UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4912
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLIE WAYNE BRYANT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:11−cr−00072−MOC−1)
Argued: October 29, 2013 Decided: January 14, 2014
Before KEENAN, WYNN, and THACKER, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
opinion. Judge Wynn wrote the opinion, in which Judge Keenan
and Judge Thacker joined.
ARGUED: Cindy Helene Popkin-Bradley, CINDY H. POPKIN-BRADLEY
ATTORNEY AT LAW, Raleigh, North Carolina, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:
Defendant Charlie Wayne Bryant pled guilty to assault on a
federal officer or employee, in violation of 18 U.S.C. §
111(a)(1) and (b). The charge arose from an altercation between
Defendant and a security officer at the Social Security
Administration (“SSA”) building in Gastonia, North Carolina.
After denying Bryant’s motion to withdraw his guilty plea, the
district court applied United States Sentencing Guidelines
(“U.S.S.G.”) § 2A2.2 and sentenced Defendant to a 130-month
sentence, which was within the Guidelines range.
On appeal, Defendant challenges both the validity of his
guilty plea and his sentence. First, Defendant argues that the
district court abused its discretion by denying his motion to
withdraw his guilty plea, which he contends lacked a factual
basis and was not knowing and voluntary. Second, Defendant
argues that the district court used the incorrect Guidelines
provision to calculate his sentence. For the reasons discussed
below, we affirm Defendant’s guilty plea. However, we are
unable to conclude that the district court applied the proper
sentencing guideline. We therefore vacate Defendant’s sentence
and remand for resentencing.
2
I.
A.
In February 2011, Defendant was a forty-five-year-old
homeless man with a long criminal record and a history of
chronic mental illness. Late on February 7, 2011, or early on
February 8, 2011, Defendant had the Gaston Emergency Medical
Services take him to King’s Mountain Hospital in Gaston County,
North Carolina. He told the examining physician that he felt
like he was “becoming bipolar” and that he had not been able to
obtain an appointment with his regular doctor. J.A. 279. The
examining physician diagnosed Defendant with “Anxiety” and
concluded that Defendant was “appropriate for outpatient
management.” The hospital discharged Defendant at 4:13 a.m.
Later that day, Defendant made his way to the SSA office to
inquire about his Social Security benefits. The claims
representative who assisted Defendant said that Defendant was
“constantly talking” but making “mostly irrelevant” statements
that “did not make much sense.” J.A. 270. At times, Defendant
became loud and disruptive, which prompted the security officer,
Edward Seigle, to approach Defendant and ask him to lower his
voice. Eventually, Defendant found himself “in a scuffle” with
Seigle. J.A. 157.
Although the eyewitnesses disagree over exactly how this
“scuffle” started, the witnesses agree that Defendant and Seigle
3
ended up on the floor of the public restroom with Seigle
struggling to control Defendant, who was thrashing wildly. It
was not until two additional SSA employees, Brandon Vallier and
Hubert Davidson, intervened that the three men were able to
subdue and handcuff Defendant. A short time later, the Gastonia
Police Department arrived and took custody of Defendant. While
the police were removing him from the SSA office, Defendant said
to Seigle, “I will catch you on the street.” During the
struggle Seigle sustained a cut on his lip that required one
stitch.
B.
On December 8, 2011, Defendant pled guilty without a plea
agreement to a one-count indictment charging him with violation
of 18 U.S.C. § 111(a)(1) and (b). The indictment read as
follows:
Charlie Wayne Bryant did forcibly
assault, resist, oppose, impede, intimidate,
and interfere with [Seigle] while [Seigle]
was engaged in, and on account of the
performance of [Seigle’s] official duties,
and in the commission of the offense, did
make physical contact with the victim, . . .
inflicting bodily injury, in violation of
Title 18, United States Code, Section
111(a)(1) and (b).
