United States Court of Appeals
For the First Circuit
No. 99-1806
UNITED STATES,
Appellee,
v.
CARLOS JOSE ZARAGOZA-FERNANDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Selya, Stahl and Lynch,
Circuit Judges.
Edgardo Rodriguez-Quilichini, Assistant Federal Public
Defender, and Joseph C. Laws, Jr., Federal Public Defender, on
brief for appellant.
Nelson Perez-Sosa, Assistant United States Attorney, Jorge
E. Vega-Pacheco, Assistant United States Attorney, and Guillermo
Gil, United States Attorney, on brief for appellee.
June 29, 2000
STAHL, Circuit Judge. On January 12, 1999, defendant-
appellant Carlos J. Zaragoza-Fernandez pleaded guilty to a two-
count indictment charging him with assault within the maritime
and territorial jurisdiction of the United States, see 18 U.S.C.
§§ 7, 113 (Count I); and assaulting, resisting, or impeding a
United States military police officer, see 18 U.S.C. §§ 7,
111(a), 1114 (Count II). This appeal challenges the sentence
the district court imposed with respect to Count II. We affirm.
I.
On November 1, 1998, defendant appeared at the
community club of the U.S. Army Garrison, Fort Buchanan, Puerto
Rico, where his ex-wife, Rosaura Rivera, was dancing with
another person. Defendant appears to have had a history of
stalking Rivera, as she had obtained a number of restraining
orders against him. In any event, defendant approached Rivera
after she left the dance floor, spoke with her briefly about
their children, and then punched her in the face.
Defendant immediately exited the club and fled in his
car. The military police were notified and given a description
of defendant and the car. A military police vehicle gave chase.
Meanwhile, military policeman Brian W. Roate, who was assigned
to the front gate area of the base, was radioed and advised of
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the assault and attempted escape. The outbound lane of Fort
Buchanan then was blocked by a military police vehicle. As
defendant approached the gate in the outbound lane, he veered to
the right around the roadblock and drove onto the adjacent
grassy median. At this point, Roate stepped in front of the
passenger side of the car, waved his baton, and yelled for
defendant to stop. Defendant did not stop; instead, he drove
directly at Roate. Roate attempted to get out of the way, but
received a glancing blow on the right knee as defendant drove
past him. Roate then chambered a round in his 9mm sidearm, but
did not shoot at defendant because another officer was in his
line of fire. Roate was not injured in the collision.
Defendant successfully escaped the confines of the base but was
apprehended later.
In sentencing defendant on Count II – the Count
pertaining to the incident with Officer Roate – the district
court set defendant's base offense level at fifteen because it
concluded that the assault on the military police officer was
"aggravated" within the meaning of U.S.S.G. § 2A2.2. In doing
so, the court determined that defendant's assault on Roate
"involved . . . a dangerous weapon with intent to do bodily
har m (i.e., not merely to frighten)." Id. cmt., application
note 1. The court then enhanced the offense level by three
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because defendant brandished or threatened to use a dangerous
weapon (i.e., the car) in connection with the aggravated
assault, see id. § 2A2.2(b)(2); and by three additional levels
because the aggravated assault created the risk of serious
bodily injury and because defendant had reasonable cause to know
that the victim of the aggravated assault was a law enforcement
officer, see id. § 3A1.2(b). Finally, the court adjusted the
offense level downward by three to account for defendant's
acceptance of responsibility. See id. § 3E1.1. This yielded a
total offense level of eighteen and, because defendant was in
Criminal History Category II, a guideline sentencing range of
30-37 months. The court then sentenced defendant to 37 months
on Count II.
II.
On appeal, defendant presses two arguments. First, he
contends that the district court clearly erred in applying the
aggravated assault guideline, U.S.S.G. § 2A2.2, instead of a
milder guideline applicable to one who merely obstructs or
impedes a government officer, id. § 2A2.4, because there was no
showing that defendant intended to cause Roate serious bodily
injury. See United States v. Garcia, 34 F.3d 6, 10-11 (1st Cir.
