap; 2) Ladou's written statement to the police
acknowledging that McMullen had paid him to drive him from New
Bedford, Massachusetts, to Providence, Rhode Island, to "do a
deal" with a Puerto Rican male in a black car; and 3) it was
undisputed that Garc a threw something, including cash, from the
car as he fled from the police. Additionally, the record supports
the inference that Garc a was McMullen's heroin source and that
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McMullen had purchased heroin from Garc a in the past. The
court's findings that Garc a threw a quantity of heroin out the
window was not clearly erroneous.
Garc a next contends that even if the record did
support such a finding, 3C1.1 expressly excludes his conduct
from the scope of the enhancement. He maintains that his conduct
was "a spontaneous or visceral or reflexive response occurring at
the point arrest [became] imminent" to which 3C1.1 does not
apply. See United States v. Sykes, 4 F.3d 697, 699 (8th Cir.
1993).
Garc a incorrectly assumes that the spontaneity of his
response will shield him from the two-level enhancement for
obstruction of justice. The comment to 3C1.1 provides that
where the conduct "occurred contemporaneously with arrest (e.g.,
attempting to swallow or throw away a controlled substance), it
shall not, standing alone, be sufficient to warrant an adjustment
for obstruction unless it resulted in a material hindrance to the
official investigation or prosecution of the instant offense or
the sentencing of the offender." U.S.S.G. 3C1.1, cmt., note
3(d). Therefore, a district court properly applies the
enhancement where it properly concludes that a defendant's
actions materially hinder an investigation, prosecution, or
sentencing.
The drugs that Garc a allegedly tossed out the window
were never recovered. The record permits the inference that the
absence of this evidence hindered the prosecution's ability to
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pursue a conviction on the drug count after its main witness,
McMullen, refused to cooperate with the prosecution. Under these
circumstances, the district court did not err in finding that the
prosecution was materially hindered by Garc a's actions.
As a final challenge, Garc a contends that the district
court erred in increasing his base offense level by three levels
pursuant to U.S.S.G 3A1.2, entitled "Official Victim." That
section provides for a 3-level increase if:
(a) the victim was a government officer
or employee; a former government 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.
U.S.S.G. 3A1.2.
Garc a contends that in order for the increase under
3A1.2 to be properly assessed, the assault must have been
either motivated by the officer's status, or conducted in a
manner creating a substantial risk of serious bodily injury.
Garc a argues that neither of these circumstances have been shown
to be present in this case. Contrary to Garc a's contentions, we
find that the record supports a finding that Garc a's actions
were both motivated by the officer's status and conducted in a
manner creating a substantial risk of serious bodily injury.
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The district court found that in aiming his car at
the officers, Garc a was attempting to evade arrest. The
district court stated:
That the evidence is that the police
approached the vehicle and announced that
they were the police. That under the
circumstances it seems quite clear that
the Defendant was aware that the people
who were seeking to take him into custody
were police officers and, therefore, that
objection is overruled.
The record supports the court's finding. It indicates
that Garc a knew that the police officers were approaching him.
As they approached the car, the agent and the officers displayed
their identification and weapons and yelled, "police." One of
the officers was in uniform and used his marked cruiser, with its
emergency lights activated, to block Garc a's egress.
Additionally, the record supports the conclusion that
Garc a's conduct created a substantial risk of bodily injury.
Agent Lennon had to jump out of the way to avoid being struck by
Garc a's car. Garc a's conduct also gave rise to a police chase
which motivated the police officers to fire their weapons,
creating an additional substantial risk. These circumstances
warranted application of the official victim enhancement. In so
finding, the district court did not abuse its discretion.
Affirmed.
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