J.A. 10. The government explained that the “charge is one
violation of Title 18, United States Code, Section 111(a)(1) and
(b)” and that “(b), Your Honor, is an alleged enhancement that
4
the defendant inflicted bodily injury on to the victim.” J.A.
14. During the plea colloquy, the magistrate judge asked
Defendant a series of questions, including whether Defendant
understood that the maximum penalty, if convicted, was “20
years’ imprisonment and/or a $250,000 fine.” J.A. 14. The
magistrate judge also asked Defendant the following questions:
Do you understand that the district
judge will not be able to determine the
applicable sentencing guideline range until
after your presentence report has been
prepared and you’ve had an opportunity to
comment on it?
. . . .
Do you also understand that in some
circumstances you may receive a sentence
that’s different, that is, either higher or
lower than that called for by the
guidelines?
. . . .
Do you understand that if the sentence
is more severe than you expected or the
court does not accept the government’s
sentencing recommendation, you’ll still be
bound by your plea and you’ll have no right
to withdraw it?
J.A. 15. Defendant answered “Yes, sir” to all of the questions.
The magistrate judge accepted Defendant’s guilty plea after
finding that the plea was knowingly and voluntarily made.
Several months later, Defendant moved to withdraw his
guilty plea on the grounds that (1) the plea was not knowing and
voluntary because the district court failed to consider a
competency report and order a competency hearing before
accepting the plea; and (2) Defendant was legally innocent due
5
to insanity. The district court found that a formal hearing was
not required because a competency report had found Defendant
competent to stand trial. The district court also found that
Defendant had no meritorious defenses, an issue fully addressed
at the plea hearing. Accordingly, the district court denied
Defendant’s motion to withdraw his guilty plea.
Before sentencing, the probation office prepared a
presentence investigation report (“PSR”) that computed a total
offense level of 28, a criminal history category of VI, and a
Guidelines range of 140–175 months’ imprisonment. The PSR
described the charged offense as a violation of 18 U.S.C. §
111(a)(1) and (b) “by Use of a Deadly Weapon.” J.A. 238.
Defendant’s base offense level of 14 was derived by applying
U.S.S.G. § 2A2.2. Under the enhancements in U.S.S.G. § 2A2.2,
the PSR added 3 levels for the threatened use of the officer’s
firearm, 3 levels for bodily injury, and 2 levels for a
conviction under 18 U.S.C. § 111(b). The PSR also added 6
levels under U.S.S.G. § 3A1.2 because the victim was a
government officer and because the offense of conviction was
motivated by the victim’s status.
Defendant objected to several aspects of the PSR and argued
that U.S.S.G. § 2A2.3 should apply, along with a 2-level
enhancement for causing bodily injury. He argued that he should
receive a 2-level decrease for acceptance of responsibility,
6
resulting in a total offense level of 7. Defendant also
objected to certain factual characterizations in the PSR, the
most important of which was his argument that he never touched
or controlled Seigle’s firearm. The government responded by
arguing that Defendant was not entitled to a reduction for
acceptance of responsibility and by noting that Defendant’s
suggested alternate Guideline (U.S.S.G. § 2A2.3) does not apply
to the charged violation of 18 U.S.C. § 111(a)(1) and (b). The
government stated that “[t]he proper guideline is § 2A2.2, as
applied in the draft PSR[,]” but did not point out U.S.S.G. §
2A2.4 as an alternate. J.A. 231.
On October 26, 2012, the district court conducted the
sentencing hearing and received testimony from Defendant,
Seigle, and four SSA employees who witnessed the events at
issue. Defendant testified that he merely touched Seigle’s
firearm holster in an attempt “to scare him to get off of me.”
J.A. 158. But this testimony conflicted with the testimony of
Davidson, Vallier, and Seigle, who all testified that Defendant
attempted to gain control of Seigle’s firearm. Defendant’s
testimony also differed from the testimony of Special Agent Eric
Long, who had interviewed Defendant on behalf of the Federal
Protective Service on February 11, 2011.