1994) (reviewing deferentially a fact-based determination to
apply U.S.S.G. § 2A2.2 on grounds that the defendant intended to
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cause the victim serious bodily injury). Second, he asserts
that the court clearly erred in applying the official victim
enhancement in U.S.S.G. § 3A1.2 because there was insufficient
evidence that the assault was motivated by Roate's status as a
law enforcement officer or that the assault created a
substantial risk of serious bodily injury.1 See Garcia, 34 F.3d
at 13 (reviewing deferentially a fact-based decision to enhance
under U.S.S.G. § 3A1.2). Two subsidiary factual arguments drive
these contentions: (1) the evidence showed "only that defendant
intended to escape or, at worst, to frighten" Roate (Defendant's
Brief at 12); and (2) defendant's Attention Deficit
Hyperactivity Disorder (ADHD) prevented defendant from forming
the requisite intent to injure Roate.
We reject the two factual arguments on which
defendant's appeal necessarily depends. Taking the latter
argument first, we think it suffices simply to say that the
record as to defendant's psychological profile in no way compels
1
Because we must sustain the official victim enhancement
under U.S.S.G. § 3A1.2 if the court did not clearly err in
finding that defendant had reasonable cause to know that Roate
was a law enforcement officer and assaulted Roate in a manner
creating a substantial risk of serious bodily injury, see id. §
3A1.2(b), and because we think it obvious that the same evidence
supporting the court's decision to apply U.S.S.G. § 2A2.2 also
supports such a finding, see infra, we do not separately address
whether there was sufficient evidence to support a conclusion
that the assault on Roate was motivated by Roate's status as a
law enforcement officer, see U.S.S.G. § 3A1.2(a).
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the conclusion that defendant's ADHD prevented him from forming
the mens rea necessary to commit an aggravated assault at the
relevant point in time. As to the former argument, we think it
conclusive that, in Garcia, as here, the sentencing judge
applied U.S.S.G. § 2A2.2 to circumstances in which the
defendant, in order to facilitate a vehicular escape, "merely"
drove his car at the official victims in order to facilitate an
escape. See id. at 9. We held that the application of U.S.S.G.
§ 2A2.2 was within the court's authority in such a circumstance,
even if the court believed that Garcia did not actually want to
strike and injure the officers, but simply was prepared to do so
if need be. See id. at 11 (reproducing a quotation from the
judge which tends to suggest that this was the court's belief
and then affirming the finding); see also United States v.
Valdez-Torres, 108 F.3d 385, 388 (D.C. Cir. 1997) (affirming
application of U.S.S.G. § 2A2.2 where defendant accelerated his
car toward a law enforcement officer and ignored a shouted
warning that he stop, and rejecting the argument that this
evidence only showed an intent to escape or, at most, frighten);
cf. United States v. Morris, 131 F.3d 1136, 1138 (5th Cir. 1997)
(affirming application of U.S.S.G. § 2A2.2 where the defendant
swerved his car into a pursuing law enforcement officer's car,
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and rejecting argument that such evidence was insufficient to
show an intent to injure).
Here, there was abundant evidence that defendant saw
Roate in front of his car, had reason to appreciate that he was
a law enforcement officer, continued to drive at him, and was
prepared to strike him with his car if necessary to effectuate
his escape. Indeed, the evidence suggested that defendant
actually struck Roate with his car, and that Roate might well
have sustained serious injuries had he not managed to get
everything but his right knee out of the way. Under the
circumstances, and in light of precedent, the district court did
not clearly err in concluding that defendant committed an
aggravated assault upon Roate. And given these same facts, the
court did not clearly err in finding that defendant assaulted
Roate with reasonable cause to believe that Roate was a law
enforcement officer and in a manner creating a substantial risk
of serious bodily injury. Defendant's sentence on Count II is
thus beyond reproach.
Affirmed.
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