In his testimony, Long recounted how Defendant told him and
another agent that he was, in fact, reaching for Seigle’s weapon
7
while they were fighting. According to Long, Defendant stated
during the interview that “I was trying to grab his Glock” and
that “[m]y intentions were to kill him because he was beating
me.” J.A. 147. Defendant testified that he never said this to
Long, and in any event in his “Motion for Reasons of Appeal,”
Defendant explained that little weight should be given to
anything he might have said during that interview because he was
off his medicine and his “mind was racing manic” at the time.
J.A. 202.
After the conclusion of the testimony, and following
arguments from both sides regarding Defendant’s acceptance of
responsibility and the applicability of Section 111(b), the
district court granted a two-level reduction for acceptance of
responsibility, found that Guideline level 26 applied, and
sentenced Defendant to a within-guideline sentence of 130
months. The district court did not explicitly rule on
Defendant’s objections to the PSR but stated that “all of the
findings in the Presentence Report are accepted by the Court
with the exception of taking away . . . the acceptance of
responsibility.” J.A. 167. The district court discussed the
appropriateness of the 130-month sentence, explaining that even
if a higher guideline had applied, it would have granted
Defendant a downward variance to impose a 130-month sentence.
8
The district court made several statements that are in
tension with its adoption of the PSR’s findings and its
application of U.S.S.G. § 2A2.2. During a conversation before
Defendant was present in the courtroom, the government stated
that Section 111(b) was applicable “on the theory that [Seigle]
did receive a bodily injury.” J.A. 72. The district court
responded that “I don’t know that that’s an assault[,]” and
later noted that “this is a huge sentence that this guy gets for
a busted lip.” J.A. 73–74. Following the receipt of the
testimony, the district court also stated that “there’s a
factual basis to show that the defendant did forcibly assault[,]
impede, intimidate[,] and interfere with the officer while he
was carrying out his duty, and there was some bodily injury,
although not much, . . . .” J.A. 164. The district court later
noted that the offense took place “with no weapon involved by
the defendant.” J.A. 168. Defendant argues that these
statements undermine the district court’s adoption of the
findings in the PSR, and thus, the applicability of U.S.S.G. §
2A2.2. Defendant asserts that the facts found by the district
court are insufficient to support either basis for applying
Section 2A2.2: serious bodily injury or involvement of a
dangerous weapon. Defendant further argues that he should have
been sentenced under U.S.S.G. § 2A2.4.
9
II.
With his first argument on appeal, Defendant contends that
the district court erred in denying his motion to withdraw his
guilty plea. Defendant argues that his plea was not knowingly
and voluntarily entered and lacks a factual basis. We disagree.
A.
We review the denial of a motion to withdraw a guilty plea
for abuse of discretion. United States v. Ubakanma, 215 F.3d
421, 424 (4th Cir. 2000). Rule 11(d) of the Federal Rules of
Criminal Procedure affords defendants no absolute right to
withdraw an accepted guilty plea. See United States v. Moore,
931 F.2d 245, 248 (4th Cir. 1991). “If an appropriately
conducted Rule 11 proceeding is to serve a meaningful function,
on which the criminal justice system can rely, it must be
recognized to raise a strong presumption that the plea is final
and binding.” United States v. Lambley, 974 F.2d 1389, 1394
(4th Cir. 1992). After the court has accepted the plea and
before the court has imposed a sentence, “the defendant has the
burden of showing a fair and just reason for withdrawal.”
Ubakanma, 215 F.3d at 424; Fed. R. Crim. P. 11(d).
A fair and just reason “‘essentially challenges’ the
fairness” of the Rule 11 proceedings. Ubakanma, 215 F.3d at 424
(quoting United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir.
1995)). To assist in this determination of fairness, the Fourth
10
Circuit has developed a nonexclusive list of factors to
consider:
(1) whether the defendant has offered
credible evidence that his plea was not
knowing or not voluntary, (2) whether the
defendant has credibly asserted his legal
innocence, (3) whether there has been a
delay between the entering of the plea and
the filing of the motion, (4) whether
defendant has had close assistance of
competent counsel, (5) whether withdrawal
will cause prejudice to the government, and
(6) whether it will inconvenience the court
and waste judicial resources.
Moore, 931 F.2d at 248. “The most important consideration in
resolving a motion to withdraw a guilty plea is an evaluation of
the Rule 11 colloquy at which the guilty plea was accepted.”
United States v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003). We
analyze “the sufficiency of the colloquy under the harmless
error standard.” United States v. Nicholson, 676 F.3d 376, 382
(4th Cir. 2012).
Under Rule 11(b)(1), the defendant must be addressed in
open court and be informed of many things, including the
following: the nature of the charge; any potential penalties,
including mandatory minimum and maximum sentences; the
applicability of the Sentencing Guidelines, including potential
departures from the Guidelines and the 18 U.S.C. § 3553(a)
sentencing factors; the court’s obligation to impose a special
assessment; the defendant’s right to an attorney; his right to
11
plead not guilty and be tried by a jury with the assistance of
counsel; his right to confront and cross-examine witnesses; his
right against self-incrimination; and his right to testify,
present evidence, and compel the attendance of witnesses. He
must also be informed that a guilty plea waives any further
trial and that his answers at the proceeding may be used against
him in a prosecution for perjury. Rule 11(b)(2) requires the
court to determine that the plea is voluntary, and Rule 11(b)(3)
requires the court to determine the factual basis for the plea.
The district court may defer its determination that there
is a factual basis until the sentencing hearing. United States
v. Martinez, 277 F.3d 517, 522 n.4 (4th Cir. 2002). In making
its determination that a factual basis exists, the district
court is not limited to the Rule 11 colloquy. Rather, the court
“may conclude that a factual basis exists from anything that
appears on the record.” United States v. DeFusco, 949 F.2d 114,
120 (4th Cir. 1991). We review the district court’s
determination that there was a factual basis for abuse of
discretion. United States v. Mastrapa, 509 F.3d 652, 660 (4th
Cir. 2007).
B.
In this case, Defendant first argues that his guilty plea
was not knowing and voluntary because the “District Court did
not inquire as to [the] mental health of a mentally ill
12
defendant.” Appellant’s Br. at 18. Although it is undisputed
that Defendant suffers from a variety of mental illnesses,
nothing in the record indicates that his illnesses had any
impact on his competence or his ability to understand the nature
of the proceedings against him. The magistrate judge conducted
a plea hearing that covered all aspects required by Rule 11. In
response to the magistrate judge’s question about whether
Defendant was under the influence of alcohol or drugs, defense
counsel stated “just for the record, it doesn’t affect his
ability to understand today’s proceedings, but he does take a
thousand milligrams of Depakote . . . twice a day at the jail.”
J.A. 13. The magistrate judge then asked, “Is your mind clear
and do you understand that you are here to enter a guilty plea
that cannot later be withdrawn?” Defendant answered, “Yes,
sir.” J.A. 13.
Defendant further argues that he should have received a
competency hearing prior to the acceptance of his guilty plea.
But Defendant does not argue that he was actually incompetent to
stand trial. In fact, we find Defendant’s own appellate brief
persuasive on this point. It states, unequivocally, that “Mr.
Bryant is competent to stand trial.” Appellant’s Br. at 22.
Rather, Defendant argues that if the court had held a competency
hearing, “the facts of the crime would have certainly come out
and [Defendant] would have been sure about the facts that he
13
faced.” Appellant’s Br. at 23. Such an argument fundamentally
misunderstands the purpose of a mental competency determination
under 18 U.S.C. § 4241. That statute is designed to ensure that
a defendant is able “to understand the nature and consequences
of the proceedings against him [and] to assist properly in his
defense.” 18 U.S.C. § 4241(a). It is not a fact-finding tool.
Defendant makes much of the fact that his guilty plea was
accepted before the court reviewed the competency report, which
the district court had ordered. Both parties received a copy of
the report in advance of the Rule 11 hearing. Neither party
requested a competency hearing. Most importantly, the
psychological evaluation that the district court ordered found
Defendant to be competent to stand trial. To the extent that
any error occurred, it was harmless.
C.
Defendant next argues that his guilty plea lacked a factual
basis. Defendant’s argument seems to be that Defendant would
not have pled guilty if he had first heard the government’s
version of the facts. We reject this argument for several
reasons.
First, nothing in the record suggests that Defendant did
not have access to the government’s evidence in the case.
Second, Defendant concedes that during the plea colloquy, the
magistrate judge “did inform” him that the district court “would
14
find a factual basis at a later date.” Appellant’s Br. at 24.
Finally, Defendant’s argument regarding the timing of finding a
factual basis is contrary to the settled law in this Circuit.
According to Fed. R. Crim. P. 11(b)(3), “[b]efore entering
judgment on a guilty plea, the court must determine that there
is a factual basis for the plea.” “Because judgment is not
entered until after sentencing, a court may defer the finding of
a factual basis for the plea until that time.” Martinez, 277
F.3d at 522 n.4. As discussed herein, the district court
conducted a hearing at which it received testimony from
Defendant and several witnesses to the offense. This hearing
and the finding of the factual basis for Defendant’s guilty plea
occurred prior to the district court’s entry of judgment against
Defendant. As such, the district court did not abuse its
discretion in finding a factual basis.
III.
With his second argument on appeal, Defendant contends that
the district court erred by applying U.S.S.G. § 2A2.2 instead of
U.S.S.G. § 2A2.4. Defendant specifically argues that no factual
basis exists to support a finding of serious bodily injury or
the involvement of a dangerous or deadly weapon—either of which
would suffice to sentence him under U.S.S.G. § 2A2.2 rather than
under § 2A2.4. Although the facts of the case might support a
15
finding that a dangerous or deadly weapon was involved, we are
not persuaded that the district court actually made such a
finding.
A.
“We review a sentence for reasonableness, applying an abuse
of discretion standard.” United States v. Susi, 674 F.3d 278,
282 (4th Cir. 2012). We first “ensure that the district court
committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
Section 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence . . . .” Gall v. United States, 552 U.S. 38, 51
(2007). Only after we determine that a sentence is free from
significant procedural error do we reach the substantive
reasonableness of a sentence. See id. This Court “review[s]
the district court’s legal conclusions de novo and its factual
findings for clear error.” United States v. Horton, 693 F.3d
463, 474 (4th Cir. 2012) (quoting United States v. Layton, 564,
F.3d 330, 334 (4th Cir. 2009).
Title 18 U.S.C. § 111 makes it a crime to assault, resist,
or impede government officers or employees. One who commits the
prohibited acts by use of a “deadly or dangerous weapon,” or who
inflicts bodily injury, faces a statutory maximum penalty of 20
16
years imprisonment. 18 U.S.C. § 111(b). This Court has held
that “infliction of bodily injury or use of a dangerous or
deadly weapon as used in § 111(b) are offense elements.” United
States v. Campbell, 259 F.3d 293, 298 (4th Cir. 2001). Thus, to
trigger the enhanced twenty-year statutory maximum under 18
U.S.C. § 111(b), the government “must charge and prove beyond a
reasonable doubt at least one of the two additional elements
that defines this separate offense, specifically (1) infliction
of bodily injury or (2) use of a dangerous or deadly weapon.”
Id.
When more than one base offense level could apply to a
particular offense, the sentencing court shall determine the
guideline range by considering “all acts and omissions committed
. . . during the commission of the offense of conviction [and]
any other information specified in the applicable guideline.”
U.S.S.G. § 1B1.3(a)(1), (4). This is often referred to as “the
Relevant Conduct Guideline,” and it requires the sentencing
court to determine a defendant’s offense level based on a
consideration of relevant conduct. See United States v. Hayes,
322 F.3d 792, 802 (4th Cir. 2003) (“[W]hile the guidelines
preserve a broad range of discretion for district courts, a
court has no discretion to disregard relevant conduct in order
to achieve the sentence it considers appropriate.”).
17
Defendants convicted of violating 18 U.S.C. § 111 are
sentenced according to either U.S.S.G. § 2A2.2, which pertains
to aggravated assault and carries a base offense level of 14, or
U.S.S.G. § 2A2.4, which pertains to obstructing or impeding
officers and carries a base offense level of 10. An aggravated
assault is “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.” U.S.S.G. § 2A2.2 cmt. n.1.
The term “dangerous weapon” includes a firearm. U.S.S.G. §
1B1.1 cmt. n.1(D). “Serious bodily injury” is defined as injury
“involving extreme physical pain or the protracted impairment of
a function of a bodily member, organ, or mental faculty; or
requiring medical intervention such as surgery, hospitalization,
or physical rehabilitation.” U.S.S.G. § 1B1.1 cmt. n.1(L).
“Bodily injury,” on the other hand, “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.”
U.S.S.G. § 1B1.1 app n.1(B).
The finding of a factual basis that is sufficient to
support a plea under 18 U.S.C. § 111(b) can be insufficient to
support a sentence for aggravated assault. Section 111(b)
requires either the use of a dangerous weapon or the infliction
of bodily injury; it does not require serious bodily injury.
18
But the Guidelines make clear that a sentence for aggravated
assault requires the sentencing court to find the “presence of
an aggravating factor” such as “the involvement of a dangerous
weapon” or “serious bodily injury.” U.S.S.G. § 2A2.2 cmt.
background. Thus, a defendant who pleads guilty to the offense
element of bodily injury under 18 U.S.C. § 111(b) has not
necessarily admitted to facts that would support a finding
during sentencing that he inflicted “serious bodily injury.” We
turn now to a discussion of the sentencing hearing.
B.
In this case, the government charged the additional offense
element of infliction of bodily injury under 18 U.S.C. § 111(b).
The government proved that element by virtue of Defendant’s
guilty plea following the properly conducted Rule 11 hearing.
As discussed above, the sentencing court properly determined
that a factual basis supported the plea of guilty. Moreover,
the sentencing court properly used the Relevant Conduct
Guideline to consider “all acts . . . committed . . . by the
defendant” during the course of the altercation with Seigle.
U.S.S.G. § 1B1.3(a)(1)(A).
However, two aspects of this case give us pause and leave
us in doubt as to whether the district court intended to apply
U.S.S.G. § 2A2.2 or U.S.S.G. § 2A2.4. First, the PSR’s
description of the charged offense differed from the indictment
19
to which Defendant pled guilty in an important respect: The
indictment contained no reference to the use of a weapon,
whereas the PSR lists the “Charge and Conviction” as assault “by
Use of a Deadly Weapon.” J.A. 238, 241. Put simply, Defendant
did not plead guilty to using a deadly weapon.
The government charged and proved only the bodily injury
element of Section 111(b). 1 But by mischaracterizing Defendant’s
conviction as assault “by Use of a Deadly Weapon,” the PSR
changed the element of Section 111(b) that the government
proved. See Campbell, 259 F.3d at 300 (“[B]odily injury and use
of a dangerous weapon in § 111(b) are offense elements . . .
.”). To be sure, by pleading guilty to the bodily injury
element, Defendant put himself at risk of receiving the maximum
sentence of a 20-year prison term, a contingency of which he was
made aware during his Rule 11 hearing. Thus, even though
Defendant was not charged and convicted of using a deadly
weapon, the sentencing court could nonetheless find that a
dangerous weapon was involved in the offense of conviction and
impose an appropriate sentence. 2 In fact, the sentencing court
1
At the Rule 11 hearing, the government explained that §
111(b) applied because “the defendant inflicted bodily injury on
to [sic] the victim.” J.A. 14.
2
A finding that Defendant inflicted serious bodily injury
would also suffice to sentence Defendant under U.S.S.G. § 2A2.2.
It seems clear from the record, however, that the government
(Continued)
20
is obligated to consider relevant conduct “to achieve the
sentence it considers appropriate.” Hayes, 322 F.3d at 802.
This brings us to our second concern.
Although the district court stated that “all of the
findings in the Presentence Report are accepted,” J.A. 167, the
court made other statements that belie this finding. 3 For
example, when the district court summarized the factual basis
for the guilty plea, it stated that “there’s a factual basis to
show that [Defendant] did forcibly assault[,] impede, intimidate
and interfere with the officer while he was carrying out his
never argued that Seigle’s cut lip, which required a single
stitch, was a serious bodily injury. Additionally, the district
court noted that “there was some bodily injury, although not
much.” J.A. 164. Therefore, we are unable to sustain
Defendant’s sentence under the alternate ground of serious
bodily injury in U.S.S.G. § 2A2.2.
3
We note that Defendant filed two memoranda that raised
sentencing issues. The first was titled “Defendant’s Objection
to Presentence Report,” and it was filed on August 16, 2012.
J.A. 222–25. The second was titled “Defendant’s Position
Concerning Sentencing,” and it was filed on October 25, 2012,
the day before the sentencing hearing. J.A. 260–264. The
record contains no indication that the district court explicitly
addressed either of these memoranda or ruled on the parts of the
PSR that remained in dispute. See Fed. R. Crim. P. 32(i)(3)(B)
(“[F]or any disputed portion of the presentence report . . .
[the court must] rule on the dispute or determine that a ruling
is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in
sentencing[.]”). For the reasons stated below, we are unable to
conclude that the district court implicitly ruled on those
objections to the PSR that remained at the time of Defendant’s
sentencing.
21
duty, and there was some bodily injury, although not much[.]”
J.A. 164. Standing alone, this would be unremarkable because
the district court was merely reciting the terms of the
indictment to which Defendant pled guilty. But, the district
court later noted that the offense took place “with no weapon
involved by the defendant.” J.A. 168. This statement
undermines the district court’s acceptance of “all of the
findings” in the PSR, in particular, those findings that pertain
to the involvement of a dangerous weapon. If no dangerous
weapon was involved, U.S.S.G. § 2A2.2 cannot apply.
This is not to say that the district court must apply
U.S.S.G. § 2A2.4. To the contrary, the district court heard
facts that might support its application of U.S.S.G. § 2A2.2 via
the Relevant Conduct Guideline, U.S.S.G. § 1B1.3. For example,
Seigle, Davidson, and Vallier all testified that Defendant was
grabbing for Seigle’s gun. Defendant himself admitted that he
was attempting to scare Seigle by touching his holster. And
Special Agent Long testified that Defendant told him that he was
attempting to grab Seigle’s “glock” and that if he had been
successful, he would have killed Seigle.
We choose not to speculate what the district court might
have intended in this case. Defendant’s sentence would be
vastly reduced if no weapon was involved and U.S.S.G. § 2A2.4,
rather than U.S.S.G. § 2A2.2, applies. We therefore vacate
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Defendant’s sentence and remand to the district court for
additional factual findings and resentencing. At a minimum, the
PSR must be revised to incorporate the correct conviction.
IV.
For the foregoing reasons, we affirm the judgment of the
district court as to the denial of Defendant’s motion to
withdraw his guilty plea. We vacate and remand for resentencing
consistent with this opinion.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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